Beware of Originalists

They hold an unrealistic and toxic philosophy that is dangerous for an ever-evolving society.

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!


Exploring DC: The National Archives

If you want to tie up a visit to Washington DC in a perfect bow, then your last stop should be the National Archives.

Recently Dear Husband and I took a trip that we are calling “Autumn Back East 2021”. Our goal was to visit friends and family, and I wanted to show DH what autumn leaves really look like in a region that isn’t primarily covered in evergreen trees, and introduce him to our nation’s capital.

We flew to Atlanta, picked up a rental car, then drove to Alabama, North Florida, Georgia, Eastern Tennessee, Western North Carolina, and then drove to Washington DC by way of Virginia. Then we flew back home.

It was an amazing trip which lasted 15 days, and since I’m now only blogging every other day, if I gave you a day to day account like I have on trips past, it would take a month, and you’d be heartily sick of the subject before we even left peach country. So I’ve decided to focus on highlights, which I’ll do my best to keep in order. You can find the first post in the series here, and a link to the next post in the series, when it becomes available, below.

This had been an amazing vacation, but after 15 days, it was time for Dear Husband and I to go home and hug our dogs. I firmly believe that any vacation that lasts longer than that has diminishing returns. By day 16, your homesickness and exhaustion begin to overtake your excitement and joy. So, we eagerly packed up our things, but stored our luggage at the hotel because there was one last stop that we wanted to make before heading to the airport.

If you want to tie up a visit to Washington DC in a perfect bow, then your last stop should be the National Archives. As of this writing, thanks to the pandemic, one must have a timed-entry ticket in order to visit, but admission is still free. (If you plan to sightsee anywhere at all during COVID, it pays to plan months in advance. A lot is still closed or is requiring reservations.)

The National Archives houses not only our nation’s founding documents, but also, according to their website, “records that trace the story of our nation, government, and the American people.” Even my StoryCorps interview is housed somewhere therein. I had forgotten that until I started writing this post. I should have visited it.

When you approach this majestic building, you can tell the architect intended this to be a place of reverence. It is a place of significance. It is a veritable temple to our nation’s history.

The steps are flanked by two statues. Carved beneath the one on the left are the words “The heritage of the past is the seed that brings forth the harvest of the future.” Beneath the one on the right: “Eternal vigilance is the price of liberty.” That definitely sets the tone.

The first thing most people do upon entering (and we were no exception), is make a beeline for the 70-foot-tall Rotunda for the Charters of Freedom. It is there where our nation’s most valuable documents are housed. These include the Declaration of Independence, the Constitution, and the Bill of Rights.

To get to this rotunda, you have to pass through a set of 40-foot-tall bronze doors. The lighting is subdued, and there are guards around the perimeter, flanking each document case. And these are not Johnny Rent-a-Cops, either. You can tell that this is not a place for shenanigans. They mean business. I can’t remember for sure if they were armed, because no photographs are allowed and I was focused on the documents, but armed or not, these men and women were taking their jobs extremely seriously, and I was convinced that if I had tried anything (although nothing springs to mind) they’d have taken me down in the blink of an eye. Given that so many of my fellow Americans seem hellbent on eroding our democracy, I found their presence a comfort.

According to this article, preservation of these documents is a shockingly new idea. For example, the Declaration of Independence was written in 1776, so it’s currently 245 years old, but for the first 127 years of its existence, it didn’t really occur to anyone that maybe special measures should be taken so that it would still be around for future generations. It was horribly abused and neglected in those early years, and the article describes that in detail. At one point it was tacked to a wall like a boy band poster. I’m amazed that there is anything left to look at, to be honest. The article also describes current preservation efforts.

Today these documents are benefiting from very advanced preservation techniques. The cases that house them are made of titanium. The glass that you look through to see them is bullet-proof. To avoid further deterioration, the cases are filled with inert argon gas. And every night, after the tourists have disbursed, these documents, along with their cases, are lowered into a vault that is 22 feet below the floor. We should all be taken care of so well.

I can’t begin to describe to you how much reverence and awe I felt while gazing at these documents. We’ve all seen pictures of them, of course, but here they were, right in front of me. The very bedrock of our democracy. (I wish I could have taken pictures for you guys, but I wasn’t looking to get shot.)

Let’s focus on our constitution, which was created in 1788, 12 years after our Declaration of Independence. It is the first permanent, codified constitution in the world. We had broken free of Great Britain, and they don’t have a codified constitution to this very day. That was something I learned only recently. (How on earth do you function without a constitution?)

In this country, we are taught to revere our constitution as if it were a religious document. We are told that ours is the greatest country in the world, and that this document is what made it all possible. Just as we pledge allegiance to the flag every single day in school and even at sporting events, we also used to sing hymns to our government during the commercial breaks as we children watched our Saturday morning cartoons. I still know the preamble to the Constitution because of those nifty bits of propaganda.

According to this list of national constitutions, the next constitution didn’t come about until 1814, and that was for Norway. But the vast majority of national constitutions weren’t ratified until after 1950. Cuba didn’t have one until 2019. So in that way, ours is pretty remarkable.

But here’s the thing (Yeah, yeah, there’s always a thing.): Our constitution is not the word of God. As a matter of fact, it has a lot of flaws that were corrected by subsequent countries. For example, it didn’t specify who could vote, and that has caused people without land, people of color, and the female half of our population a great deal of trouble throughout the years. If you look at our constitution and include all the amendments, it lists 26 rights for its citizens. The average bill of rights for other countries lists 60 rights. And only two other countries besides ours (Mexico and Guatemala) feel the need to list the right to keep and bear arms. And our gun violence statistics are the worst in the world.

Our Constitution hasn’t kept up with modern times by any stretch of the imagination. And yet, if you want to conduct an amusing little experiment, approach Americans, one by one, and tell them their constitution should be scrapped and completely rewritten, as the constitutions of many countries have been in order to keep up with a maturing culture. The looks of sheer horror on their faces will be priceless. We’ve been fed a reverence for this document with our mother’s milk. That’s great if that’s how you interpret patriotism. But that means our constitution is completely rigid and inflexible and no longer serves us well.

Yes, we’ve had 27 amendments to the original document, but they are few and far between. Number 27 was ratified in 1992, but before that, number 26 was in 1971. I’ll be shocked if another amendment is ratified in my lifetime. That’s a shame, because so much needs to be addressed that isn’t. The lack of amendments is not proof of a perfect document, but further evidence that this nation has been so polarized that I fear we’ll never be able to come to an agreement on anything.

We can’t even agree as to the founding fathers’ original intent with the second amendment, which was ratified in 1791, when we were still terrified that the British would overthrow our country. To them, “arms” were single shot rifles that could be fired only once every 30 seconds, and they were wielded by trained, responsible men, primarily to put food on the table. I’m quite sure that the founding fathers would have been horrified to see modern teenagers toting assault rifles.

I truly believe that it would be better to start fresh with a new constitution that is written with the knowledge and insight which comes from a more enlightened and inclusive society, one which has hopefully learned from its mistakes. Things like “All American citizens who are 18 or older shall not be prohibited from voting.” Yeah, I know. Never going to happen.

Having said all that, I was still awed by what I got to see in that rotunda. I’m sure it was part lifelong indoctrination, and part respect for this amazing democratic experiment of ours, but what it translates to is pure veneration. I’m very glad that this was our last stop in Washington DC. These documents are why DC, and the rest of this country as we know it, exists. It was only fitting to pay homage.

There are other displays in the National Archives, including one of four surviving originals of the Magna Carta that was written in 1297. It is the first known document that spells out human rights. Most of it wouldn’t work today as they were living in a feudal system, but the idea that humans should have rights, as evidenced by the Magna Carta, is what inspired our Charters of Freedom. I could not believe I was looking at this amazing charter.

I’ll be writing about a few of the other National Archives displays in a separate post, but for all intents and purposes, dear reader, this is the last official post for this particular vacation. Thanks for taking the journey with me. It’s been quite a trip!

Claim your copy of A Bridgetender’s View: Notes on Gratitude today and you’ll be supporting StoryCorps too!