The Supreme Court worships originalism now, and the court is making bad decisions. Originalism isn’t bad. It simply states that the Constitution should be interpreted literally and as the Founders intended. While the concept sounds reasonable, originalism should not be the only determining factor in legal decisions. The law is too complex.

Take murder, for example. Murder is illegal unless there are extenuating circumstances. You cannot kill your neighbor unless your neighbor tries to kill you. Self-defense turns a murder into a justifiable homicide.

Extenuating circumstances are important in recent cases involving pregnancy and the abortion ban in many states. One circumstance is an ectopic pregnancy. If the baby is not aborted, then the pregnant woman will almost certainly bleed to death. In another circumstance, a pregnant woman’s waters broke 16 weeks into her pregnancy. She was forced to go through a long childbirth to deliver a nonviable fetus. In both instances, the anti-abortion laws do not recognize extenuating circumstances. These women cannot defend themselves against failed pregnancies.

The Supreme Court decision fails, not because abortion is right or wrong. The decision fails because it depends on the false presumptions that human rights must be absolute and derived from the Constitution. Rights are always subject to limitations and depend on situational rules. And rights don’t need constitutional affirmation to be allowed. The Ninth Amendment acknowledges that other, undefined rights are also protected.

Originalism, by itself, hinders our struggle to form a more perfect union.

Peter Konieczko

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