Originalism is Stupid


Sunday 28 July 2019

   There are two general schools of thought on how to use the U. S. Constitution to judge government actions. One way, the so-called “liberal” way (as used by “conservatives”) – is to view the Constitution as a “living” document, meant to change with the times as the United States has matured and changed. The other is Originalism. Robert Bork, at the time a law student (not even a seasoned lawyer!) usually gets credit for “inventing” this way of looking at the Constitution, which in essence is “what you see is what you get.” In biblical language, according to Bork, not one jot or tittle can be changed. Former Chief Justice Scalia adopted Originalism to the hilt, explaining it this way (in a 2008 speech given at the University of Fribourg): “When a case comes to me, I don’t do whatever I feel like doing. I have a standard. That standard is what would the people at the time of the Constitution was enacted have said.”

   There are two major problems with that, that should be obvious to anyone knowing anything about the United States at the time the Constitution was written. First, there is no clear record of what people thought, since minutes of most meetings weren’t kept, and most of what we know about thoughts and deliberations comes from individual letters passed between the various “founders.” What has been determined is that there was no consensus about anything. Some colonies didn’t want any constitution – didn’t want any federal government. Some wanted a very weak federal presence, maybe just enough to deal with foreign affairs, letting the individual “states” handle everything domestic as they saw fit, locally. Others wanted a strong national framework, fearing the individual states couldn’t hold the new, very fragile democracy together. What they got was a constitution pretty much written by one man, reportedly in just a couple of days. Another man added a bill of rights, culling over 100 suggestions from the states down to a dozen, which the congressional conventioneers pared down to ten. What they came up with was a framework with almost no details of how “the government” would function. Even then, ratification came slowly, two of the thirteen states not signing on for some time after the Constitution was declared as “passed.” Within a few years of passage, our third President – who had always been a reluctant supporter of any federal government – was seeking to have the Constitution amended to justify some of the things he wanted to do during his presidency. So, you Originalists, what is it that you think “the people at the time of the Constitution” said??

   The second problem should be even more obvious than the first: how could a few men, in the aftermath of a world-changing war, in what would eventually be just the East Coast fringe of the United States, create a document that would serve all the needs of a great nation for the rest of its existence? They couldn’t. Thomas Jefferson – no champion of strong “united” states, and often cited as a hero of the originalists/conservatives – said it clearly in an 1816 letter to Samuel Kercheval:

   “Some men look at constitutions with sanctimonious reverence, and deem them, like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I know that age well; I belonged to it, and labored with it. It deserved well of its country… But I know also that laws and institutions must go hand in hand with the progress of the human mind… We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain under the regimen of their barbarous ancestors.”

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