There are at least two ways to be a results-oriented judge if you’re an originalist. The most common way is an obtuse reading of the plain text. My favorite example of this is Justice Clarence Thomas arguing that constitutional prohibitions against cruel and unusual punishment don’t actually refer to conditions of confinement, but merely the official sentence issued by a judge, because then it’s technically “not punishment.”
The second is you ignore the plain text of the Constitution and instead borrow whatever regressive values the Framers held at the time to justify your interpretation. Via Amanda Terkel, Justice Antonin Scalia wins in this category, for arguing that the 14th Amendment, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” doesn’t ban discrimination against women, because women apparently, aren’t “persons.” The obvious rejoinder, as Doug Mataconis points out, is that if the Framers really didn’t want to include women, they would have avoided using that term.
Scott Lemieux, America’s leading Scalia hater, notes that Scalia says Brown v. Board of Education was correctly decided even though his argument regarding gender discrimination holds up here–the Framers of the 14th Amendment weren’t trying to outlaw segregation. But look, that’s the point of originalism–to conceal the fact that legal interpretation sometimes requires judgement calls in which personal politics become relevant.
Finally, you have the latest Republican fetish for trying to eliminate birthright citizenship in defiance of the 14th Amendment. Neither of the above approaches work here, since as Damon Root has written both the debate between the Framers and the plain text of the Amendment offer no doubts as to whether or not they intended to grant citizenship to the children of foreigners born on American soil. So how could this possibly be originalist or even constitutional? Kris Kobach says it’s because ““Most countries — almost every country on earth — do not confer birthright citizenship.” Even the conservative and originalist distaste for citing “foreign law” goes out the window when you start discussing when reducing the population of undocumented Hispanic immigrants is on the line.
The 14th Amendment was among the best things the Republican Party ever did. Why do they hate it so much?