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.”[2][3][1] 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.
ElephantTail 
April 15, 2017 at 1:12 pm
I would like to hear a proponent of originalism explain how that approach accommodates to our chaining understanding of issues such as slavery, women’s rights or sexual preference, to name only three.
A judicial philosophy that cannot accommodate such changes would seem to eliminate itself from consideration as an approach to interpreting our law.
Many claim that the intellectual capacity and legal achievement of the candidate ought to be the sole criteria for elevation to judge or Justice.
I would argue that adherence to originalism ought to be reasonable basis to vote against a candidate or remove a judge or Justice from office.
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April 15, 2017 at 2:50 pm
Ironically, Originalism is just another way of promoting human beings to demigod status, infallible and not to be questioned. Just like the Kings the Founding Fathers wanted to rid the country of in the first place!
Of course, it should be expected amongst the religious (of any stripe), they love their infallible God and demigods, like Moses, Mary, Jesus and Mohammed; those whose words and acts must not be questioned, that never lied or made an error.
It’s really funny, the very thing the Founding Fathers tried to eliminate with the Constitution, Wise Kings seen as infallible, they effectively became. Ha ha ha ha ha.
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April 16, 2017 at 11:24 am
-Many claim that the intellectual capacity and legal achievement of the candidate ought to be the sole criteria for elevation to judge or Justice.-
As we understand the fallacy in this idea is that people like Scalia and Gorsuch are highly educated individuals. both with records of spectacular advancement up the ranks of the Legal System. However, the fact that both of them are blinded by their religious faith, slavish to an illogical judicial doctrine and have a history of extreme partisanship, makes them horrible judges.
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April 17, 2017 at 10:30 am
James Madison stated; “[a]s a guide in expounding and applying the provisions of the Constitution . . . the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it received all the authority which it possesses” (Farrand, IV, 447-48)
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April 17, 2017 at 1:34 pm
Jason: Madison’s guidance won’t fly, either. For one, we have little to tell us what sense “the people” attached to it, they are dead and all that was recorded was their votes. Second, there is no reason to suspect the “sense” they attached to it was either sensible or uniform: Take all the people that voted in 2016; even if grouped by the candidate for whom voted, their reasons for doing so cover a wide area; from delusional to entirely rational, and from the important to the utterly trivial. Why should people in the late 1700’s be any different?
Speaking for myself, I don’t give a crap about those people, or the founding fathers. They are no better than us, and in most respects we are better than them. But they tried, in the abstract sense, to devise a secular government by the people and for the people, to increase freedom from dictatorship and unfair persecution and prosecution and unfair use of the power bestowed upon government by the people to subjugate the people.
In that abstract sense, with a broader target for fairness than most of them would allow, I am an originalist too: That abstract intent remains a good idea. The specifics of how the FF went about it is, unfortunately, full of bugs and unanticipated consequences that should be fixed. Primarily because they relied upon a cultural belief in honorable men and the sanctity of sworn ceremonial public oaths as a check on rampant corruption and collusion. They don’t work!
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April 17, 2017 at 2:35 pm
” the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it received all the authority which it possesses” (Farrand, IV, 447-48)”
Before I decide the reasonableness of Madison’s point of view I think I would like to know how that view informs our understanding of issues such as women’s right to vote or slavery.
It seems to me that the real test of any doctrine is not who proposed it or how reasonable it may seem upon reading, but rather, how it actually works to resolve the problems we face.
Let some proponents of the Madison view take us through it’s application to some of our problems and then let us decide whether the Madison view has any relevance today.
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April 17, 2017 at 2:48 pm
MoreMozart, Then, As Madison said; “the legitimate meaning of the Instrument must be derived from the text itself.”
“For one, we have little to tell us what sense “the people” attached to it, they are dead and all that was recorded was their votes.”
HOGWASH
I sense some confusion regarding ratification. On December 7, 1787: Delaware ratified. with a vote: 30 for, 0 against.
Starting in the fall of 1787, legislatures in the original thirteen states called for conventions for the purpose of deciding whether to ratify the Constitution. Many records of these state ratifying conventions have survived.
Here’s a compilation of the State Conventions: http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1839&context=faculty_publications
Why do you think a written constitution was so important?
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April 17, 2017 at 3:01 pm
bigfatmike, The purpose of the Constitution is not to “resolve problems”. Perhaps that is the source of much confusion and frustration.
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April 17, 2017 at 3:05 pm
Before I decide the reasonableness of Madison’s point of view…
Where are you going to look for the legitimate meaning of a written constitution if not the text, or the sense attached to that text by those who ratified it?
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April 17, 2017 at 3:17 pm
“It seems to me that the real test of any doctrine…”
The Constitution is not doctrine. It is a document. Separation of Powers is a doctrine. Stare Decisis is a doctrine.
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April 17, 2017 at 3:17 pm
” The purpose of the Constitution is not to “resolve problems”. Perhaps that is the source of much confusion and frustration.”
If the purpose is not to allow us to resolve our differences through some rational process rather than ambushing our neighbors and hacking them to death, then I will gladly eat my hat together with any secret sauce you care to devise.
I suppose all that talk about rights and powers of the government was high sounding poetry rather than very practical discussion of how to solve the very practical problem of government power and its encroachment on individual liberty.
You ought to climb down of your high rhetoric and realize the constitution is a very practical tool much like an ax or a shovel. Any constitution that does not help solve the very practical problem of living in near proximity to each other with out slaying one another is defective at best and likely completely useless.
So, once again, how, exactly, does Madison’s view inform our understanding of how to solve the difficult problems of women’s rights including the right to vote, and the problem of slavery?
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April 17, 2017 at 3:21 pm
Mike Spindell ” However, the fact that both of them are blinded by their religious faith, slavish to an illogical judicial doctrine and have a history of extreme partisanship, makes them horrible judges.”
How is originalism or textualism an illogical judicial doctrine?
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April 17, 2017 at 3:24 pm
“Where are you going to look for the legitimate meaning of a written constitution if not the text, or the sense attached to that text by those who ratified it?”
I did not at all suggest that we should not look at the text or the expressed opinions of those who wrote and ratified it.
What I asked was how does Madison’s view illuminate fundamental problems such as women’s right to vote or slavery. The short quote regarding Madison seemed to suggest, in my reading, that only the text and the understanding of those who ratified the document should count.
If only the text and the view of those who ratified it can be used to understand the meaning then how does that inform our current understanding of women’s right to vote or slavery?
I would argue that if limiting our understanding to the text and the views of those who ratified provide no guidance for issues such as women’s rights or slavery then I would argue that Madison’s view is fundamentally defective and cannot be used guide our understanding of today’s problems and issues.
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April 17, 2017 at 3:29 pm
bigfatmike “If the purpose is not to allow us to resolve our differences through some rational process rather than ambushing our neighbors and hacking them to death, then I will gladly eat my hat together with any secret sauce you care to devise.”
I could quote your entire reply, but it would not help. You are very confused when it comes to the purpose of a written constitution. To demonstrate this, I ask you to quote any part of the U.S. Constitution that would allow us to resolve our differences through some rational process rather than ambushing our neighbors and hacking them to death. Barring that ability, a dictionary definition of “Constitution” that would support your objective for that document would help.
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April 17, 2017 at 3:36 pm
“If only the text and the view of those who ratified it can be used to understand the meaning then how does that inform our current understanding of women’s right to vote or slavery?”
Under the Constitution, who was allowed to vote was left to the States. A Women’s right to vote was left to the states, the same as any man’s right to vote. When society reach the point of determining that it was wrong for any state to deprive a women of that franchise, the Constitution was Amended, via Article V. From that point on, the State’s could not deprive any one the right to vote based on sex.
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April 17, 2017 at 3:38 pm
“o demonstrate this, I ask you to quote any part of the U.S. Constitution that would allow us to resolve our differences through some rational process rather than ambushing our neighbors and hacking them to death. Barring that ability, a dictionary definition of “Constitution” that would support your objective for that document would help.”
How about if we just quote supreme court cases that refer to the constitution to solve very practical problems. Would the supreme court be a good enough reference for you.
By the way, all you dancing around to avoid the issue still leaves the question unanswered, how does Madison’s view inform our understanding of practical problems such as women’s right to vote or slavery.
If Madison’s view does not help resolve such problems then it is nothing more than an historical oddity.
Dance all you want to. But if Madison’s view cannot help illuminate our understanding of current problems and how we apply the constitution to those problems then it is of historical interest only!
So why don’t you help us understand the relevance of Madison’s view. Or do you want to two step away from the issue?
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April 17, 2017 at 3:41 pm
I don’t know if a longer quote from Madison will help, but here it is;
[W]hatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.
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April 17, 2017 at 3:47 pm
How about if we just quote supreme court cases that refer to the constitution to solve very practical problems. Would the supreme court be a good enough reference for you.”
Why do you now want to rely on the Supreme Court? To be clear, it was you who claimed the Constitution was supposed “to allow us to resolve our differences through some rational process rather than ambushing our neighbors and hacking them to death.” Are you just now recognizing that it is the purpose of the courts, not the constitution, to allow us to resolve our differences through some rational process rather than ambushing our neighbors and hacking them to death?
So, you want Madision’s words to apply to something they were not intended to apply to, and then want to dismiss them because they did not fit what you wanted them to fit?
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April 17, 2017 at 6:09 pm
Jason,
The Constitution and SCOTUS always are and have been about politics. Looking for the opinions of the founding Fathers is ultimately futile ahen determining whats is or isn’t constitutional. My point is that originalists, or textualists are merely mustering these arguments to justify their politics.
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April 17, 2017 at 6:49 pm
Mike Spindell, Let’s not conflate the Founding Fathers and the Framers of the Constitution. Though some played a role in both, they should not be confused. Further, I have not suggest we look to the opinions of the Founding Fathers or the Framers.
The Constitution is nothing more than a contract. Do you agree?
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April 17, 2017 at 6:53 pm
“My point is that originalists, or textualists are merely mustering these arguments to justify their politics.”
Regardless of their politics, we need to examine the correctness of their application. As Blackstone cautioned; giving too much leeway to equitable interpretation would “set the judicial power above that of the legislature, which would be subversive of all government.” I seem to recall Thomas Jefferson agreeing.
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April 17, 2017 at 11:11 pm
Are you just now recognizing that it is the purpose of the courts, not the constitution, to allow us to resolve our differences through some rational process rather than ambushing our neighbors and hacking them to death?
Jason,
The purpose of the U.S. Court System, as it is constituted today is to replace the hacking to death with means that are set up to support those that have, against those that have not. So yes there is a reduction of violence, but then again, imprisoning and giving criminal records to people of color in this country as a means to deny them their due rights of citizenship seems pretty violent to me. Allowing those with wealth and or power to generally prevail against those without same, also seems a fairly abusive manner of adjudicating disputes. I have much distaste for the workings of our American legal system and you can find my reasoning, if you type The Law Is A Whore into the search function above.
This is not to say that the sorry state of the American Legal System owes its faults entirely to the Constitution, but that the judicial system intended by those Founding Fathers, certainly is less than their document aspired to.
Mike Spindell, Let’s not conflate the Founding Fathers and the Framers of the Constitution. Though some played a role in both, they should not be confused.
While I am aware of the distinction, my usage is merely a shorthand indicating the authors of the document and those who approved its passage, at the time it took effect.
Regardless of their politics, we need to examine the correctness of their application.
This is a bit of a tautology don’t you think? The judgment of correctness is in the eyes of the beholder and devolves to politics. Surely you don’t believe that SCOTUS rulings can be defined in terms of some higher level of rightness, or wrongness? To me Citizens United and Bush v. Gore, were awful decisions based primarily on political partisanship by a majority of the Court. Scalia and his gang though believed them to be proper decisions based entirely on superior Constitutional grounds.
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April 18, 2017 at 7:38 am
Jason: I said, “For one, we have little to tell us what sense “the people” attached to it, they are dead and all that was recorded was their votes.”
You say: HOGWASH. I sense some confusion regarding ratification. On December 7, 1787: Delaware ratified. with a vote: 30 for, 0 against.
I say: So what? A 30/0 vote tells us absolutely nothing about how the voters in Delaware saw the Constitution, other than “thumbs up”. To use Madison’s words, what “sense” did they attach to it? Was their “thumbs up” about the preservation of slavery, or the denial of women to vote? Should we note that every thumb pointing up belonged to a propertied white male? What appealed to them, what did they hate but ratify anyway? Chances are, 30 votes had 30 different perceptions of what was good and bad about the Constitution. Had I been among them (as myself, not a person of their culture), then even with its many flaws I might have concluded
a) I was powerless to convince others to change it for the better,
b) It was better than the alternatives I could see developing,
c) It contained provisions for amendments, so it could be fixed later,
d) Therefore I should vote for it, as an interim measure until it could be amended.
Precisely how many of those 30 also thought it was a half measure but voted for it anyway? Nobody knows now, because they are all dead.
Jason says: Starting in the fall of 1787, legislatures in the original thirteen states called for conventions for the purpose of deciding whether to ratify the Constitution. Many records of these state ratifying conventions have survived.
So what? That doesn’t tell us what Madison wanted us to consult, how the ratifiers themselves interpreted the individual sentences and words of the Constitution. Do we know what they considered “arms” for the purpose of the 2nd Amendment? Clearly they couldn’t have known about automatic weapons or grenade launchers or surface to air missiles (or aircraft at all). Had the ratifiers known about weapons that could kill thousands in a moment, would they still consider bearing such arms an inalienable right of the individual? You don’t know, I don’t know, the Supreme Court Justices don’t know.
Jason says: Why do you think a written constitution was so important?
Do not forget you asked me why I think it was important: For the same reason a contract today is important; it defined an agreement between living people of that time, which were giving up autonomy in exchange for unity. The Constitution was the terms of their agreement, and like a contract, was there as something more reliable than their fallible memories about their agreement to join the organization.
Like a contract, it doesn’t mean everybody agreeing to it loves every term of it; most contracts are a mix of giving up something you’d rather keep, for something you don’t have but want more: like giving up complete autonomy of an independent colony in exchange for mutual protection and freedom from interstate tariffs or travel fees.
That said, the agreement made was between dead people in a dead culture, both within the USA and the world at large. At this point we aren’t even sure what some of the words and phrases in the Constitution even meant to those writing them, they are ambiguous and for some, even in 1780, they had multiple definitions and meanings.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
This may have been clear to everybody in 1790 and the way they spoke, but it justifies the right to keep and bear “Arms” with the necessity of “a well-regulated Militia”. How much does the latter depend on the former? What exactly is “well regulated” and why does it require people to have Arms? What exactly are “Arms”? What exactly is meant by “infringement”, when in the very amendment itself it talks about regulating the Militia? Semantically speaking, there is a difference between the “right of the people” and the “right of an individual”, in particular a group can have a right that an individual does not: A group can have the right to appoint somebody as their Mayor, while no individual has the right to unilaterally make that appointment. So, does the Amendment actually give the State the right to keep and bear Arms in their Militia, and therefore only persons that are members of said Militia to keep and bear Arms?
If you wish to interpret it as an individual right, isn’t preventing prisoners from having weapons a violation of their Constitutional rights? ..shall not be infringed.
Here is one god damned sentence that is so ambiguous it can be interpreted in a dozen ways. Heck, we can argue the premise that justifies the conclusion: It is no longer true that a well regulated militia is necessary to the security of a free State. Not at all. Which removes any necessity for the right to keep and bear Arms; any infringements upon that right would not have any impact (in modern times) upon the security of a free State.
Further, by the rules of grammar this clearly makes “the right of the people” subordinate to the “security of a free State”, which makes the latter more important in the eyes of the Founders than the actual Right. One can interpret that to mean any infringements should be judged in that same light, if they decrease the security of the State, such infringements should be considered Constitutional.
All of that said, “the security of a free State” is a pretty broad and ambiguous statement, itself subject to many interpretations: What exactly is supposed to be secure? The legislature and the politicians, the businesses and property, or all the citizens? What does “free” mean?
The point is that NO, we cannot just interpret the text, or consult the ratifiers, and it would make no sense whatsoever to do that. Those dead people in a dead culture agreed upon rules that applied to them. We have to decide to what extent we as a people, whomever is living at the moment, agree with their intent in creating the Constitution, and choose for ourselves, as they chose only for themselves in their time and in their culture, how best to achieve the everlasting ideals of securing life, liberty, and the pursuit of happiness, through a representative government chosen by all the people to govern for the benefit of all the people.
The Constitution should not be “revered”, it should serve (but currently does not) as our collective understanding of how best to achieve those ideals in whatever current reality we are faced with. Such provisions should indeed be written, to help remove ambiguity, but should they prove to be ambiguous, they should be revised, and that should have been the job of an independently elected Supreme Court: Not to “interpret” the words, but to revise and rewrite the ambiguous to make it more clear, to either exclude a new law or allow a new law. THEN let the States or people ratify the change or reject it. In fact they could write both types of interpretation; a revision that clearly allows the new Law, or a revision that clearly rejects it: Then let the ratification process be a vote between those two revisions. Or let every Judges on the Supreme Court offer their own interpretation of the new language or sign on to another Judge’s version; then let the people vote until one of those is accepted.
Those are ways to debug the Constitution. None of Madison’s ideas are workable in the present day, and we shouldn’t really care what anybody from centuries ago in an alien culture thought. Dead people cannot be oppressed, they have no desires that can be thwarted. What constitutes Freedom should only ever be defined by the living.
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April 18, 2017 at 9:41 am
Come on, Guys. Let’s not go down rabbit holes. This is a discussion about “Originalism” or “Textualism” as a means of interpreting the U.S. Constitution.
The point here is that the U.S. Constitution is a contract. As such, the Court interprets it the same as they would any contract. An accepted maxim of contract law interpretation is that any ambiguity is determined by looking to the accepted meaning or sense attached to it by the receiving party.
Like it or not, the Constitution is a perpetual contract entered into by our ancestors. The meaning of any ambiguous text must be resolved by looking to the state ratification debates.
Originalism:
“Original Intent” – is the meaning that the Framers of the Constitution—the delegates who
drafted the document in 1787—intended the Constitution to have. – Though original intent may work well when determining the meaning of Legislative Acts, it would go against the accepted means of interpreting contract law. – Since the convention was held in secret, and Madison’s note were not published until years after ratification, the original intent must be discarded from legal interpretation of the Constitution.
“Original Understanding,” refers to what the persons who participated in the state ratifying conventions thought that the Constitution meant. For this, we look to the records of the debates at the state ratification conventions.
“Original Objective Meaning” (aka “original public meaning”) – the reasonable meaning of the text of the Constitution at the time of the framing. This meaning is not necessarily what Hamilton, Madison, or
the other Framers subjectively intended and not necessarily what the numerous participants at the ratification debates actually understood, but instead what a reasonable person of the era would have thought. – For this, we look to context within contemporary newspapers and books.
Which one of these do you think can best be used by the Court to determine the meaning of the Constitution?
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April 18, 2017 at 10:01 am
MoreMozart, You appear to be like a bicycle with a tire stuck in a rut. Like it or not, our Constitution is a perpetual contract entered into by our ancestors. Though it can no longer have an effect on our ancestors, we are still bound to that contract, until such time as WE choose to dissolve and replace it.
You seem to understand and accept, and even embrace, the Amendment Process. That’s what we do when the Constitution does not address our changing times and culture. Look to the Thirteenth and Nineteenth Amendments for your answer to a woman’s right to vote and slavery. The Amendment Process is how we breath life into the Constitution in order to permit it to keep up with changing times. It’s how we address deficiencies. The alternative is to rely on an oligarchy of unelected representatives known as Justices. – If President Trump is able to pack the Court with right leaning judges, something tells me those on the left will be embracing the ability to amend the Constitution again.
We need only look to the Eleventh Amendment to see how this works. After the Supreme Court ruled in Chisholm v. Georgia, 2 U.S. 419 (1793), the Amendment Process was initiated. Though the original Constitution was silent when it came to state sovereign immunity, the Eleventh Amendment established it, and any pending actions in the Court were immediately dismissed.
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April 18, 2017 at 10:04 am
“This is a discussion about “Originalism” or “Textualism” as a means of interpreting the U.S. Constitution.”
Jason,
To be precise this is a discussion about a post I wrote which says that the concepts of “Originalism” or “Textualism” are specious and my reasons for believing they are. I am sure you would like to ground the subsequent discussion in issues like the interpretation of contracts, thus re-directing the discussion into legal terms of art, which is exactly the game played by the likes of Antonin Scalia and I assume Neil Gorsuch. By limiting the discussion to what to me is legalistic mumbo jumbo, meant to obscure the real meaning and human effect of rulings, is why the false interpretive methodology of “Originalism” came about, which is the point I made in my piece. Explain to me how the abomination of “Bush v. Gore“ for instance, comported with “Originalist” exegesis? The clue to the speciousness of that decision was that it was stated to be one-off and not to be used as the basis for future rulings. The SCOTUS majority was intent on electing a President of their choosing and were not to be deterred by any niceties of judicial interpretation. When it comes to interpreting the words of those long dead there is great freedom to mold them to ones own prejudgments, because the writer/speaker can never contest your characterizations.
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April 18, 2017 at 10:40 am
Mike Spindell, Bush v. Gore was not decided by employing originalism. As such, it serves no purpose when attempting to determine the benefits of employing originalism as a means of constitutional interpretation.
It is not the role of the Court to consider the “human effect” of their rulings. If it were, the Justices would be making the law what it should be, instead of saying what the law is. If the Justices were to invoke what the law should be, based on human effect, instead of the law as written, they would clearly be injecting their own personal beliefs and making them superior to what the law, in any form of democracy, is.
“When it comes to interpreting the words of those long dead there is great freedom to mold them to ones own prejudgments…”
Is it really that difficult to interpret the meaning of words and phrases by their contextual usage? If it is your position that the Justices have incorrectly applied meaning to words and phrases found in the Constitution by molding them to their own prejudgments, please provide some examples of this feat.
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April 18, 2017 at 10:57 am
From the article;
“They created a Republic in the Roman and Athenian mold and definitely not a representative democracy.”
What? I notice the article is absent a definition of “representative democracy”. Since the author is present, I will ask the author to provide the source of his definition of “representative democracy”, so that we may avoid “interpreting the words” with “great freedom to mold them to ones own prejudgments”.
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April 18, 2017 at 11:26 am
“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.”
Just flat out wrong. The Constitution did not limit suffrage to men who owned land. Quite to the contrary, it left it to the States to decide questions of suffrage rights.
I do, however, find it interesting when “In their conception” is used by an author who seems to despise recognizing originalism. Did you determine “their conception” by reading their words, or was it some other metaphysical subtlety that provided this knowledge of intent?
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April 18, 2017 at 11:50 am
Mike Spindell, I asked this question before. I would appreciate an answer as it was an unsupported declaration in your article.
How is originalism or textualism an illogical judicial doctrine?
To make it easier, let’s start with definitions of “textualism” and “originalism”.
Textualism is a method of statutory interpretation whereby the plain text of a statute is used to determine the meaning of the legislation. – Why would using the meaning of the text be illogical when determining what the words are supposed to convey?
Originalism (specifically “Original Objective Meaning” – To which Scalia, and now, Gorsuch subscribe) is the principle or belief that the meaning is what a reasonable person of the era would have thought it meant when they accepted the contractual obligation of the Constitution.
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April 18, 2017 at 1:31 pm
Jason says: MoreMozart, You appear to be like a bicycle with a tire stuck in a rut.
So do you.
Jason says: Like it or not, our Constitution is a perpetual contract entered into by our ancestors. Though it can no longer have an effect on our ancestors, we are still bound to that contract, until such time as WE choose to dissolve and replace it.
It is not a contract for anybody but the living persons that signed it. In our own law, no person is bound to perform to a contract they did not sign of their own free will. You cannot compel me to walk a tight rope, for any amount of money, if I have not personally signed a contract to do so.
The Constitution is a definition of organization, nothing more or less, in determining how laws are made. It was only agreed to by 1071 people out the 3.845M population at the time, and even then that was only 65% of the ratifying votes; not even a 2/3 majority.
For 3.844M people (and this figure does not count their slaves), 99.97% of the population, this was a decision out of their hands, agreed to by a simple majority of elites, and forced upon them as the law of the land. Refusal could be punished by death.
I used “contract” as an analogy; do not take it literally. for over 99.97% of the population; this was not a deal they could refuse and just continue living their life as they were. As much as they may have liked it, it was still a coercion for many that did not want it at all; including the 577 elites that voted against ratification.
The Constitution is a set of rules agreed upon by a small set of elites in power about how to run a country. It is defining how the legal system works, and only later in the Bill of Rights a list of things the government should not ever be allowed to do. It is not a contract with the American people. We are not bound by a contract, but by the threat of force, incarceration, or death. A contract in America can demand money and/or property if breached; the terms of the contract cannot include being shot, incarcerated, or put to death.
It is a framework they implemented that gained enough power over the citizens that it is imposed continuously upon every new citizen, and are coerced into working within it, or leaving, or being incarcerated or killed. For me, working within this corrupt system is the least bad of all alternatives. (I suppose “changing it” is a fourth option, but I hold no delusions about my power to do that and suspect I’d be wasting my life to even try.)
Jason says: The alternative is to rely on an oligarchy of unelected representatives known as Justices.
In my hypothetical alternative organization, I clearly stated: “…and that should have been the job of an independently elected Supreme Court: “
The Supreme Court should be elected, in fact every State should elect one. If we can handle 438 congressmen bickering, we could handle 50 or so SC justices debating laws, and it would severely reduce the influence of any individual justices.
I stand by my original claim: I don’t care how Jefferson or Washington perceived the Constitution. I hold no reverence for any of them. Their language is so ambiguous it wouldn’t even stand up under contract law.
Only the living are qualified to debate what “freedom” means today.
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April 18, 2017 at 1:44 pm
“Mike Spindell, Bush v. Gore was not decided by employing originalism.“
Jason,
That was exactly my point given the great originalist Antonin Scalia, who did not apply his pet theory to a case where his political preference was uppermost.
“It is not the role of the Court to consider the “human effect” of their rulings“
Au contraire. I believe that considering the human effect of their rulings should be the prime consideration of the justices. Why are you unable to see that is exactly my point of view, whether you agree with it or not.
“If it is your position that the Justices have incorrectly applied meaning to words and phrases found in the Constitution by molding them to their own prejudgments, please provide some examples of this feat.“
I have provided examples and you have just blithely ignored them. 🙂
What? I notice the article is absent a definition of “representative democracy”. Since the author is present, I will ask the author to provide the source of his definition of “representative democracy”, so that we may avoid “interpreting the words” with “great freedom to mold them to ones own prejudgments”.
Nice forensic flourish Jason, but I am not biting.
“Just flat out wrong. The Constitution did not limit suffrage to men who owned land. Quite to the contrary, it left it to the States to decide questions of suffrage rights“
And each one of the thirteen original States limited suffrage to White Males, who were landowners, or had other examples of wealth. Your point, other then looking for a rhetorical opening is…..?
“ Why would using the meaning of the text be illogical when determining what the words are supposed to convey?“
The text was written by people long dead, in contemplating a society long gone from history. I find that devoting oneself to trying to discern their meaning, in order to apply it, is frankly foolish and ultimately futile.
“Like it or not, our Constitution is a perpetual contract entered into by our ancestors. Though it can no longer have an effect on our ancestors, we are still bound to that contract, until such time as WE choose to dissolve and replace it.“
Not only are WE not bound by this purported contract, but to follow it would be foolish. Your devotion to the Scalia foolishness seems depressingly similar to those who believe the Christian Bible, or the Jewish Torah should rule their lives.
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April 18, 2017 at 2:32 pm
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