Isn’t originalism just the Rule of Law? The law means the same thing yesterday as it does today and as it will tomorrow.
It’s originalism or judges just make stuff up whenever they feel like. I’m not really sure what the middle position is.
October 21, 2020
Random Thoughts: Feminism and Court Packing
[I have nothing to add.—Joe]
He’s right, of course. The only reason originalism needs a name, and is called out as a specific practice, is that it is so rare. The vast majority of politicians in all three or more branches of government are of the “make shit up” school of “law”. They call it “living constitution”, though “Humpty Dumpty constitution” would be a more honest description.
Indeed, it isn’t just that originalism is rare now, it has always been rare. You can see this spelled out in great detail in the excellent book “Views of the Constitution” from 1803 by St. George Tucker. Politicians want to do whatever they want; an effective Constitution gets in the way of that and they hate it. They will do anything they can to subvert it, starting from the moment the Constitution is adopted. And our history shows this clearly.
Other options include not having a constitution (England is an example) or one that is irrelevant paper never actually used (any communist country), or even one that by its own words is void (Netherlands). The US Constitution is actually rather an amazing work. Even if it’s ignored most of the time, it has some effect occasionally, which is a whole lot better than nothing.
Spot on pkoning. Mostly ignored. Scalia even went a step farther in not only examining the law as originally written. But one should also consider what was going on in society to cause the law to be written in the first place.
Contrast that to Sotomayor’s…..vagina!….people of color!….we don’t make policy from the bench. wink, wink, nod, nod.
I guess people that never had an original thought. Have a hard time thinking about the origins of anything.
At one time people whipped up the term “original intent”. That was appropriately criticized — “intent” is in the cranium of the author and can’t be known.
The current definition, which as I understand it was spelled out by Scalia, is “original public meaning”. That’s a great term that says exactly what it aims for: to apply the law as its words were understood by the public at the time it was adopted.
Prof. Randy Barnett described it similarly in his book about the Constitution, based on the observation that the Constitution was ratified by conventions elected for that purpose, and the convention members were applying the “public meaning” of that time to decide that indeed this document deserve to be ratified.
No matter what you call it, it’s reall not hard to figure out. There’s enough period rhetoric, plus the Declaration, for us to know quite well what the constitution means. That’s not the issue. The issue is the number of people who hate it.
It’s same with God’s law. Lucifer didn’t like, it as it didn’t glorify him enough, and so he sought to change things, even gathering up an army and fighting a war over it. Nothing whatsoever has changed since.
That’s the title of the book I remembered.
Someone wrote an article about it several years ago commenting about Tucker’s seeing such shenanigans starting from that time.
That may have been me. I found that book a number of years ago, it’s on the web, free download.
On Lyle’s comment, you’re exactly right. Thomas Jefferson said it best:
One of the first things George Washington did after the Revolution was lead militia to put down the “Whiskey (tax) Rebellion”. American blood was spilled. So you might say Washington was among the first “liberal interpreters” of the constitution and of the Declaration of Independence, else he could have refused the position, filed a public protest, and still retire as a national hero. The impetus behind the Whiskey Tax, if I remember correctly, was that the creditors who’d help finance the Revolution were impatient for the return of their loans. So right there we see a form of “palm greasing”, or some such, by government. The financiers might simply have been told to wait their turn, be repaid as funds came available, and to not rock the boat of the new nation.
Or you might be able to make the case that all the talk of liberty and equality under the law was just selling points, after the manner of a used car salesman, and that those in charge at the time were never truly dedicated to those principles they espoused. Many of them being Freemasons, they would, by definition, have had ulterior motives. Masonry always has ulterior motives, for why else do they keep carefully guarded secrets?
In a largely Protestant land, what better way to garner support than to espouse some Biblical-sounding principles, and then, once the Revolution was won, go about implementing a somewhat different plan? Remember that Rome had banned the Bible, even imposing a death sentence. A lot of people fled Europe to escape Roman persecution, ending up in what was later to become the U.S. The remnants of Rome can never forget that, as it must have “stuck in their craws” like nothing else to see a Protestant land become the most vibrant land in the world for a time. Such a mindset, which runs on pride, self-glorification and power lust, simply cannot tolerate such an insult as having its detractors become spectacularly successful.
Biblical prophesy strongly suggests however that the U.S. will become, or has become, or was all along, the “second beast” described in the book of Revelations, which has “the horns of a lamb but speaks like a dragon”. That beast ends up causing “all the world to wonder after the (first) beast”. Were that the case we might expect to see a U.S. emissary to the Vatican (and that’s been a reality since Ronald Reagan), and we’d see top U.S. government officials espousing Roman Catholic principles and working toward the goals set forth by the papacy. Indeed, we see all of those things and much more.
He who controls the language controls the society. “Originalism” means whatever the person uttering the word wants it to mean. Just like all the other words.
If we had stuck to the Constitution, originalism would be viable but after all these decades of the Living Constitution, we need conservative activist judges to restore balance. After decades of that, then we can talk about principle.
As I’ve pointed out elsewhere, “Constitutional originalism” — the idea that the Constitution means what it says, no more and no less, and the government is bound by its language and limits — isn’t be a “Left vs. Right” issue. It’s just how it should be!
It has become a “Left vs. Right” issue because some politicians — almost entirely on one side of the aisle — refuse to be bound by Constitutional limits … but for obvious reasons can’t say that out loud.
Thus the drive to ridicule originalism and and paint it as a “conservative extremist” ideology. As if believing simply that the law means what it says — subject to common understanding at the time of its passage — and that the job of the courts is to decide if a law complies with the rules our government is required to follow, is “extremist” in any way.
It’s not a “Left vs. Right” issue. It’s a “Law vs. Lawlessness” issue. But you won’t find politicians or media outlets having that discussion.
Frank J., the man who proposed we nuke the moon. Still going strong.