Serving Only to Oppress: An Intersectional and Critical Race Analysis of Constitutional Originalism Inflicting Harm

Authors

Ethan Dawson, Indiana University Maurer School of LawFollow

Abstract

“[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” - Justice Anthony Kennedy, Lawrence v. Texas (2003)

This Note will first focus on a historical analysis of originalist constitutional interpretation, drawing attention to initial disparities in the Constitution incompatible with our current social context. It will discuss modern originalism as a method of perpetuating systemic shortcomings, drawing specific attention to originalist interpretation as a method of oppression against white women and people of color, specifically Black women. In analyzing the harm originalism does to those communities, this Note will utilize a Critical Race Theory analysis and intersectional framework concerning the oppression of Black women in Texas through three distinct disparities rooted in originalism: (1) voter disenfranchisement through discriminatory voting restrictions, (2) vote disempowerment through gerrymandering, and (3) restrictions on bodily autonomy through strict abortion laws.

Recommended Citation

11 Ind. J. L. & Soc. Equal. 294