On Originalism


This week our live streaming news has covered little else but the Senate confirmation hearings on the Emperor’s nomination of Brett Kavanaugh to fill the Supreme Court vacancy created by Justice Anthony Kennedy’s retirement.

Of course the hearings are a charade which change not one Senator’s vote – his confirmation is a foregone conclusion.  He will evade controversial issues, speak of following the law etc. while Senators of both parties will use the opportunity in front of the cameras to rally their respective supporters.  In the end the fate of abortion rights rest on the shoulders of two women, both Republican Senators.  If Roe is overturned you can blame them.

While I find the confirmation process a bit of a farce, I am always interested in the back and forth around the subject of “Originalism.”  Its sort of like listening to “learned” theologians arguing about the divine and human natures of Christ.

Now Toritto is not a lawyer and doesn’t pretend to be one notwithstanding that I have 5 attorneys in my extended family.  I do, however, hold the opinion that “originalism” is a fallacy of logic even though it came to prominence with conservatives during the time of a paisano, Justice Scalia.

The idea that the Constitution should be interpreted as the people who wrote it would have intended just doesn’t sit right with me.  And not only because different authors had different intents in ratifying the exact same language at the time of passage..

“Interpreting the Constitution based on original intent is building a house on a foundation of sand.  All the reasoning on top of the interpretation may be consistent and closely argued (and most of our Justices are excellent in constructing such reasoned arguments) but if the interpretation stands solely on the assertion that the original authors meant this, it is assuming that the wisdom of the original authors is greater and of more authority than the wisdom of the people today.”

And if that were true, if the wisdom of the old was always better than the wisdom of the new, then it would be impossible to justify any changes to the Constitution whatsoever.  It has been, however, amended 27 times; evidence that the wisdom of the earlier authors was insufficient and required revisions based on new knowledge and understanding.

But hey, what do I know.  I am not a lawyer but I believe the Constitution does not belong to lawyers and Justices but to all of us.  And IMHO, originalism, despite the “giant intellect” of Justice Scalia and other renown Justices is simply craftily constructed intellectual bullshit to foster a conservative, “traditionalist”  agenda.

Sound harsh?  Who’s on my side?

Justice Thurgood Marshall, legendary civil rights attorney and the first black justice on the high court.

In Marshall’s opinion, the Founding Fathers weren’t all that astute, and neither was the Constitution they penned in 1787. Marshall delivered that opinion, controversial in its time, during the nation’s bicentennial celebration of the historic document at a conference of attorneys on Maui, in Hawaii, in May 1987. His less than laudatory words stood in high contrast to the praise for the Constitution offered earlier that year by President Reagan and retired Chief Justice Warren E. Burger.

Reagan had used his State of the Union speech to laud the Constitution as “the impassioned and inspired vehicle by which we travel through history,” and Burger, chair of the constitutional bicentennial commission, had described the document as “the best thing of its kind that was ever put together.”    Marshall’s words were also at odds with those expressed by conservative jurists such as Atty. Gen. Edwin Meese III, for whom “original intent” was sacrosanct.

“I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention,” Marshall told the lawyers in Hawaii. “Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.”

Marshall was critical of the men who wrote the Constitution because he saw their original intent as favoring a government that advanced slavery and prevented blacks and women from exercising the right to vote. The Constitution was thus “defective from the start,” he said, “requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.”

“While the Union survived the Civil War, the Constitution did not,” he said. “In its place arose a new, more promising basis for justice, the 14th Amendment, ensuring protection of the life, liberty and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.”

The 14th Amendment gave rise to a form of justice that the Founding Fathers had never envisioned, never intended. The framers “could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendant of an African slave.”

Marshall left no doubt about his belief that originalists were wrongheaded in their insistence on a purely textual interpretation of the Constitution and strict adherence to the motives at play in the late 18th century.    Marshall was targeting anyone who would make gods of the Founding Fathers. That group has proliferated in the years since he delivered his bicentennial address, and they are celebrating Kavanaugh’s nomination.

Apart from the idea that the founders had a common original intent which can be ascertained and should be unchanging there is the idea that words in themselves have an obvious meaning in law and that conservative judges follow the law and liberals make the law by twisting the words.  Laws and legislation are written vaguely enough tosatisfy different views otherwise they couldn’t get to be law.

What does the First Amendment say?

The First Amendment guarantees freedom of speech, but the devil is in the details. Does it mean that I am free to yell “Fire!” in a crowded theater (Justice Wendell Holmes’s famous example)? To give political speeches with a bullhorn on a residential street at 2:00 in the morning? To slander someone by telling deliberate lies about them?   Is buring the flag “free speech?” How about kneeling at a football game during the anthem?  Are there consequences to be had for “free speech?”

This week Alex Jones and Info=wars were permanently banned from Twitter – he’s the one that insists the killing of 20 school children in Sandy Hook Connecticut was a hoax and that the parents are lying.

So yes, while the words are simple enough – free speech shall not be infringed – notwithstanding,  there are indeed limitations on free speech.  Does anyone know what the founders intended with these words?  Or could have imagined 21st century America?

The idea that every reasonable application was anticipated and agreed upon when a law was passed is impossible to defend. The more realistic position is that the meaning of a law becomes clearer as judges apply it to cases, but that occurs over time. When does the meaning become entirely clear–after ten years, fifty years, a hundred years? Once we admit that the meaning of a law evolved over time, we must also admit that it continues to evolve in the present era. Legal interpretation will always be a balancing act that respects original intentions and precedents, but remains open to new interpretations and applications.

When the Fourteenth Amendment was adopted after the Civil War, it was not at all obvious that the equal protection clause required racial integration. Until the Brown v. Board of Education decision in 1954, courts saw legally mandated racial segregation as compatible with the equal protection of the laws. That was the doctrine of “separate but equal” enshrined in Plessy v. Ferguson in 1896. By the mid-twentieth century, more people understood and acknowledged how segregation deprived racial minorities of equal educational, employment and housing opportunity. The legal requirements of “equal protection” changed accordingly.

Still another example is our conception of liberty, which is explicit or implicit in many Constitutional articles. Everyone agrees that the Constitution places limits on government in order to protect the liberties of the people.

On the other hand, strict regulation of personal sexual behavior was permissible in 1800.   Over the centuries the state’s need to favor marital and reproductive sex through strict sexual regulation became less clear. Along with the sexual revolution and the emancipation of women came Supreme Court cases that struck down old legal taboos–on contraception in Griswold v. Connecticut (1965), on abortion in Roe v. Wade (1972) on homosexual behavior in Lawrence v. Texas (2003). Scalia was not amused by this trend, and he challenged his fellow justices to explain how laws that were once constitutional could now be unconstitutional. But inevitably the specific rights implied by the Constitution are redefined from time to time, even as the abstract words remain the same and Justice Scalia wailed.

He was always for “states rights” and thought it perfectly ok that Texas had a law against “sodomy” targeting only gays (it was apparently ok to “sodomize a woman” – but he was not for states rights  in Gore v. Bush.

When liberal justices strike down a law they find unconstitutional, conservatives complain that they are usurping the role of the lawmakers. Just apply the law; don’t make it, judges like Neil Gorsuch say. If taken too far, that turns the judicial branch of government into a rubber stamp for the legislative branch. Interpretation and evaluation of law in the light of the Constitution is exactly what the judiciary is supposed to do. And conservatives are hardly passive in the face of laws they dislike. They are perfectly willing to strike down laws that infringe on the liberties they recognize, even if they have to engage in their own creative interpretation of the Constitution to do so.

So despite the “brilliance” of Justice Antonim Scalia, Neil Gorsuch and Brett Kavanaugh this old man views entire faux-scholarly intellectual edifice of originalism as bullshit.

Not that anyone gives a rat’s ass.


About toritto

I was born during year four of the reign of Emperor Tiberius Claudius on the outskirts of the empire in Brooklyn. I married my high school sweetheart, the girl I took to the prom and we were together for forty years until her passing in 2004. We had four kids together and buried two together. I had a successful career in Corporate America (never got rich but made a living) and traveled the world. I am currently retired in the Tampa Bay metro area and live alone. One of my daughters is close by and one within a morning’s drive. They call their pops everyday. I try to write poetry (not very well), and about family. Occasionally I will try a historical piece relating to politics. :-)
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1 Response to On Originalism

  1. beetleypete says:

    From over here, I have always found the slavish adherence to the original constitution bizarre. It makes no allowance for the development of society, as your examples illustrate well. But it was conceived by white men who were mostly rich and influential. So it seems appropriate that this same group would want to cling to it today.
    Best wishes, Pete.

    Liked by 1 person

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