Where the far left and far right overlap for fun and enlightenment

Originalism is bunk

A popular theory amongst those who would have us to return to the old times is that we should base interpretation of the Constitution on the Framers' intent. The theory is called "originalism."

However, there was no single theory of the Constitution held by the Framers. The Constitution was the product of compromises, many revolving around the issue of slavery. By the way, those who wanted to keep slavery won. Do we rely upon those individuals' vews to interpret our rights today? Arguendo, do we look to the 39 delegates of the Constitutional Convention who signed the final document? What about the 55 who attended the Convention, at one time or another? There were 70 delegates who were chosen to attend but did not. Do we disregard Patrick Henry as an influence on the final document because he "smelt a rat" at the Convention and refused to go to Philadelphia? Of course, he also is (errounesouly) quoted as saying "Give me liberty or give me death." He was a slaveholder---an individual who claimed proprietary rights over other human beings. Was his a holistic system of beliefs upon which we should rely today? Do we rely upon the proceedings of the state ratification conventions?

Justice Scalia has said we look to the mindset of the average person of the time. How? Do we consult the newspaper articles of the time? Private correspondence of various individuals? Perhaps we should read the few novels that were in print. Those are works of fiction but might give us insights into how people thought.

And what people do we include in this revival? Do we limit ourselves to the thoughts and opinions of those few who were able to vote—white, male landowners? I think 220-plus years of history have taught how foolish disenfranchisement is. Also, many of the people who could not vote or otherwise provide input to the Constitution, might have had different views on the meaning of the document. Slaves, women, and Native Americans might have differed with the delegates who held forth nightly at the taverns in Philadelphia.

We should go back to the 1780s as a rigid guide for interpretation of the Constitution the same as we should go back to that time for a rigid guide as to medicine and science. There were some good starts of ideas, but people’s life expectancies were much shorter than today.

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Comment by Mark Small on August 4, 2011 at 5:32am: Paul,

I had written a long reply, and somehow could not figure out how this damn Ning things works. I even made reference to Weehawken as to sense of humor. That post is lost in the ether.

We wouldn't have had Brown v. Bd of Education without the Court. Congress did not act until 1964 for Civil Rights. The Framers wanted judges to be lifetime appointees for a reason. The elgislatures reflect popular passions. Protection of rights is not very popular. The Court serves an important function.

And I am not saying ignore the words of the Constitution, or the history behind specific passages. I am saying there are several considerations, at least, in its interpretation. We should not be bound by what we imagine people 230 years ago would say. And who would those people be? The Framers, or all those unable even to vote for delegates to the Convention?

Comment by Paul K. Ogden on August 3, 2011 at 10:49pm: Mark, I hope you take my comments in the good humor in which they were intended. Even though you are a horribly misguided elitist/anarchist, I still consider you a friend. Especially when you're buying the beer.

So judges should take into acocunt "evolving standards of decency?" Why can't the legislature do that? After all, they are an elected body that represents the people. "Evolving standards of decency" denotes that society's views have changed. So wouldn't a legislative body be better to account for that than an uneleced federal judge?

Unless federal judges are bound by some sort of original intent-strict constructionist philosophy, I don't know what limits they would have. I think your argument actually undercuts the Lugar philosophy that we should just look at the qualifications of the judges, not their political views. If they are going to be enacting their political views into law via judicial edict, and not defer to the legislature, why shouldn't we look at their political views?

Comment by Mark Small on August 3, 2011 at 9:15pm: Paul, I do not believe we should scrap original intent entirely. My point is a rigid adhrence to what is imagined as original intent of the Framers. The alternative is not to accept the views of the particular judge. Judges must rely on case precedent, changes in the Constitution, and, in the instance of the death penalty, evolving standards of deceny.

y alternative theory is to read the provision or provisions in question for their plain meaning. Look at other courts' construcion of those provsions, as well as the amendments made to te Constitution over 20= years

Thank you (I think) for your comparison to me with Hamilton..

Comment by Paul K. Ogden on August 3, 2011 at 3:07pm: So what you're saying is that because it's difficult to determine original intent, we should scrap it entirely, and just base our constitutional intepretation on whatever opinons the particular federal judge hearing the case holds. Your approach is to turn our federal courts into unelected, anti-democratic super legislatures.

For example our cnstitution clearly recognizes the death penalty. It mentions capital punishment 3 times in the Constitution and Amendments. So you think a federal judge should be able to toss that aside and find the death penalty unconstitutional simply because the judge doesn't like it? Why not let legislatures get rid of the death penalty on their own? There is nothing that REQUIRES states to thave the death penalty. The only reason is the elitist belief that federal judges know better than legislators elected by the people.

Mark, your extreme elitist views make Alexander Hamilton seem like a Jeffersonian Republican. I can understand your criticism of "originalism." Where you come up short, I believe, is in offering an alternative judicial theory that provides guidance to federal judges and limits their power.