Originalists vs. Structuralists
There are basically two active sides in the debate over what the Constitution says about things like abortion rights, sexual behavior rights, marriage rights (including same-sex and interracial marriage), voting rights, and so forth. On one side are the Originalists who contend that we should go with the intent of the authors of the Constitution, as reflected in the way they objectively lived their lives. On the other side are Structuralists who contend that the Constitution has thematic patterns which imply (or even plainly state) things that may not have been intended by the authors, and that the author’s intent is not relevant.
There are other “sides” to this debate but they don’t really matter. Consider, for example the Wrong position, which is that the authors of the Constitution intended things that were directly contrary to both the way they lived their lives and things they said in other contexts, and were gifted with not only Christ-like goodness but also psychic powers that allowed them to see that some day, Black people would be free to marry whites, vote, and become President. As if Jefferson knowingly winks at us through history, and then scurries off to the secret room where he keeps his 14-year-old sex slave (see Note on Jefferson, below). But, to return to the main topic, there are other valid ways to interpret the Constitution; for the sake of brevity, I’m just talking about the currently popular methods.
Both Originalists and Structuralists are technically correct; it’s just that the Originalists are fascists.
A Structuralists looks at the thing the authors created and judges it based on its own merits. They see the structure of the thing, and disregard the author completely. You could call this “death of the author” — which is something I strongly believe in. If a bad person says something good, we should not reject the good thing they said because of the source, but rather embrace it and reject the hypocrisy of the speaker. A Structuralist interpretation…
…draws inferences from the design of the Constitution: the relationships among the three branches of the federal government (commonly called separation of powers); the relationship between the federal and state governments (known as federalism); and the relationship between the government and the people.
In contrast, Originalists consider the Constitution in the context of the authors, so the authors’ actions in life as well as other documents reflecting their views are part of the Constitution. This means that Originalists believe that only white, cis, straight, Christian men who own property should have the right to vote. When they say that the minority should be protected, they mean the “opulent minority” (rich people) and that they should be protected from “mob rule” (democracy). Originalists believe that the purpose of the Constitution was not to give rights to everyone, but rather to promote a specific type of people. John Adams said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
…originalist approaches consider the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding. Originalists generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and Justices (and other responsible interpreters) is to construct this original meaning.
Today’s “conservatives” (fascists) take the Constitution as something that applies only to them, and not to any of their enemies. It gives them, specifically, rights. It does not give their enemies rights.
This is consistent with an Originalists interpretation, and the Originalists have a point. Jefferson didn’t intend for his sex slave to be free and have the right to vote — otherwise he would have treated her differently (see Note on Jefferson, below). Madison didn’t want taxes on the rich to allow working class people to be able to afford healthcare. Yet, to make this your standard for determining how the document should be interpreted today is nothing less than evil.
The Structuralists’ point is better because it disposes of the villainous lifestyles, secret intentions, and supposed beliefs of the authors. Just because something was created by deeply flawed people doesn’t mean that it necessarily reflects their flaws. People can created things that are better than themselves. It’s an insult to both the creation and the creator to shackle it to the creator’s flaws. If the Constitution is something worth having, it is because it is better than the people who created it.
States’ Rights
A consistent argument made by fascists is that the parts of the Constitution that they do not like should be ignored, and that state governments should rule over these particular issues. The greatest example of this was slavery, where fascists claimed that each state should be allowed to determine whether people should be able to own other people. In essence, the argument is that a state government should be able to deny individual rights when those rights are not consistent with conservative culture.
The Constitution says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Unfortunately, that’s a little bit vague. It seems like it allows the states to deny people rights as long as those rights are not explicitly granted to people in the Constitution. That’s why “states’ rights” is such a popular strategy among fascists. Structuralists reject that framing, however, and instead see the Constitution as prohibiting States from infringing on individual rights. This is confusing to fascists because they want to have the right to dominate other people — they believe this is the most important right.
Flaws of Roe v. Wade
Roe v. Wade is a flawed decision for two reasons. First off, it fails to address the equality of women. Of note is the fact that the United States has failed to ever add equality between men and women to the Constitution. Second, it fails to address the religious aspect of the abortion debate; specifically, the fact that the far right claims that their hostility toward abortion is based on the idea that a sperm and egg are imbued with a soul the moment that they join together. That idea is a religious idea that is not shared by most Americans, or even all Christians. Quickening is the alternative option among Christians, but among those who do not believe in such a thing as a soul, the limit is when the potential person achieves awareness (and, really, isn’t that when the soul is imbued?). In short, an abortion ban is a violation of the First Amendment rights of any person who wants to abort a fetus; this is a clear fact, but it’s probably too late to do something about it now that the Supreme Court is controlled by fascists.
Instead of depending on the First Amendment or the non-existent Constitutional equality of women, Roe v. Wade infers a right to privacy (based on the Fourteenth Amendment) and somehow uses that to grant the right to abort an unwanted pregnancy.
Note on Jefferson
Thomas Jefferson owned slaves, but was fairly consistent in stating that he was opposed to slavery, with his anti-slavery statements becoming more vehement over time. However, he also said that ending slavery had to be done as part of the democratic process. This puts him in the same do-nothing category as the Republicans of pre-John-Brown America and today’s do-nothing Democrats. Based on how I’ve come to understand today’s Democrats, my guess is that Jefferson understood that there was something morally wrong with slavery, but cared much more about his own comfort than about fixing that problem or doing the right thing, and was really making these statements as a performance meant to pacify an audience — probably including Sally Hemings, who he never chose to free.