ORIGINALISM IS A CODE WORD
Just watched “Meet The Press”...I’ve got to stop doing that (I mainly wanted to see what Russert would say about the contradictory testimony to the Fitzgerald grand jury–and if he would talk much about the leak). It was almost exclusively about John Roberts, and that reminded me of a caller to the Majority Report who recalled hearing Scalia speak about so-called “originalism.”
According to this caller, Scalia and the originalists say, correctly, that the Supreme Court’s function is to interpret laws passed by Congress in light of what the Constitution says. But that last part–“what the Constitution says”–is wide open to debate.
Again, according to the caller, my understanding of what he said Scalia said was that the Supreme Court can only go by the “original” words of the Constitution and I believe he said that the “intent” of the Framers should also be considered. Sam Seder rightly rebuked the caller and said originalism is bunk.
For example, it was the intent of the Framers to make black people count for 3/5 of a human being for population purposes. It was the intent of the Framers to have Senators appointed by state legislatures rather than by being elected by the citizenry. And so on. So the “intent” of the Framers is questionable, other than what they have written. Not that the Framers weren’t important, brilliant men, but we in the present cannot possibly divine their intent–we can’t even truly divine the intent of people who are living and breathing right this minute, i.e., conservatives routinely say that liberals “intend” to undermine America and all that it stands for while liberals deny this and hurl the charge right back at conservatives. So who’s right? Well, the short answer is “whoever’s in power.” But my point is that anyone can accuse a person of “intent” to do one thing or another which the accused can deny.
Why God created Brains–and Amendments
But getting back to the “original” words of the Constitution...a two-term limit for the Presidency wasn’t originally in the Constitution, the right of women to vote wasn’t originally in the Constitution, and so forth. That’s because throughout our history, people have understood that the main purpose of the Constitution is to protect the liberty of the citizens of this country. If that much isn’t clear, I can’t imagine that anything is (but as Krugman points out, these days there is no such thing as a nonpolitical truth).
In other words, the only thing set in stone about the Constitution is whether every citizen’s liberty is protected, assured, not violated–however you want to say it. The conservatives themselves know this but act like they don’t. That’s why many of them are proponents of originalism but can simultaneously propose changing the document for the stupid purposes of outlawing flag burning, outlawing gay marriage, outlawing abortion, and so forth.
This is why God gave us brains and constitutional amendments–so that we could eradicate injustice wherever we find it, even if it’s in the original words of the Constitution.
I realize that I am in fact using the original words of the Constitution to defend the idea of changing those words in some instances. Obviously the problem is that different people have different words that they want to change, but I would hope and pray that overall, everyone wants to keep the part about “securing the blessings of liberty.”