I suppose I would consider myself quite an "Originalist" when it comes to the Constitution...with the qualifier that I believe the Originalist viewpoint forces (or I should say should-force) our legislature to write & pass well-written, well-constructed legislation. (And no...I don't believe in the Easter Bunny.) I agree that the founding fathers really could not have imagined some of the things of today...but their utter brilliance was in how they established a system to deal with the future unknowns that they knew would come up...while having no idea what those unknowns would entail.
My favorite Originalist view is essentially this: When in doubt, let the states decide. You taught me in this thread that if the states create their own laws and those laws cause conflict among other states, there is a defined way forward to make related legislation federal. But the process has to play out according to the Constitution.
There are a few ways to be an Originalist. I would call myself the pragmatic Originalist. Constitution (including amendments) first, legal precedent, and then, consequential impacts of the ruling. I went a bit down the rabbit hole last night to refresh my memory, and to better understand the originalist viewpoint, which I believe can be flawed, depending on how strictly it is applied. I also read the Alito opinion which makes me want to wait until the final version comes out with the rebuttals. I was a bit surprised that the text was written in the tone that it was, and also surprised that the argument that abortion is not in the constitution was a key point.
I have to suspect that any rebuttal would involve the 9th amendment, which is in the Bill of Rights.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
A "strict" originalist has no real answer for the 9th amendment, but my view it that it is the fundamental role of the Supreme Court to figure out if something is a right or not. It was only mentioned once in passing by Alito. The 9th amendment has come into play before, in circumstances like contraception and equality of education.
I will also say that the draft opinion spent a lot of time on the historical subject of quickening (feeling a baby move) as a precedent for other laws. I found this curious as it could be used in a modern sense to justify the concept of viability, which Alito contended was created from whole cloth, and as such was inherently flawed.
As a whole, I have to agree, the constitution and the amendments are brilliance that can stand the test of time, if we interpret them as originally intended.
Another side note, the founding fathers also include all those after 1789 who crafted amendments, including the 14th in 1868.
