Next Saturday, April 6, it will be our pleasure to host Sheila Suess Kennedy and Karen Celestino-Horseman on "Civil Discourse Now" to discuss jurisprudence and the Constitution. We will stream "live" from our old stomping grounds, Big Hat Books, on Cornell Avenue in Broad Ripple
Paul Ogden has written a charming item on his blog, ogdenonpolitics.com titled: "Federalism and Constitutional Jurisprudence: Where Mark Small Goes Wrong." Paul errs as many times about personal past history as about matters related to the Constitution and jurisprudence. Then again, he is a Republican.
"Jurisprudence" is the "philosophy or science of law; legal theory or study." Black’s Law Dictionary, New Pocket Edition, 1996, p. 353.
First, if he wants to take a crack at my novel "Nineteen Seventy-Five," he at least should inform the reader where the book can be purchased. (Amazon, of course, or from me.) I do not believe he has taken time away from his perusal of smut to read that work, so it is unfair for him to comment on it.
Next, his assertion as to history is inaccurate: "Although the counter culture movement which began in the mid-1960s was fading quickly when he entered college in the 1970s, Mark struggled mightily to keep the movement alive all by himself at DePauw University." Actually, the counter culture movement of which Paul writes dates back to the days after World War II and the Beats. Kerouac’s "On the Road" was published in 1956. Leary and Kesey became actors in the movement in the early 1960s. The counter culture movement was part of a change of the ways in which people lived in the United States and viewed others’ rights. People active in the counter culture generally were active, or at the very least believers, in the Civil Rights Movement. There also was a combat action fought in Southeast Asia, across what were then the countries of Vietnam, Laos, and Cambodia. Anti-war sentiment galvanized parts of the counter culture not already galvanized by the effort for Civil Rights. By 1973, when I entered DePauw University, United States troops nearly were out of Southeast Asia, many aspects of the fight for Civil Rights were taken as "givens," and we all waited for marijuana to be legalized (just about any day then). DePauw was a progressive place, as most campuses were.
The counter culture continued to progress. I lived in West Lafayette 1980-82. Those were days when the counter culture began to slow as the human puppet named Ronald Reagan took office and did so many things, from some of which we have yet to recover.
And yes, I was in law school during the time Paul describes. I was unaware I was "infamous" as he welcomed us to Indiana University School of Law at Indianapolis. I still hold a grudge about the law school newspaper thing, but Ogden said either I could be editor or Linda "Look at all those black Helicopters" Thompson would be.
As to the Constitution, Paul is under the mistaken impression that the document drafted in 1787 became frozen in time when it was signed—or maybe when it was ratified—and maybe only after it was ratified by the 12th State—or maybe after the Bill of Rights was adopted. If that were so, then hands long dead would hold static the development of our laws today.
Let me explain my understanding of Constitutional interpretation. This might not be as simplistic as Paul’s:
"Constitutional interpretation is not a static enterprise which presents the prospect of furnishing correct, certain, or ultimate legal answers to political problems but, rather, one of a continual adjustment of tensions through a process of unending dialogue among judges of fundamentally different political faiths and experiences."
Ducat and Chase, Constitutional Interpretation, 3d ed., 1983, vii.
One place to start is the Constitution. That was a product of a convention given a charter, by the Congress under the Articles of Confederation, to make improvements to the Articles. The delegates were not given a blank check to toss out the Articles and create something new. Patrick Henry was one of 18 men—all the people chosen as delegates to the Convention were white and landowners in addition to being "male"—to refuse to attend the Convention. He said he "smelt a rat in Philadelphia." One who chooses to cling to the original intent of The Framers of the Constitution should be pressed with many questions, three of which are: (1) Who were the Framers? (2) How does one divine their intent? and (3) Did the Framers intend that "original intent" be the means by which the Constitution would be interpreted or construed?
The answer to the third question is interesting: "A careful study by Jefferson Powell in the Harvard Law Review has shown that the framers did not hold [Edwin] Meese’s jurisprudence of original intent." Tushnet, 1 Takkun, 36. John Marshall, Chief Justice of the United States Supreme Court as well a delegate to the ratification convention of Virginia, wrote: "[w]e must never forget it is a Constitution we are expounding... intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." McCulloch v. Maryland, 17 U.S. 316 (1819). If the Framers—whomever one might consider them to have been—did not believe n originalism, then the matter should end there.
As to the first, Paul does not understand why I insist on referring to the delegates as the "Framers" of the Constitution versus his use of "Founding Fathers." The "founding" of this country was not an event over several months in the heat of 1787 Philadelphia. To "found" is to "afford a basis or ground for." American College Dictionary, 1962 ed.,p. 480. The "founding" of this country goes back to the days before Europeans arrived on these shores. Carries through those days, includes the years of involuntary servitude, also includes the rebellion against the British, and the first years of rule under the Articles of Confederation. That foundation includes the labors and lives of people ineligible to vote even for delegates to the 1787 Convention—women, slaves, and people indigenous to this continent. (And while slaves and indigenous people are referenced in the Constitution, women are not.) The Framers built a structure around which government could be finished. That process is ongoing. SO if one wishes to consider "originalism," one should consider what ALL the people, even those without rights in the society, wanted as their government. Justice Scalia, a leading proponent of originalism, is fairly close to this view. He would interpret the Constitution based upon what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. In those times, most people did not keep diaries. They certainly did not record their thoughts on video, or even cassette tape. Even the written novel was "novel" in 1787. How, then, are we to discern the thoughts of "reasonable persons" of those times?
Madison wrote that we should not look to the intent of the delegates to the Convention to interpret the Constitution. He is called the "father of the Constitution." So his intent was that we should not look to the intent of the delegates. If we were to look at the intent of the Framers, to whom would we look? The 36 men who signed the Constitution at Convention’s end? The 39 who were present, and include the three who then refused to sign the document? The 55 men who, at one time or another, were present as delegates at the Convention? All 73 men chosen as delegates? Do we look to the state ratification conventions? Debate was lively and ideas, that found their ways into our government, expressed. Do we include all those people able to vote on the question of ratification? That would mean our views today would be frozen in time and fixed to the views of white, male, protestant land-owners—some of whom claimed ownership over other human beings.
Easy it is to say "I believe in original intent," but simplistic means do not portent well for a society even on the level of complexity of the United States in 1787.
Judge Richard Posner, of the United States Court of Appeals, Seventh Circuit, has written:
"A constitution that did not invalidate so offensive, oppressive, probably undemocratic, and sectarian law would stand revealed as containing major gaps. Maybe that is the nature of our, or perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug at least the most glaring gaps. Does anyone really believe, n his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple’s second child and place it in a foster home.... We find it reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by the framers of the Constitution."
Posner, Sex and Reason, 1992, p. 328.
True, a document does not "evolve." But the Framers knew the nation would grow. Their view was limited. They saw that "growth" as to the Mississippi River. Still, the area was full of natural resources and prospects for commerce. They knew the provisions of the Articles of Confederation had stunted interstate commerce. They knew the provisions of the Constitution had to allow for adaptation.
I do not fault Paul for his lack of insight on these matters. He missed the consciousness changes of the 1960s, 1970s, and 1980s, much as Hesse’s narrator in Journey to the East missed out on the fact his companions had continued on with a journey he thought had ended.
The individual States saw themselves as individual sovereigns. By "sovereign" I mean an entity recognized as possessing the legitimate and sole authority in a society to enforce its decisions through violence. There only can be one, true sovereign.
"Originalism" is a nice, simple way to dial back—to what? A simpler time when white, male landowners determined matters for the rest of society? Many of the Framers grew wealthy on land deals they cut as a result of"insider" information. Others profited from purchase, for pennies on the Continental dollar, of bonds issue to those who served in the Revolutionary War—by the way, neither a "revolution" nor, since there was no declaration of war, a "war"—and grew fat at veterans’ expense.
How should we construe the Constitution? I will answer that in Part 2.