Date of this Version
Mays, E. S. March 2022. Turning Back Time: Implications of Originalist Legal Theory for Women's Rights. Undergraduate Honors Theses University of Nebraska-Lincoln.
Since America’s foundation, women’s rights have expanded to lengths that would have been unimaginable to the Founding Fathers including the right to vote, the ability to work outside the home, and some aspects of bodily autonomy. These legal adaptations, along with a larger cultural shift towards liberation, have left many modern-day women with a false sense of security in the face of growing judicial sentiments that threaten the rights of women. The legal theory of originalism that has been growing in force significantly since the 1980s argues that in interpreting constitutional matters, judges should uncover and promote the meaning of the document at the time it was ratified.
This paper seeks to determine what implications the growth of originalism has for the future of women’s rights. To undergo this analysis, the paper begins with a thorough explanation of originalism and its variations as well as an explanation of originalist methodology. The project continues to explain how the evolution of originalism has produced a more self-confident and activist version of the original theory. The evaluation then turns to applying an originalist lens to issues of women’s rights theoretically and evaluating the judicial records or originalist judges in practice. Finally, the paper concludes with an analysis of the likely originalist impact on a current Supreme Court case. This analysis makes clear that no matter what way the theory is presented, through the eyes of an originalist, there is little room for the protection of women’s rights in the Constitution.