One of our most common human traits is the belief that “Things Were Better In the Old Days”, referring to the “days” of our youth. As disquieting as the idea may be, for individual human beings, Reality is in the eyes of the beholder. Our brains create our view of our environment based on our personal experiences, many of which harken back to our earliest childhood perceptions. These experiences may be moderated by education, reading, watching and by hearing individuals to whom we attach credence and importance. However, these moderating influences are always mentally ingested in the context of our own individual pre-judgments. Thus to many, the Sports Stars, Movie Stars, Celebrities and even politicians of our youth are seen as being superior to those in our present day. By the same token, the ideas and the ideologies of our youth, or teens, are seen as superior to what is around today. The easy example of this is the powerful, lasting impact of Ayn Rand upon so many of today’s politicians. This despite the fact that Rand was a banal writer of bodice bursting romantic fiction, who was stupidly pretentious enough to believe she was a philosopher in the mold of Aristotle.
The Constitution of the United States was the greatest political document of the 18th Century. The creators of that document, whom we Americans deem our Founding Fathers, were men of genius and shining examples of their era, The Age of Enlightenment. The Founding Fathers time saw great intellectual and political upheaval, as the primacy of Kings and the primacy of Religion was being replaced by new models, the scientific revolution and general intellectual fervor.
Yet most of our Founding Fathers were among the Thirteen Colonies wealthiest people, living in a primarily agrarian society. As intellectually gifted and farsighted as most of them were, their perceptions were those of their time and place. In their conception and in the actuality of the document they created, the United States would remain an agrarian society, run by landowners and limiting suffrage to “men“ who owned land. They created a Republic in the Roman and Athenian mold and definitely not a representative democracy. Other than being bogged down in foreign entanglements, the greatest threat our Founding Fathers perceived to this country of their creation, was that it would, as Rome had done, allow the Republic to be usurped by an Emperor. The Constitution as a document was expressly designed to thwart the ambitions of those who would name themselves King.
Now as much as we humans revere and cherish the Good Old Days, for humanity change is inexorable. As the United States and humanity, were overtaken by the world wide innovations of the scientific, industrial and technological evolution’s, the pace of change ever quickened. With that quickening came a sense of danger, dread and fear by the many who could not intellectually and emotionally keep pace. Those upset by the pace of change at all levels of human society began to cling to their common human notions and emotions, that “Things Were Better In the Old Days” and we humans should cleave to the “Old Ways”. Which brings me to Constitutional judicial philosophy and the Supreme Court of the United States (SCOTUS).
Antonin Scalia is the intellectual and judicial role model for our newest SCOTUS Justice Neil Gorsuch. The judicial philosophy of Scalia and Gorsuch is called Originalism “a way to interpret the Constitution‘s meaning as stable from the time of enactment, and which can only be changed by the steps set out in Article Five of the Constitution.“ Before I delve into what is to me the irrationality, cupidity and stupidity of Originalism, let’s take a brief look at these two Judges who are champions of originalist judicial philosophy.
Scalia was a devoutly conservative Roman Catholic. He was aghast at Popes Like John Paul and Francis, who worked to modernize the doctrines of the Church and make it into a less judgmental and demanding religion. Scalia unashamedly allowed his religious belief to color his judicial rulings. A good example of that is Scalia “defended his pro-death penalty stance by claiming that the Bible forgives those who wrongly apply the death penalty to innocent persons on the grounds that the wrongly convicted will have an opportunity to set the record straight in the courthouse of the afterlife.” here. By using the pretext of Originalism being the way that Judges should interpret all law, Scalia was able to justify the insertion of his ultra-conservative belief system into his Judicial rulings. Make no mistake about it for Scalia “Things Were Better In the Old Days” of his youth, where people of color “knew” their place; women remained in the Kitchen; homosexuals remained in “the closet”; and Corporations were allowed to be as capitalist as they chose to be.
Neil Gorsuch. like Scalia, is a devoutly Conservative Roman Catholic, who was educated in Catholic Private Schools. His mother, Anne Gorsuch Burford, a Colorado statehouse representative, who was appointed by President Ronald Reagan to be the first female Administrator of United States Environmental Protection Agency in 1981. While in the Colorado Legislature Anne “was considered to be a member of the “House Crazies,” a group of “conservative lawmakers intent on permanently changing government.” The “House Crazies” are analogous to today’s “Tea Party”. During her time at the EPA, Neil’s Mom, did everything she could to emasculate the Agency, accommodate polluting corporations and hire industry lobbyists to oversee the industries they formerly lobbied for. Neil’s Mom, who he idolized, looked back at her EPA days as her greatest accomplishment.
Thus Neil Gorsuch grew up in a radically, ultra-conservative home environment, which was deeply steeped in very conservative religious values. Although he declined to be forthcoming about many of his more radical judicial views during his confirmation hearings, his past ruling at lower courts were examined by Democratic Senators. Famously Gorsuch ruled for the corporation that ordered a freezing driver to remain by his truck in sub-zero weather and then fired him when he didn’t. Many of his other radically conservative judicial opinions can be found here. Make no mistake about it for Gorsuch “Things Were Better In the Old Days” of his youth, where people of color “knew” their place; women remained in the Kitchen; homosexuals remained in “the closet”; and Corporations were allowed to be as capitalist as they chose to be.
Which brings us back to Originalism, that judicial philosophy that believes that the Constitution should be interpreted only within the mindset of the Founding Fathers and applied only how they intended it. On its face Originalism is a silly and dangerous idea because in the 237 years since our Constitution was implemented, the changes in humanity and society have been so broad, as to confound and possibly give a stroke to those who wrote the Constitution, were they brought forward to today. As much genius as we may ascribe to the Founding Fathers of these United States, the great document they created, as a necessity must be interpreted and re-interpreted in the light of today’s reality. I am certain that a constant re-interpretation was the intent of our nation’s founders.
Let’s be clear though as to what is afoot behind this adherence to Originalist belief. It originated in the 1980’s, as the Reagan Revolution swept the country, led by a group of Corporatist, Conservative radicals intent upon destroying most of the accomplishment’s of FDR’s New Deal. They had chafed under a SCOTUS, led by liberal Republican Chief Justice Earl Warren and its’ rulings on Civil Rights, Abortion and against corporate power. These radical conservative revolutionaries needed a Judicial philosophy that would repudiate the Warren Court and favor the issues these radical conservative revolutionaries held dear. So they invented this specious philosophy of Originalist belief, couched in false pseudo-intellectual argumentation and seriously foreign to all the history that preceded it. Behind all the cant and the vapid argumentation, using obscure language to add cachet and lack of clarity, what we have left is that Originalist Philosophy is merely a way of saying “Things Were Better In the Old Days”, by people unable and unwilling to accept that life is constant change.