Constitutional Originalism | A Bright Idea or a Political Ploy?

 

 

By Jim Sullivan

Our Constitution has three primary functions:

  1. It creates a national government composed of three branches—a legislative branch, an executive branch, and a judicial branch which, taken together, constitute a system of checks and balances among those branches.
  2. It divides power between the federal government and the states.
  3. It protects specific liberties of American citizens.

As a body of law, our constitution must be interpreted by  Justices of the U.S. Supreme Court because the writers and ratifiers of the original document could not possibly have foreseen all the situations and circumstances the constitution would need to be applied to.  In addition, the constitution is in places vague or ambiguous.

So the question of how we interpret the constitution naturally arises.  Broadly, there are currently two schools of thought on how the constitution should be interpreted:

  1. As a living constitution, accommodating to brand new issues and circumstances not foreseen by the Founders, e.g., how to protect privacy in the age of smartphones.
  1. As a body of law which should be interpreted as the writers and ratifiers of the original constitution intended it to mean.

There are arguments pro and con for both approaches.  The living constitution approach is supported by, for example, Thomas Jefferson’s idea that the constitution should be torn up and rewritten every twenty years to accommodate new and changing circumstances. 

The originalist approach is supported by those who do not wish to see the constitution used for political purposes.  By adhering to the text or intent of the original Founders, we are supposed to, it is claimed, avoid the politicization of the constitution.

It is very interesting to note, however, that constitutional originalism arose in response to the liberal decisions of the Warren Court, which reigned from October 5, 1953 through June 23, 1969.  The liberal decisions of the Warren Court included new rights to privacy, racial equality, religious dissent, and judicial process.   These liberal decisions enraged conservatives.  Conservatives thought the U.S. Supreme Court was legislating with these liberal decisions, instead of simply interpreting the Constitution. 

As an example, Brown vs. Board of Education, delivered on May 17, 1954 by the Warren Court, ruled that state-sanctioned segregation of public schools violated the 14th amendment and was therefore unconstitutional.  Originalists argue that Brown vs. Board of Education was wrongly decided.

Gradually conservative justices and legal scholars evolved the doctrine of originalism to stop such liberal Supreme Court decisions.  But the originalists’ claim to avoid politics in judicial decisions was itself based on a political decision, i.e., to stop courts such as the Warren Court from making liberal decisions.

The Supreme Court was intended by the Founders to be above politics and to decide cases strictly on legal principals and prior judicial decisions.  In light of the Court’s history we can easily see, however, that that principle is a myth.  The U.S. Supreme Court is and has been political for a long time (recall FDR’s attempt to stop the–at that time–conservative Supreme Court from undermining his attempts to reverse the Great Depression; also recall the political spectacle of the recent Kavanaugh confirmation hearings).

The originalist theory of interpretation is simply a political attempt on the part of conservative legal scholars and Justices like Clarence Thomas and the recently deceased Antonin Scalia to prevent the court from making liberal decisions.  Moreover, by far most if not all originalists are conservatives. 

 As Thomas Jefferson wrote in a letter to James Madison in September of 1789,  “…I suppose to be self evident , ”that the earth belongs in usufruct* to the living” (i.e., the earth belongs to the living), the dead having neither rights nor powers over it”.  In addition, nowhere in the historical record is it stated that the writers of the constitution wanted future generations to hew to the exact text or meaning of the constitution as they wrote it.

The case for the living constitution method of interpreting the constitution, though subject to political bias, is abundantly clear and sensible.  As former Justice Stephen Breyer has noted, one way of preserving our constitution is to allow interpretation of it to include adjustments for new circumstances and issues, none of which the Founding Fathers could have foreseen. 

  • usufruct is from the Latin “usus et fructus” which means “use and enjoyment”.

 

Jim Sullivan is a Citizen Journalist and retired  businessman with graduate degrees in political science and business.  He lives in Ventura with his wife Juliette and two family cats.


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