12.23.2005
Why Originalism is a Political Screen
Originalism, the mix of political and legal philsophy holds that the U.S. Constitution should be interpreted where it is vague through a particular method. That method involves ascertaining the "original" (historical) meaning of the words used in the Constitution. The policy goal here is that the people ratifying the Constitution and its amendments thought the words they were ratifying something particular and discoverable through such research, and that this meaning was meant to be fixed permanently by those ratifiers.
There are, needless to say, an enormous number of problems with such a theory. Most law students, after their first-year, could cite the following:
Sadly, the list goes on. Yet the President and his hardcore right-wing supporters insist on appointing purportedly "Originalist" judges to the bench, judges in the mold of Justices Scalia and Thomas. Needless to say, those two justices are not the most faithful originalists. For an example, try this exercise.
Exercise: Disproving Thomas and Scalia's Originalism
Actually, I will save you the fourth step. Conservative jurists who call themselves "Originalists" consistently and abundantly rule that the Eleventh Amendment means that a citizen cannot sue his own state. They say that the text of the amendment is important, but that it is trumped by the existence, outside the Constitution, of a preexisting "sovereign immunity" that all states possess and cannot be taken away. Sound a bit like finding the "right to privacy" in the Due Process Clause?
My own view
Actually, I rather like Originalism. I read Justice Scalia's book, A Matter of Principle, and I thought he was witty and an excellent writer as well. And I like the theory, in theory. The problem is that the theory of Originalism forces the American people to go through the exhausting amendment process every time our nation's fundamental laws need to be adjusted in small ways to compensate for the rapid changes that have occurred in our world, especially those technological, societal, and economic in nature (think of the differences in scientific knowledge between 1787 and 2005!).
The theory of Originalism also is, sadly, a political screen for religious and economic conservatives, behind which they can push reactionary and regressive policies upon the nation. Activists, indeed.
If you need proof, simply read this statement from the Intelligent Design proponents from the Washington Post:
This guy cracks me up for many reasons. First, Judge Jones, the judge who rendered the recent decision striking down Intelligent Design as a curriculum mandate, is a George W. Bush-appointed federal judge. Second, this guy is basically saying that even as the President tells us Justices Roberts and Alito will not "legislate from the bench" or be "activists," they actually will do both those things. The difference from Judge Jones? Roberts and Alito will be religious conservative activists, not moderate, pro-science activists.
What does the word "activist" connote as a pejorative term, anymore? Nothing.
There are, needless to say, an enormous number of problems with such a theory. Most law students, after their first-year, could cite the following:
- Originalism requires a pre-constitutional theory in order for it to mandate itself. That is, there is no authority in the Constitution itself that says that it must be read and interpreted by Originalism only.
- Originalism will not always provide answers, which means that historians can disagree over what the people of 1787 and 1791 thought they were ratifying. This merely creates wholes in which politics can be pushed -- defeating the political purposes of Originalism.
- Originalism does not account for what judges and justices have seen as their responsibility and method over our nation's history. Read John Marshall's opinions. How "originalist" was Marshall?
Sadly, the list goes on. Yet the President and his hardcore right-wing supporters insist on appointing purportedly "Originalist" judges to the bench, judges in the mold of Justices Scalia and Thomas. Needless to say, those two justices are not the most faithful originalists. For an example, try this exercise.
Exercise: Disproving Thomas and Scalia's Originalism
- Find the U.S. Constitution
- Read the Eleventh Amendment, carefully
- Write down what you think it means. Specifically, answer the question: "Does the Eleventh Amendment of the U.S. Constitution mean that a citizen of Virginia can sue the government of Virginia?"
- Read any opinion by Justices Rehnquist, O'Connor, Kennedy, Scalia, Thomas, or any conservative jurist, that involves the Eleventh Amendment.
Actually, I will save you the fourth step. Conservative jurists who call themselves "Originalists" consistently and abundantly rule that the Eleventh Amendment means that a citizen cannot sue his own state. They say that the text of the amendment is important, but that it is trumped by the existence, outside the Constitution, of a preexisting "sovereign immunity" that all states possess and cannot be taken away. Sound a bit like finding the "right to privacy" in the Due Process Clause?
My own view
Actually, I rather like Originalism. I read Justice Scalia's book, A Matter of Principle, and I thought he was witty and an excellent writer as well. And I like the theory, in theory. The problem is that the theory of Originalism forces the American people to go through the exhausting amendment process every time our nation's fundamental laws need to be adjusted in small ways to compensate for the rapid changes that have occurred in our world, especially those technological, societal, and economic in nature (think of the differences in scientific knowledge between 1787 and 2005!).
The theory of Originalism also is, sadly, a political screen for religious and economic conservatives, behind which they can push reactionary and regressive policies upon the nation. Activists, indeed.
If you need proof, simply read this statement from the Intelligent Design proponents from the Washington Post:
"This decision is a poster child for a half-century secularist reign of terror that's coming to a rapid end with Justice Roberts and soon-to-be Justice Alito," said Richard Land, who is president of the Southern Baptist Convention's Ethics & Religious Liberty Commission and is a political ally of White House adviser Karl Rove. "This was an extremely injudicious judge who went way, way beyond his boundaries -- if he had any eyes on advancing up the judicial ladder, he just sawed off the bottom rung."
This guy cracks me up for many reasons. First, Judge Jones, the judge who rendered the recent decision striking down Intelligent Design as a curriculum mandate, is a George W. Bush-appointed federal judge. Second, this guy is basically saying that even as the President tells us Justices Roberts and Alito will not "legislate from the bench" or be "activists," they actually will do both those things. The difference from Judge Jones? Roberts and Alito will be religious conservative activists, not moderate, pro-science activists.
What does the word "activist" connote as a pejorative term, anymore? Nothing.
# posted by Vanity @ 22:25 
