Originalism

If one were to look in the U.S. Constitution for the meaning of ‘Originalism’, they wouldn’t find it. It’s not there. It wasn’t anywhere until the U.S. Supreme Court’s Brown vs Board of Education (1954). ‘Originalism’ originated with segregationists opposed to the decision. Since, it has been heard a lot from white supremacists, white southern politicians, racists, and bigots. Been heard a lot from the Federalists Society and the Republican Party since the 1980s. Its origin, its subscribers, says it all. It suits their purposes.

Whereas ‘Originalists’ would, when it suits their purposes, harken us back to an imagined past; the writers of the Constitution were breaking from the past; plowing new ground. Imagine what the Constitution would have looked like if the writers had been ‘originalists’.

At the time, some 235 years ago now, they completed their work knowing full well that it was the first of its kind ever; fully intending it to be so. They had sought to glean the best from the past; to discard the rest. By declaring independence from Britain in 1776, they had thrown off the tyranny of monarchism; the yoke of religious repression, of the class structure of Europe, …, … Hardly ‘originalists’; they said, “enough of the bad old ways.” They weren’t trying to write the Constitution to suit their purposes. They were applying best thinking; trying to get it right. Never claimed that they had nailed it. Offered it to the young nation as a best effort compromise.

It was a compromise; one amongst what were essentially nation-states with powerful interests within (e.g., politically powerful planters with large slave holdings) that weren’t inclined to give up anything. As ours is now, theirs was a changing world. Turns out, the Constitution they had just penned would forever change the world. Not bad for beginners.

The period of the late 18^th century glimpsed the beginning of the end of monarchies, of colonialism. Still, a time that saw Negroes legally enslaved; one when women had no rights. These, too, were about to begin, beginning, to change. Media was letter and crier. The horse-drawn conveyances of the day were to soon be replaced with trains carrying freight and passengers. These trains drawn by steam-powered locomotives could cover great distances in one day. Soon, powerful, swift, steamships would sail the seas. Soon, the world would have the telegraph.

In less than four score, the Nation would fight a Civil War to finally free the slaves. Within one hundred years, electricity would power industry, light streets and buildings. The world got radio, then motion pictures. The pressures of the Industrial Age, demise of monarchies, the death throes of colonialism, would bring on a World War. In 1920, after a long hard struggle, suffragettes won women the right to vote. People began to fly hither and yon aboard aeroplanes. In rapid order followed: Television, a second World War, nuclear weapons, nuclear-powered submarines, intercontinental ballistic missiles, space travel, integrated circuit chips, very large scale integration chips, personal computers, the internet, cell phones, robots, …. Surely, even France’s 19^th century Jules Verne would have been amazed. Concurrent the technological and political changes were sociological and demographic ones of equivalent scale and scope. No one in 1787 could have anticipated the changes of the next 100 – 200 – 1,000 years. America, the world, of 1787 was no place for a Constitution carved on stone tablets. And yet, so much more change to come. At no time in our history, in the history of mankind, has there ever been a time for going back to a time past; or, even the possibility of doing so. At no time, a need for a constitution that was absolute.

Given the necessity of compromising to get anything acceptable to the then all thirteen of them, compromise they did. They gave up good things and settled for less than perfect in order to get the best Constitution they could. One that would work at this most critical time; that could see the Nation as far forward as possible. Sure there were flaws; flaws that were in large part due to some of the compromises that had to be made. Ironically, these are the same flaws that ‘Originalists’ now claim to have been the intent. Not so. They didn’t set out to make mistakes.

They sought to create a document that outlined a form of government; one that delineated certain rights. Because, they knew that they didn’t have all the answers. One that was not big on details. They understood that in order to last, it needed to be flexible. There were to be no ‘thou shalt nots’. It wasn’t intended to be a constitution that told future generations what they could and could not do. Apply best thinking, best effort, toward providing a framework; that was their intent. ‘Originalism’ is the antithesis of their intent. Their best effort was cutting edge. Absolutism and cutting edge are not the same; not even close.

There were a lot of things that they weren’t sure about how to go about; some of these which they couldn’t agree on after much discussion and discourse. Perforce, they wound up leaving a lot for future generations to sort out for themselves.

Foreseeing the need for change to this their best effort, the framers prescribed a mechanism for making changes. To wit: An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification. Of the more than 11,000 amendments to the constitution proposed to date, only 27 have been adopted. It has become ever more difficult. Today’s ‘Originalists’ Supreme Court Majority questions the compatibility with the original, the legitimacy, of some of those 27.

The framers of the Constitution themselves may not have had a great deal of confidence in the amendment process when they prescribed it. It would have been very difficult for them to foresee the difficulties of making changes when one political party is beneficiary of the things that need to be changed. In a time when the majority of the populace is calling for more equality, more representation; a political minority uses the flaws in the constitution to prevent these from happening. Having a majority of ‘Originalists’ on the Supreme Court greatly abets this distortion of democracy.

For sure, imposing ‘Originalism’ on the Constitution makes it almost impossible for it to evolve. But, evolve it must. Else, the Nation will surely die. (Thomas Jefferson eloquently spoke to this need to change in one of his letters to Samuel Kercheval.)

Given the magnitude of the political, sociological, and technological changes that have occurred over the Nation’s lifetime thus far, making the amendment process more amenable to the will of the public would be an option. This is something ‘Originalists’ would likely oppose.

Seeing the Constitution as framework, the letter of intent, and the Supreme Court as arbiter of what did and did not comport with this intent is another way of keeping the Constitution current. Those proposals for change that did comport with the Constitution’s intent would become constitutional law. Those that did not would require an amendment to become law. That was more or less the path being followed until the invention of ‘Originalism’.

If nothing is done to rid us of ‘Originalism’, we are sure to see further and further regression imposed on the Nation. Under the guise of ‘Originalism, we have already seen the neutering of the Civil and Voting Rights Acts, the Environmental Protection Act, Roe v Wade, …; things most associated with progress. If nothing is done about the imposition of this onerous rule for interpreting the constitution, all the great progress of the past century and a half will be tossed. Extended: We could become a theocracy. Racism will again become the norm. Rather being diminished, classism will grow. Oligarchs will further take over the government. Our beloved Democracy will wither away. A nation that doesn’t progress dies. — America without Democracy is nothing.