Religious Beliefs and Discrimination: an analysis of 303 Creative LLC. v Elenis

By: Isabel Machlab

Edited By: Clark Mahoney and william tong

In summer 2012, Charlie Craig and Dave Mullins entered Masterpiece Cakeshop in Lakewood, Colorado, looking for a cake for their upcoming wedding.[1] There, they met the owner and baker, Jack Phillips, who told them that he didn’t make wedding cakes for same-sex weddings because of his religious beliefs. He explained that he would sell them other baked goods for other events, but not for a same-sex wedding. The couple filed a complaint against the bakery to the Colorado Civil Rights Commission for violating the Colorado Anti-Discrimination Act (CADA), a law that prohibits discrimination by interprises that provide goods to the public.[2][3] The Commission ordered the case to be heard by a state Administrative Law Judge. The judge ruled in favor of the couple, and the ruling was upheld by the Commission and the Colorado Court of Appeals.

When the Supreme Court of the United States accepted the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018) for an official hearing, many people expected the outcome to dictate the government’s stance on the debate between protecting same-sex marriages and protecting the rights of religious individuals.[4] In fact, Justice Kennedy stated that the case brought  to question two important and oftentimes conflicting topics. He wrote, “the first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here are both the freedom of speech and the free exercise of religion.”

The court, avoiding the debate, ruled that the Commission did not apply the First Amendment in a just manner. During the initial hearings, members of the state Civil Rights Commission contended that religious beliefs can’t exist in the public – an assertion that is inconsistent with the First Amendment's protection of religion. Justice Kennedy cited “hostility” toward religion that discredited the ruling as a whole. In the end, the court reversed the decision of the Colorado Court of Appeals and ordered that “the outcomes of cases like this in other circumstances must await further elaboration in the courts.”

On December 5, the US Supreme Court began to revisit very similar topics that were on the table during the 2018 case. Although the case is slightly different, the same Colorado law is being looked at. This case, 303 Creative LLC v. Elenis, asks many of the same questions that were asked during Masterpiece Cakeshop v. Colorado Civil Rights Commission.

303 Creative LLC is a service that provides marketing and website design services to businesses and individuals.[5] The founder, Lorie Smith, is a devout Christian who does not support same-sex marriages. In 2016, she wanted to post a message on her company’s website informing customers that she wouldn’t provide website services for same-sex weddings because of her religious beliefs. Publishing such a message is illegal under CADA, so 303 Creative filed a pre-enforcement challenge arguing that CADA is unconstitutional.[6][7] The court opinion explains:

“Appellants alleged a variety of constitutional violations, including that CADA’s Accommodation Clause and Communication Clause violated the Free Speech and Free Exercise Clauses of the First Amendment, and that CADA’s Communication Clause violated the Due Process Clause of the Fourteenth Amendment because it was facially overbroad and vague.” 

Both of these cases ask, “Does a business have a constitutional right to discriminate based on its owner’s beliefs?” [8] The second case, however, is different because it questions the constitutionality of a law that protects against discrimination – more specifically discrimination on the basis of sexual orientation.

Another question that this raises – one that has been raised time and time again – is a question regarding contradicting rights. In these two cases, both plaintiffs felt that their religious rights were being taken away. The way in which they want to exercise their religious beliefs, however, strips LGBTQ+ customers of their own protected rights. It boils down to the idea that the identity of one American is contradictory to the religious belief of another. So, should the government be able to protect the right to exercise a religious belief if that exertion violates the constitutional right of another?  Furthermore, does the government have the legal and moral responsibility to prevent discrimination based on religion, and when – if ever – would that violate the first amendment right to freedom of religion?

When the Supreme Court heard Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018, they did not make a ruling that answered these questions. Because the Supreme Court accepted 303 Creative LLC v. Elenis – a case that looks at similar questions – it is possible that there will be a more definitive answer. Additionally, the Supreme Court has more conservative justices today than in 2018. All in all, with a larger majority and the court's acceptance of a case that is nearly identical to the one heard four years ago, it is likely that we will see a ruling that gives an answer to the questions at hand.

If the Supreme Court’s decision sets precedent, it will have a resonating effect across the country. There are currently many efforts to strip away rights from LGBTQ+ Americans. According to the Human Rights Campaign, there have been “more than 300 anti-LGBTQ+ bills introduced in states across the country.”[9] Twenty-three states have introduced these bills, and thirteen have signed them into law. Although this decision won’t hold binding legal precedent on many of these bills, it will signal what values define the current court and what values are being upheld in the American legal system today.

NOTES:

1. Masterpiece Cakeshop, LTD., Et Al. v. Colorado Civil Rights Commission Et Al. 584 U.S. 4 2018

2. “About Us | Colorado Civil Rights Division.” Accessed November 8, 2022. 

3. One Colorado. “Discrimination.” Accessed November 8, 2022. https://one-colorado.org/lgbtq-resources/anti-discrimination-laws-colorado/.

4. “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple.” Liptak, The New York Times, June 4, 2018, sec. U.S. 

5. “303 Creative – 303 Creative.” Accessed November 8, 2022. https://303creative.com/.

6. 303 Creative LLC v. Elenis, 19-1413, 2021 D.C. No. 1:16-CV-02372-MSK-CBS

7. “Supreme Court Report: 303 Creative LLC v. Elenis, 21-476,” Schweitzer

8. “Not a Masterpiece: The Supreme Court’s Decision in Masterpiece Cakeshop v. Colorado Civil Rights Commision,” Chemerinsky

9. “United Against Hate – Flighting Back on State Legislative Attacks on LGBTQ+ People,” Human Rights Campaign

BIBLIOGRAPHY:

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018), 59.

“303 Creative – 303 Creative.” Accessed November 8, 2022. https://303creative.com/.

“About Us | Colorado Civil Rights Division.” Accessed November 8, 2022. https://ccrd.colorado.gov/about-us.

Hasan, Zayn. “Supreme Court Report: 303 Creative LLC v. Elenis, 21-476.” National Association of Attorneys General, March 9, 2022. https://www.naag.org/attorney-general-journal/supreme-court-report-303-creative-llc-v-elenis-21-476/.

Human Rights Campaign. “The State Legislative Attack On LGBTQ+ People.” Accessed November 8, 2022. https://www.hrc.org/campaigns/the-state-legislative-attack-on-lgbtq-people.

Liptak, Adam. “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple.” The New York Times, June 4, 2018, sec. U.S. https://www.nytimes.com/2018/06/04/us/politics/supreme-court-sides-with-baker-who-turned-away-gay-couple.html.

“Not a Masterpiece: The Supreme Court’s Decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission.” Accessed November 8, 2022. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/not-a-masterpiece/.

One Colorado. “Discrimination.” Accessed November 8, 2022. https://one-colorado.org/lgbtq-resources/anti-discrimination-laws-colorado/.

Wolpert, Christopher M. “UNITED STATES COURT OF APPEALS July 26, 202,” n.d., 103.

The True Cost of Arbitration in the Workplace

By: Kate Drum

Edited By: Maayan Abouzaglo and Christine Mao

In the past few decades, the usage of mandatory arbitration agreements has become exceedingly prevalent in the workplace. The agreements, which are a part of employment contracts, require an employee to consent to the process of having a third-party arbitrator settle workplace disputes. Through these agreements, employees are legally bound to resolve disputes through a third-party alternative to the traditional judicial system. [1] Employers typically hire third-party private firms to provide arbitration because the legal process is more expedited and more cost-effective than a court trial. Given that the employees waive their rights to a trial, however, the usage of mandatory arbitration has drawn a significant amount of attention and criticism since its rise. In fact, in 2022, the House of Representatives passed the Force Arbitration Injustice Repeal (FAIR) act,  which banned the usage of mandatory arbitration in the workplace. [2] Ultimately, these agreements violate an employee’s right to seek justice, may cause severe pragmatic harm to workers in the agreement process, and substantially limit the accountability of companies. 

The U.S. Constitution gives citizens the right to court trial by jury if they have been injured by another party. While courts are not perfect, they have checks and balances – , such as juries, judicial review, and an appeals process – to ensure civilians equal access to justice. Fundamentally, mandatory arbitration challenges core tenets of equity within the court system. At the most basic level, employees involved in arbitration have no rights to written records, discovery, or procedural transparency. [3] There is also no official judicial review or appeals process involved with mandatory arbitration. In addition, employees are not guaranteed an arbitrator who is trained or unbiased. With arbitration, employees are not able to file for group action suits, which deters a substantial portion of employees from bringing forward their concerns because of cost. In short, employees remain at a severe disadvantage compared to employers in the arbitration process. Specifically, this precedent is characterized by the notion that companies can have so much power over their employees that they are capable of violating and overriding the justice system. The precedent ensures an unequal distribution of power in the workplace and calls into question the validity of the judicial process. 

Aside from the principled damage mandatory arbitration causes to employees, opponents of the practice identify several practical implications of the process  as well. Specifically, employees tend to consistently lose to employers in mandatory arbitration suits. A study conducted by the California Law Review found that “employees only won about 20-30 percent of the time in  arbitration, as compared to 50 percent in state court.” [4] The cause of this discrepancy between win rates in arbitration cases, as opposed to the court system, can be explained by the innate power employers hold throughout the process. If an employer is responsible for paying for the arbitrator, as they are in virtually every case, the arbitrator or arbitration firm has a natural incentive to vote in favor of the employer. Not only does mandatory arbitration decrease the chances of employees winning their cases, but it also often leads to smaller award damages for employees. [5] The reality of these arbitration outcomes may deter employees from raising their concerns when faced with abusive and intolerable workplace environments because they believe there is no effective forum for hearing their complaints. 

The social implications of mandatory arbitration also extend beyond the individual level, impacting society writ large. Typically, nonfrivolous lawsuits against companies can drastically impact societal perceptions of the business. For instance, if a company is being convicted in a court of illegal activity or, specifically, mistreating its workers, the company may face a significant amount of negative backlash from the public. Such reactions have the power to decrease consumer investment in the company or its products. In this way, official lawsuits allow the public to hold companies accountable and, as a result, potentially incentivise organizations to act ethically and appropriately within the law. However, when all workplace disagreements, including particularly egregious cases of misconduct by companies, are kept out of public view and strictly behind closed doors, deleterious and toxic companies can continue to dominate markets and prosper in spite of their wrongdoing. 

While mandatory arbitration has several fundamental flaws, the practice is still widely popular. Proponents often claim that mandatory arbitration makes settling disputes more accessible to employees, given the typically high cost of solving problems through the court system. But even if the cost is lower with mandatory arbitration, if employees can scarcely access proper solutions and compensation for their problems, then the low cost of the practice is less relevant. Mandatory arbitration has and will continue to favor companies and corporations above individuals. The United States champions the notion that everyone and anyone must have access to a fair trial. But with mandatory arbitration continuing to grow and becoming increasingly prominent, all workers stand to lose both their rights and their cases.

NOTES:

[1] Colvin, Alexander J.S. “The Growing Use of Mandatory Arbitration: Access to the Courts Is

Now Barred for More than 60 Million American Workers.” Economic Policy Institute, 27 Sept.

2017, www.epi.org/publication/the-growing-use-of-mandatory-arbitration/.

[2] H.R.963 - 117th Congress (2021-2022): Fair Act of 2022.

www.congress.gov/bill/117th-congress/house-bill/963.

[3] Colvin, Alexander J.S. “The Growing Use of Mandatory Arbitration: Access to the Courts Is

Now Barred for More than 60 Million American Workers.” Economic Policy Institute, 27 Sept.

2017, www.epi.org/publication/the-growing-use-of-mandatory-arbitration/.

[4] Frankel, Alison. “Sweeping New Arbitration Study: 'Enterprising' Plaintiffs' Lawyers Adapt.”

Reuters, Thomson Reuters, 12 Sept. 2018,

www.reuters.com/article/us-otc-arbitration/sweeping-new-arbitration-study-enterprising-plaintiff

s-lawyers-adapt-idUSKCN1LS2YK.

[5] “Employer-Mandated Arbitration V. the Working Poor.” Georgetown Law,

www.law.georgetown.edu/poverty-journal/blog/employer-mandated-arbitration-v-the-working-p

oor/.

BIBLIOGRAPHY:

Congress.gov. "H.R.3239 - 116th Congress (2019-2020): Humanitarian Standards for Individuals in Customs and Border Protection Custody Act." July 25, 2019. https://www.congress.gov/bill/116th-congress/house-bill/3239.

Colvin, Alexander J.S. “The Growing Use of Mandatory Arbitration: Access to the Courts

Is Now Barred for More than 60 Million American Workers.” Economic Policy Institute,

27 Sept. 2017, www.epi.org/publication/the-growing-use-of-mandatory-arbitration/.

“Employer-Mandated Arbitration V. the Working Poor.” Georgetown Law,

www.law.georgetown.edu/poverty-journal/blog/employer-mandated-arbitration-v-the-work

ing-poor/.

Frankel, Alison. “Sweeping New Arbitration Study: 'Enterprising' Plaintiffs' Lawyers

Adapt.” Reuters, Thomson Reuters, 12 Sept. 2018,

www.reuters.com/article/us-otc-arbitration/sweeping-new-arbitration-study-enterprising-pl

aintiffs-lawyers-adapt-idUSKCN1LS2YK.

H.R.963 - 117th Congress (2021-2022): Fair Act of 2022.

www.congress.gov/bill/117th-congress/house-bill/963.

Decayed Detention Standards and Unfulfilled Legal Change

By: Sarah Wachs

Edited By: christine mao and william tong

Throughout the news and social media, it’s not difficult to find pictures of overcrowded cells with people of all ages lying on filth-covered floors. Over the past several years, people have watched as immigrants and refugees are left in the hands of the U.S. Immigration and Customs Enforcement (ICE), whisked away only to be put in cages and treated with little respect for basic rights. As California representative Anna Eshoo observes, immigrants are subjected to days and weeks of overcrowding and a complete lack of proper hygiene.[1] Similarly, the Department of Homeland Security’s Inspector General report revealed serious understaffing, inadequate mental health services, and a lack of clean, running water.[2] 

ICE has standards in place for detention centers to follow for the maintenance of suitable living conditions for immigrants; however, these standards are not often followed. As of 2019, ICE requires detention centers to have access to “appropriate medical, dental, and mental health care, including emergency services.” Detainees are meant to be issued clean clothing, linens, and personal hygiene items, and emergency capacity limits are supposed to be followed.[3] Despite these wide-coverage standards, there is clear evidence based upon images and investigations done by the Department of Homeland Security and others that ICE fails to maintain these standards in detention centers across the country. However, it is not only the public that recognizes these underservices: the immigrants themselves know just as well, and in their struggle, some have managed to bring their grievances to court.

In April 2020, just as the COVID-19 pandemic began to take rise, Faour Abdallah Fraihat brought a case against ICE, claiming that their COVID-19 regulations for detention centers reflected “deliberate indifference” and “reckless disregard” of the medical needs and health risks within these centers.[4] In his case, he aimed for a preliminary injunction that would force ICE to enforce stronger COVID-19 policies, but he ultimately lost.[5] Fraihat is not the only detainee coming to the courts; he is merely one of many whose concerns get overlooked by the judicial system. Rajinder Lehal had his claims of deliberate indifference dismissed against the detention center’s physician because he failed to provide significant evidence of unnecessary infliction of pain.[6] A former detainee, under the legal pseudonym John Roe, had his sexual assault claims against a guard in the detention system dismissed for putting forth a large amount of “shotgun” claims, in which numerous claims are placed forth in hopes that at least one will stick in court.[7] These men are among numerous immigrants whose claims are dismissed by the courts with hardly any consideration of the individual circumstances.

Amongst these cases, judicial restraint reigns strong. While the courts wield the power of judicial review and have the ability to interpret the law in new ways to set precedents that would change the future application of laws, they often shy away from this power in immigration cases. Instead, they take comfort in judicial restraint, meaning that they do not allow for new interpretations and hold an inflexible lens upon the law.[8] With judicial review often comes activism and change; with restraint they fall short of helping those who need said change. For Fraihat, Lehal, and Roe, the judges they faced failed to explore new avenues of the law in order to provide substantive justice when they were in need of such. Between refusing to hear someone’s case due to shotgun claims and upholding strict requirements on claims of indifference and neglect, detained immigrants are treated harshly under the current judicial system.

Policymakers and politicians have noted these issues and have attempted to push for legislation that would grant more support to immigrants and uphold humane standards within detention centers. As noted earlier, Congresswoman Anna Eshoo visited a detention center in Texas in 2019 and reported the conditions as a “humanitarian crisis” and called for reform for proper standards to be upheld. Numerous other legislators have taken action, through giving public statements, issuing letters urging ICE and DHS to shut down detention centers or enact changes within them to better protect detainees, and even drafting legislation to codify higher standards of safety for immigrants.[9]

The Humanitarian Standards for Individuals in Customs and Border Protection Custody Act, introduced in the House of Representatives in June 2019, is a strong example of the urge from legislators to enact change on the behalf of detainees. The act proposed standards that would have increased clean water and hygiene standards, food and nutrition, and adequate shelter standards.[10] Notably, the act did not make it through the Senate, having been passed on to the Committee of the Judiciary in July 2019 with no further action.[11] While it was not passed into law, the thought still stands: legislators do want, and very much have the power, to promote change in the law governing immigrant detention.

However, no real change has been enacted recently on behalf of these immigrants. With the COVID-19 pandemic, the end of Donald Trump’s presidency, and the start of Joe Biden’s, there has been a lot of uncertainty in the United States, including for immigrants and refugees. While they are no longer facing threats of a border wall or mass deportation and xenophobia from the president, detention center conditions have not improved. While Biden set a promise of ending “prolonged” detention and even terminated contracts with two ICE detention centers in 2021, the number of immigrants sent to and remaining in detention centers has not dropped in accordance with this promise.[12]

With the government making no leeway on changes to detention, it is left in the hands of the people to push for it. Coming out of the midterm elections with a probable even split in the Senate and a Republican majority in the House means that pro-immigrant legislation will have a hard time finding passage, but there is no reason that an effort cannot be made to try. If the judiciary will not use judicial review to find some form of reprieve for detainees, then there needs to be legislation created in order to protect their right to a safe and clean shelter. Detained immigrants are deserving of basic human rights, and it is now up to the people to hold the government accountable if it is unable to provide these rights on their own volition. 

Note: Some content and findings are taken from my winter term paper for SOCIOL_101-6: Birthright Citizenship, “Detention, Decisions, and Making a Difference: Judges and Legislators’ Understanding of Detainment Law and Substantive Justice.”

NOTES:

1. “Eshoo Travels to Texas Detention Centers: ‘The Conditions Are Inhumane.’” Congresswoman Anna Eshoo, July 17, 2019. https://eshoo.house.gov/media/press-releases/eshoo-travels-texas-detention-centers-conditions-are-inhumane. 

2. U.S. Congress, House, Subcommittee on Oversight, Management, and Accountability. House Homeland Security Subcommittee on Oversight, Management and Accountability Holds Hearing on ICE Detention Facilities Oversight, 116th Cong., 1st sess., 2019.

3. “Detention Management.” U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, https://www.ice.gov/detain/detention-management.

4. Fraihat v. United States Immigration & Customs Enf’t, 16 F.4th 613, 2021

5. Fraihat v. U.S. Immigration & Customs Enf’t

6. Lehal v. Cent. Falls Det. Facility Corp., 2019 U.S. Dist. LEXIS 49477, 2019

7. Roe v. Johnson Cty., 2019 U.S. Dist. LEXIS 143705, 2019

8. “Judicial Restraint.” Ballotpedia. Accessed November 10, 2022. https://ballotpedia.org/Judicial_restraint. 

9. “Lofgren, Correa, CA Dems Urge DHS to Close Three ICE Detention Centers.” Congresswoman Zoe Lofgren, U.S. House of Representatives, 25 Oct. 2021, https://congressional-proquest-com.turing.library.northwestern.edu/congressional/docview/t63.d40.prcoshma21163g5?accountid=12861

10. U.S. Congress, House, Humanitarian Standards for Individuals in Customs and Border Protection Custody Act, H.R. 3239, 116th Cong., 1st sess., introduced in House June 12, 2019.

11. Congress.gov. "H.R.3239 - 116th Congress (2019-2020): Humanitarian Standards for Individuals in Customs and Border Protection Custody Act." July 25, 2019. https://www.congress.gov/bill/116th-congress/house-bill/3239. 

12. Philip Marcelo, “Immigrant Detentions Soar despite Biden's Campaign Promises.” AP NEWS. Associated Press, August 5, 2021. https://apnews.com/article/joe-biden-health-immigration-coronavirus-pandemic-4d7427ff67d586a77487b7efec58e74d. 
    

BIBLIOGRAPHY:

Congress.gov. "H.R.3239 - 116th Congress (2019-2020): Humanitarian Standards for Individuals in Customs and Border Protection Custody Act." July 25, 2019. https://www.congress.gov/bill/116th-congress/house-bill/3239.

“Detention Management.” U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, https://www.ice.gov/detain/detention-management.

“Eshoo Travels to Texas Detention Centers: ‘The Conditions Are Inhumane.’” Congresswoman Anna Eshoo, July 17, 2019. https://eshoo.house.gov/media/press-releases/eshoo-travels-texas-detention-centers-conditions-are-inhumane.

Fraihat v. United States Immigration & Customs Enf’t, 16 F.4th 613 (2021)

“Judicial Restraint.” Ballotpedia. Accessed November 10, 2022. https://ballotpedia.org/Judicial_restraint.

Lehal v. Cent. Falls Det. Facility Corp., 2019 U.S. Dist. LEXIS 49477, 2019

Lofgren, Correa, “CA Dems Urge DHS to Close Three ICE Detention Centers.” Congresswoman Zoe Lofgren, U.S. House of Representatives, 25 Oct. 2021, https://congressional-proquest-com.turing.library.northwestern.edu/congressional/docview/t63.d40.prcoshma21163g5?accountid=12861

Marcelo, Philip. “Immigrant Detentions Soar despite Biden's Campaign Promises.” AP NEWS. Associated Press, August 5, 2021. https://apnews.com/article/joe-biden-health-immigration-coronavirus-pandemic-4d7427ff67d586a77487b7efec58e74d. 

Roe v. Johnson Cty., 2019 U.S. Dist. LEXIS 143705, 2019

U.S. Congress, House, Humanitarian Standards for Individuals in Customs and Border Protection Custody Act, H.R. 3239, 116th Cong., 1st sess., introduced in House June 12, 2019.

U.S. Congress, House, Subcommittee on Oversight, Management, and Accountability. House Homeland Security Subcommittee on Oversight, Management and Accountability Holds Hearing on ICE Detention Facilities Oversight, 116th Cong., 1st sess., 2019.

Originalism and Its Disregard for the Intentions of the Framers

By: Isabel Niemer

Edited By: connor tooman and clark mahoney

When ruling on constitutionality, proponents of originalism center their adjudication around what the Framers intended for their words.[1] However, they themselves likely did not want their intentions to hold weight. The originalist method of constitutional interpretation disregards the Framers’ indications prior to, during, and after the construction of the Constitution that they never intended their opinions to be binding. 

Through the assimilation of disparate ideas from disparate times into the Constitution, the Framers showcase their ability to dismember a good idea from the society in which the idea was created. Consequently, it is logical that they would expect us to do the same in our interpretation of the Constitution.  The Framer’s extensive study of history indicates that they did not expect their intentions to bind future interpretations of the Constitution. The Founders derived the central ideas about the American government from historical governments and philosophies, illustrating their avid studying of history. The Framers gained the ideas of separation of powers and natural rights from John Locke, who lived in England in the 17th century.[2] The Enlightenment ideals of liberty, equality, and justice can be seen throughout the Constitution.[3] The wars between Protestants and Catholics during the Protestant Reformation (1517-1648) led to the separation of church and state in America.[4] The idea for the executive, legislative, and judicial branches were obtained from Ancient Rome.[5] Democracy was an ideal that was pioneered by the Greeks around the fifth century B.C.E.[6] Any person who studies history to the extent the Framers likely did would see that societies evolve over time. Through this studying, they likely observed how the standards of what is accepted as “the norm” evolved throughout the years, prompting them to create a Constitution that could be molded to the ways of life thousands of years from its birth.

Additionally, a study of the actual drafting of the Constitution refutes the usage of originalism in interpreting the Constitution.[7] The Founders made it clear during the Constitutional Convention in Philadelphia that they didn’t want their intentions to hold weight when interpreting the Constitution.[8] During the convention, the windows of the building were shuttered and they were sworn to secrecy, leading one to have no reason to believe that they wanted their intentions to be known.[9] In the Constitution itself, some passages are explicit in their wording, while some are left more vague. If the Framers wanted some portions of the Constitution to be adjudicated in a specific manner, there would be nothing stopping them from spelling this out in the document itself. When the Framers gathered support for the ratification of the Constitution, one of the biggest concerns of the Anti-Federalists was that the Constitution was too vague and open to interpretation.[10] This criticism in itself demonstrates that the idea of a living constitution would not blindside the Founders. Some Anti-Federalists took it one step further, believing that they had nefarious intentions to overthrow state constitutions.[11] The Framers responded to this criticism by assuring Anti-Federalists that their intentions would have no bearing on the legally significant intent of the Constitution.[12] 

Lastly, the events after the ratification of the Constitution, such as the Supreme Court case of Marbury v. Madison (1803), support the theory that the intentions of the Framers were not expected to be followed. In this landmark case, the Supreme Court ruled that it had the power of judicial review—the power of the courts to determine the constitutionality of laws.[13] This power was not explicitly given to the Supreme Court in the Constitution, so it is unclear if all of the Framers agreed that the court should have this power. In this way, originalist judges derive the majority of their power, influence, and legacy from not following what the Founders intended. From the early days of our country, the ambiguity of the Constitution was used against the Framers, in this case directly against James Madison. However, Madison himself in years prior endorses the idea of a living constitution, saying that the document itself “was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people.”[14]

While originalism claims to follow what the Founders would have wanted, indications by the Framers before, during, and after the drafting the Constitution refute this claim. You can still agree with the Founding Fathers and disagree with originalism. Moreover, you should disagree with originalism if you agree with them. People who want nothing to change in society must remember that the Founders were a group of change makers, determined to push society to its ever-changing peak. Under the confines of originalism, the role of the courts does not reflect this essential ideology of the Framers.

NOTES:

1. Paul Brest, “The Misconceived Quest for the Original Understanding,” Boston University Law Review 60, no. 2 (March 1980): 204-238.

2. “Foundations of American Government,” UShistory.org, accessed November 6, 2022,  www.ushistory.org/gov/2.asp.

3. Ibid.

4. Freddie Wilkinson, “The Protestant Reformation,” National Geographic, last modified June 2, 2022, accessed November 6, 2022, https://education.nationalgeographic.org/resource/protestant-reformation.

5. “Early Rome: The Republic and Government Structure,” Encyclopedia.com, last modified October 27, 2022, accessed November 6, 2022, https://www.encyclopedia.com/history/news-wires-white-papers-and-books/early-rome-republic-and-government-structure.

6. National Geographic Society, “Democracy (Ancient Greece),” National Geographic, last modified May 20, 2022, accessed November 6, 2022, https://education.nationalgeographic.org/resource/democracy-ancient-greece.

7. Erwin Chemerinsky, “Even the Founders Didn’t Believe in Originalism,” The Atlantic, September 6, 2022, https://www.theatlantic.com/ideas/archive/2022/09/supreme-court-originalism-constitution-framers-judicial-review/671334/.

8. Powell, H. Jefferson. “The Original Understanding of Original Intent.” Harvard Law Review 98, no. 5 (March, 1985): 885-948. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1390&context=faculty_scholarship#:~:text=When%20interpreting%20the%20Constitution%2C%20judges,drafters%20and%20early%20inter%2D%20preters.

9. “The Constitution: How Did it Happen?” National Archives and Records Administration, accessed November 6, 2022, https://www.archives.gov/founding-docs/constitution/how-did-it-happen.

10. Powell, “Original Intent,” 885-948.

11. Ibid.

12. Ibid.

13.  “About the Supreme Court,” United States Courts, accessed November 6, 2022, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about.

14. James Madison, “The Jay Treaty,” House of Representatives, Article 2, Section 2, Clauses 2 and 3 (April, 1796): 263-279, accessed November 6, 2022, https://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s22.html.
    

BIBLIOGRAPHY:

Brest, Paul. “The Misconceived Quest for the Original Understanding.” Boston University Law Review 60, no. 2 (1980): 204-238.  

Chemerinsky, Erwin. 2022. “Even the Founders Didn’t Believe in Originalism.” The Atlantic. September 6. https://www.theatlantic.com/ideas/archive/2022/09/supreme-court-originalism-constitution-framers-judicial-review/671334/.

Encyclopedia.com. “Early Rome: The Republic and Government Structure.” Encyclopedia.com,

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