Markey: “Originalism Is Racist . . . Sexist . . . Homophobic”

We have previously discussed how senators crossed a critical line in the Barrett nomination in declaring that the conservative’s judicial philosophy makes her “unqualified” — the abandonment of decades of tradition where members separated the qualifications from the philosophy of a nominee. That dangerous shift was particularly evident yesterday when Sen. Ed Markey, D-Mass., called originalism “racist, sexist, homophobic and a fancy word for discrimination.”

Markey declared on Twitter on Twitter that “Originalism is racist. Originalism is sexist. Originalism is homophobic. Originalism is just a fancy word for discrimination.”

The attack is obviously and patently false. I am not an originalist but it is not inherently racist, sexist, or homophobic. It is a school of interpretation that is not bound to any outcome in a case. Indeed, Markey’s attack reflects the relativistic and biased approach taken by many on questions of constitutional interpretation, suggesting that the only correct approach is one that guarantees particular results.

Originalism minimizes the role of the court in changing constitutional values and rights. It leaves such fundamental changes to the amendment process. It a long-standing view of constitutional interpretation that rejects more liberal approaches as usurping the right of the citizens to make such decisions while inflating the power of unelected jurists. One can disagree with it, but originalism is based on democratic theories, not personal prejudices, in defining the role of the courts.

Markey’s comments are deeply insulting to the many citizens, judges, and professors who hold originalist views. It is further evidence of the creeping irrationality in this age of rage where it is not enough to disagree with others on legal questions. You must now label those with differing views as racists or bigots. Sen. Mike Lee was right to call upon Markey to withdraw his comments but such civility and such responsibility is now a distant memory in American politics.

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