Originalism

With a battle, or at least a battle of words, going on in the Senate Judiciary Committee hearing room about Judge Amy Coney Barrett, I thought I'd look at the concept of originalism as it pertains to the interpretation of the Constitution. Originalists, sometimes called textualists, rely solely, or at least primarily, on the actual words in the Constitution. This sounds like it's common sense. Of course you'd rely on the words of the Constitution to determine what the Constitution says. But even a cursory examination of the words of the Constitution reveals that the words are often fuzzy. For example, what does "cruel and unusual" mean? We can, as originalists do when the words themselves are unclear, look to the milieu in which they were written to determine context. When the Constitution and it's first ten amendments were penned, punishments included whipping, branding, being confined in stocks, cutting off ears, and of course public hanging. These punishments could be inflicted for crimes ranging from petty theft or even giving birth out-of-wedlock. These were all perfectly normal in Colonial times, but our mores have changed drastically since then. Courts have progressively moved the bar regarding what "cruel and unusual" consisted of. It is unreasonable to expect that the founders would have anticipated all circumstances to which the Constitution would be applied. 

Another example is the 1954 Brown vs. Board of Education decision, in which it was ruled that the separate but (theoretically) equal standard that was set forth in the 1896 Plessy vs. Ferguson did not in fact satisfy the equal protection clause of the Fourteenth Amendment. Not only do attitudes changes, but the facts upon which cases are based change as well. The legality upon which the "separate" part of "separate but equal" was based derived from the prevailing view that Black people were not only inferior to white people, but that it was natural that they be kept separate. 

I don't support "legislating from the bench", where judges make the law. But courts must not only rule on guilt and innocence but must adjudicate between different interpretation of the laws as written and take into account evolving attitudes, culture and circumstances. Times change, as so does the lens through which we view the Constitution.