Originalists believe that certain documents (and apparently, they get to choose which ones) should be interpreted as they were understood at the time they were written. If it suits them. Oh, where to begin.
First of all, the documents they choose to apply this philosophy to are usually documents that have a legal and/or social impact upon us all, such as the Constitution and the Declaration of Independence. And when I say “us all” I’m referring to those of us who are living and breathing and viewing our world through our current cultural lens with our current scientific and technological understanding.
The arrogance of Originalists leaves me speechless. The idea that they have any clue how any document was understood at the time it was written if said document is more than a decade or two old is beyond the pale. If Americans can’t even agree on whether a life saving vaccine is in our best interests, how on earth can we assume that we can crawl inside the minds of a group of men sitting in a room in Pennsylvania in 1787 and accurately determine their intentions?
And a better question might be, why would we want to? For the constitution to continue to be of any value at all to us, it needs to change with the times and the culture that it purports to regulate. The constitution itself provides a framework of how government should be run. It lays out our (increasingly skewed) system of checks and balances, and also explains how the states relate to the federal government. That’s the skeleton of it all. But the amendments are the vital organs, the tissue, the muscle that keeps the constitution relevant and vital and up to date. At least that’s what amendments should be doing.
All our amendments came about because we have learned some hard lessons over time. We have changed and grown as a nation. We’re dealing with things that the founding fathers couldn’t even conceive of back then.
We learned that freedom of religion is critical to a country that wishes to allow human beings to explore their own spiritual belief system, rather than forcing us all into a rigid box where we’re told what to do and what we should believe without question. While many of us seem to actively seek out that sort of treatment these days, it’s increasingly obvious that checking one’s brains at the door does not serve us well.
The second amendment didn’t come along until 1791 and is about the right OF A WELL REGULATED MILITIA to bear arms. The founding fathers were a group of privileged white men in 1787, who could never have conceived of a toaster oven, let alone an automatic weapon (the Gatling gun wasn’t even invented until 1861). It had not even occurred to these men men to put anything about arms in the original body of the constitution. Do we really think that those men wanted to make it okay for people to walk into classrooms and fire bullets that spin so wildly that they don’t just kill, they mutilate beyond recognition, and they do so at such high speeds that they kill the maximum number of humans in the shortest amount of time?
And from a modern standpoint, are mass shooters, or for that matter, any individuals, considered to be a well regulated militia these days? How is that possible? Why would anyone want to make that acceptable?
When you consider that bloodletting was still being recommended as a viable treatment option by some physicians in the 1920’s, do we really want to look at the constitution as a rigid document that requires a 1787 mindset to be considered valid? Similarly, would you want to only be allowed to pursue the happiness as described in the Declaration of Independence if you had to look at it from a 1776 standpoint? Back then, you were lucky to live into your 40’s. Do you think their pursuit of happiness would align with ours? Do you think they’d have had the same opinions about a lifetime appointment to the supreme court had they known that our life expectancy today would be double what they were experiencing?
We have outgrown certain things in this country. We should modernize our constitution to allow for the importance of civic responsibility and public health. None of us should have to beg for equal rights. None of us should have to be hesitant to assemble, for fear of being mowed down by gunmen. Every single one of us should have sole autonomy over our own bodies, unless said autonomy negatively impacts public health. Voting should be easy. We have no need for an electoral college anymore. Gerrymandering should be outlawed. There should be a way to keep the internet accessible to all, and yet somehow regulate the lies and the misinformation that runs rampant therein. We need to re-implement the fairness doctrine, but make it applicable to the ever-increasing number of ways that we can now communicate. We need term limits for congress. Judges on the supreme court should not be appointed for a lifetime, and for the love of God, they should be held to the same ethical standards as other lawyers. When there is a conflict of interest, it should be mandatory that said justice recuses himself from the case.
Originalism is an unrealistic and toxic philosophy that is dangerous for an ever-evolving society. Six of the nine current Supreme Court judges are originalists to some degree. They aren’t thinking about modern times or consequences when they make their rulings. That’s scary, don’t you think? While we’re modernizing the constitution, we might want to put something in there to require that it continue to be modernized, because if Americans exist in another 231 years, they sure as heck won’t want to crawl into the twisted minds that are holding the reins of power today to decide how decent people should live in their version of the present.
Like the way my weird mind works? Then you’ll enjoy my book! http://amzn.to/2mlPVh5
2 thoughts on “Beware of Originalists”
Sorry to be so late getting to this but…Well put, as usual. Periodic renewal seems a good idea, all right, but I think there’s a couple of things should be non-negotiable. Equal rights for all humans, not altered by race, gender, age, sexual preference, looks, degree of extraversion, IQ numbers or any of the other fake crap made up by people to screw other people over with. And, the obligation to protect and maintain all the things humans need to thrive, e.g. a biosphere that supports us. And…knowledge available to all about all these things. That’s as good as I can come up with right now, and I’m sorry you had such an awful day as described in the next post.
Thanks Angi! Yes, we’re definitely on the same page regarding the two most important items to include in a modern constitution. And the bad day described in the next post is exactly why a constitution is needed. Humans do not default to decency and civility.