Note: This is a post from my secondary blog, Gulf South Free Press….I am re-posting it here for all those readers that may not follow my other blog.
College of Political Knowledge
Subject: US Constitution
There are those that feel the US Constitution should be interpreted as it is written….these people are called “Originalists”…..
But what does that really mean?
Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision. The original meaning of a constitutional text is an objective legal construct like the reasonable man standard in tort law, which judges a person’s actions based on whether an ordinary person would consider them reasonable, given the situation. It exists independently of the subjective “intentions” of those who wrote the text or of the “original expected applications” that the Framers of a constitutional text thought that it would have.
Originalism is the idea that we should interpret the Constitution with its original meaning. But what, exactly, is the Constitution’s “original meaning”?
Some originalists argue it’s the meaning as understood by those who ratified the Constitution in the various state conventions, or the public that elected those ratifiers. Others say it’s the understanding of a reasonable, well-educated reader. Still other scholars claim the Constitution is written in legal language and should be interpreted with its original “legal” meaning. With this approach, for example, the term “ex post facto laws” likely refers only to retroactive criminal laws, and not to all retroactive laws.
I bring all this up because the SCOTUS of today is loaded with so-called ‘originalists’ and that could have a lasting influence over American society for decades.
Does ‘originalism’ have a place in our history?
I think not because the Founders were smarter than to believe that the ideas they put forward would last an eternity…..
But I am not alone…..
Columbia Law Review published one of the most important and topical scholarly articles in recent memory, “Delegation at the Founding.” Its authors, Julian Davis Mortenson and Nicholas Bagley, put forth a sweeping argument: They assert that an ascendant legal theory championed by conservative originalists has no actual basis in history. That theory, called the nondelegation doctrine, holds that the Constitution puts strict limits on Congress’ ability to let the executive branch set rules and regulations. Congress, for instance, could not direct the Environmental Protection Agency to set air quality standards that “protect public health,” and let the agency decide what limits on pollution are necessary to meet that goal. Nondelegation doctrine has enormous consequences for the federal government’s ability to function, since Congress typically sets broad goals and directs agencies to figure out how to achieve them. The theory is supported by a majority of the current Supreme Court; in 2019, Justice Neil Gorsuch signaled his eagerness to apply the doctrine, and at least four other conservative justices have joined his crusade.
https://slate.com/news-and-politics/2021/03/neil-gorsuch-nondelegation-bagley-mortenson.html
What do you think?
Was the Constitution meant to last an eternity or were the Founders just giving us a guideline to follow and never meant to be eternal?
For instance the 2nd amendment…..when written we were using muskets for protection and providing meat for the table…..did the Founders foresee the advancements is firearms or is it up to changes as the weapons change?
Thoughts?
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“lego ergo scribo”
and then there are those like me who believe that the constitution was working just fine before the rise of radical right wingers in the United States and that solution to our problems is not re-writing the constitution so much as it is in disenfranchising the radical right wing.
Ratification will be the biggest problem with a re-write…..that Right wing is here to stay….so we just learn to live with less rights and freedoms is not acceptable. chuq
When a dictator dispenses with a constitution and writes a new one there is no need nor opportunity for a ratification process.
I just do not see that happening….attempted possibly…..chuq
Keep your eyes on Trump and wait a little bit and you just might get to see what I am talking about.
I am watching and writing…..chuq
Chuq… this is a two-part reply… busted up to avoid reader fatigue. Sorry, but I think the subject needed some detail, as it pertains to my sole opinion.
Doug’s BS Reply – Part 1 of 2
I am not an “originalist”. I am also NOT one who holds our “Founding Fathers” in some sort of deity status, or in some form of patriotic “sainthood”. I don’t feel the need to constantly present the learned quotes from their speeches and publications of the day as some sort of “biblical” admonitions to support contemporary political thought. I blame our school systems (our American culture) for imposing that upon all of us from birth, as well as our American propensity to turn the works, actions, and deeds of famous folks into legends. I think “American patriotism” has come to be applied to anyone having a political opinion they think everyone should follow… and if you don’t, then you are “unpatriotic”.
Let me qualify. I consider myself “patriotic” in the traditional sense. That means I totally respect what the “Founders” did… and most assuredly, the risks they took of life and limb in signing the Declaration and separating from the King. They were indeed traitors and rebels… but to those oppressing them and denying what they felt were inalienable rights of living life. But let’s make no mistake about some elements of history here. Historians of that day and age have determined that polling would have revealed only about 50% of the “colonials” sided with independence from England. That’s not to presume the opposing 50% were completely loyal “Loyalists”. Many thought a war with England a nice idea in theory, but bad in general given the power that England wielded at the time… not winnable, and fearing retribution, hence they preferred to defer to the status quo.
Another point of context… our “Founders” were the educated, elitists of their day. Largely successful business men who had money, power, and influence to induce changes in governance. Many even helped finance the raising of the military to fight against England. Today the general consensus is to hate people like that… calling them authoritarian, power-hungry dictators with secret (or not) self-serving agendas. Fact be known, the “Founders” were in fact self-serving… and elitist (by today’s standards especially). Everything present day Trump-MAGA people hate.
The “Founders” wanted a government that allowed for them to express free market capitalism in tandem with a representative government that appreciated human rights freedoms. Can’t get much more collectively self-serving than that… America was started by businessmen who wanted to enhance their profits. But let’s not forget, that a free market can only exist in a free political system. They understood that. Today that thinking is “the enemy elitist”. Why is that?
I know you know that those ‘rights’ were an after thought….sorry Doug but I see the system as gamed….the only true (sort of) free market is that of illegal drugs…chuq
The “Founders” wanted a government that allowed for them to express free market capitalism in tandem with a representative government that appreciated human rights freedoms.
Let me rephrase that for clarity and accuracy —The “Founders” wanted a government that allowed for them to express free market capitalism in tandem with a representative government THAT APPRECIATED HUMAN RIGHTS FREEDOMS FOR A SELECT CLASS OF PEOPLE, BUT, UNFORTUNATELY, NOT EVERYONE. (Basically wealthy, white, slave-owning property holders.)
I bow to you on that one, John. While at the time they didn’t not perceive anything “incorrect” with that concept given it was so natural and commonplace for their social construct of their day… it does actually hold truth by today’s standards. You could add to your list, even subjugation of women as second class citizens, thusly without a vote. Very good point, John.
“didn’t not” ?? did not.
Doug’s BS Reply – Part 2 of 2
You get into a debate with an “originalist” as it relates to the Constitution, they will invariably start citing Constitutional “justifications” to explain how things were written by using “Founders” quotes from outside publications of the day, like “The Federalist Papers” and our Declaration. Well.. sorry… one of those was an opinion publication.. the other a letter to the King of England at the time declaring our independence. Neither were debated and ratified government-creating documents. Admittedly they were well written prose by their authors, a historically valuable insight into thinking of the day, contained well-thought philosophical concepts of those times, and very likely an impetus for building upon for the final product, that become our Constitution. But don’t cite to me that something written in the Constitution has some “logical” or “obvious” interpretation according to something written in another document… much less in the 1700’s. If you want to be an “originalist” then don’t prove me something using a writing in “The Federalist Papers”, the Declaration, or some mail correspondence between two people. Yes, I know that some SCOTUS decisions in past history were prefaced by using interpretations drawn from quoted authors in other documents. It does not mean I promote that. The Justices will do what they do. It certainly does not make them or their conclusions correct or incorrect. But the Constitution says they are our final authority… and THAT is what I pledge allegiance to, whether I agree with their decisions or not.
Now for the Constitution itself. The “Founders” we all agree were the smart guys of their times and they came up with the draft that went out to all the colonies for debate and ultimately ratification. In fact, the elements that went into the drafts of the Constitution were hotly debated. The text written was just not from a singular point of view from a only couple of the popular guys and agreed on by consensus alone so everyone could get home for supper on time. We might assume the amendments devoted to the “Bill of Rights” forms the basis for the rest of the document… but we can utilize a measure of common sense that these “Founders” had no illusions that the document should maybe be created as a GUIDE, with the Bill of Rights being the guardrails. For example, Congress shall make no law infringing on the freedom of speech. Yet we know there are indeed laws that do just that. The common example being the crying of “Fire” in a crowded movie theater. This is why we have SCOTUS in place.
When the “Founders” created the text for the Second Amendment I am sure it seemed pretty concise and to the point.. for their day and age. Actually… for ANY day and age, to me. The funny part of that is that “originalists” are typically Conservatives who love their guns… yet there’s been more interpretive nonsense to that simple sentence over the decades. It seems “originalists” are “original” until they think their guns will be taken away… or controlled. Where in the Second does it even suggest that owning guns assures government stays in line? There was a distinct concern back in that day that other world powers of the day (France? Spain? An English redeux?) might make an attempt on the fledgling new nation with English protection gone, and the need for a traditional citizen army would need to be in reserve, and under shared control with the individual states. I’m not sure I see in any of that the determination that the Second means we can carry any kind of gun willy-nilly wherever we go under the pretext that we need protection from “bad people”, and the additional option of needing to “correct” government whenever necessary. Yet this debate will continue for likely generations to come. My point.. the Constitution was intended as a dynamic document… meant to be “improved” to meet the needs of future Americans. It was not meant as a static document to memorialize the Founders.
Fini
Whew! I agree it was and is not suppose to be static…then the problem is political ideology that will stand in the way of any positive change. Thanx and I do not thi8nk it was a BS comment….thanx chuq
The Constitution was designed to be a check on unbridled government power over the Citizenry. That ‘originialist’ premise should indeed be eternal. And the Founders built in a mechanism for change, but one that could not be easily abused by any regime in power.
The Founders also rules that the State was to follow, to protect basic civil rights and liberties. This is why the Constitution protects (not grants) the basic Rights to speech and arms….as opposed to quill and ink or muskets. They were well aware of technological innovation in all fields of science and mechanics, and knew that just because technology changes, the Rights of the Citizen doesn’t.
This also, should be an ‘eternal’ premise….for those who value Liberty at least.
Re-posting. It didn’t seem to go through earlier.
The Constitution was designed to be a check on unbridled government power over the Citizenry. That ‘originialist’ premise should indeed be eternal. And the Founders built in a mechanism for change, but one that could not be easily abused by any regime in power.
The Founders also rules that the State was to follow, to protect basic civil rights and liberties. This is why the Constitution protects (not grants) the basic Rights to speech and arms….as opposed to quill and ink or muskets. They were well aware of technological innovation in all fields of science and mechanics, and knew that just because technology changes, the Rights of the Citizen doesn’t.
This also, should be an ‘eternal’ premise….for those who value Liberty at least.
It came through although this one was hiding in my Spam folder….sorry chuq
The Constitution was designed to be a check on unbridled government power over the Citizenry. That ‘originialist’ premise should indeed be eternal. And the Founders built in a mechanism for change, but one that could not be easily abused by any regime in power.
The Founders also rules that the State was to follow, to protect basic civil rights and liberties. This is why the Constitution protects (not grants) the basic Rights to speech and arms….as opposed to quill and ink or muskets. They were well aware of technological innovation in all fields of science and mechanics, and knew that just because technology changes, the Rights of the Citizen doesn’t.
This also, should be an ‘eternal’ premise….for those who value Liberty at least.
The addition of the BoR protected the people’s rights….you seriously think they were concerned with changing technology? chuq
No……not “concerned”. Aware. They knew that technology would evolve (as it had previously)……and they knew that rogue regimes would try to exploit that to shift power to the State; at the expense of the People.
I do not think most of them were looking that far in the future of things…their concerns were to protect their holdings. chuq
You and I have dabbled with this in the past, and I do respect your perspective. I might go along with the Founders (and their generation) being aware of the inevitability of change as it related to their awareness of change since the ancients of Greece and Rome to their time. But I would hold in question their “awareness” of technological advancements in a possible future having such a great impact on culture, politics, and quality of life. Well, maybe Ben Franklin did. 🙂
You know, I should make a point here. We tend to separate out the first ten amendments as being the “Bill of Rights”, and as such those Rights have become the essence of American idealism AND our bedrock of practicing our form of governance. Given that, I might submit that there could be an idealistic difference between the opinions of the Constitution being a dynamic or static (originalist) document in regards to how we perceive the Bill of Rights. Do not all subsequent amendments serve to adjudicate the limits of the the Bill of Rights, refining to meet the changing times? Again, given that, how does “originalism” even fit into the picture? The idea with that opinion seems to always center around to “..how it was originally written.” If that were the case, would that not nullify all subsequent amendments?
Great questions but we need a Constitutional scholar for a proper answer. chuq
I feel like you’re missing the point, which is specifically this……the Founders knew that we have certain basic Rights, inalienable if you will. Just because technology or social culture evolves, doesn’t mean we surrender our Rights to free speech, RKBA, trial by jury of our peers, etc. Are you trying to argue that those Rights are transient and discardable?
I think I am suggesting that the amendments past the first ten seemed to have already done what you are suggesting, obviously not with the intent to “surrender” anything but rather to apply more equality, etc. Again… not being able to scream “Fire” in a crowded movie theater is most surely an infringement… (a surrender?)… of free speech in the strictest sense, is it not?
We’ll here’s the thing…..yelling “fire” in a crowded theater is a trope. The phrase was coined in 1919 by Justice Holmes, who promptly did an about face in another case a year later.
Pointedly, it is absolutely within the parameter of the 1A to yell such a phrase, given that said phrase could actually be true.
At this point, I’m not really even sure what your trying to argue.
That was the usual example to illustrate that not all speech is literally free, or without legal consequences. My overall point was that the amendments 11 and onward were, in fact, limitations.. fine tuning, if you will, on elements of the first ten. It would seem that “originalism” was lost beginning at the inception of amendment 11 as that further detailed elements of judicial process as it pertained to one of more of the first ten.
Some time back I did some research on application of the Ninth in the gun control debate… given the Ninth seemed a rather “the list of Rights indicted here are not the only Rights available” kinda thing.
One legal-eagle declared…
” The problem is the open-ended nature of the Ninth Amendment. If some people assert the right of individual gun ownership, others might assert a right to assisted suicide or child pornography. To avoid any use of the Ninth Amendment, the Supreme Court’s gun-rights proponents prefer to rest their case on the Second Amendment.”
ChatGPT indicated…
“However, it is possible for proponents of gun control to use the Ninth Amendment in their arguments as a way to address concerns not explicitly covered by the Second Amendment. They might argue that while the Second Amendment acknowledges the right to bear arms, it does not preclude reasonable regulations to ensure public safety. The Ninth Amendment could be invoked to emphasize that the right to bear arms is not absolute and should be balanced with other rights and considerations, such as the right to life and the well-being of the general public.
In this sense, the Ninth Amendment could be used to support the idea that the Constitution’s protection of individual rights does not mean that those rights are immune to reasonable limitations when there are compelling societal interests, such as reducing gun violence and ensuring public safety.”
Again, the Constitution itself offers the ability to change itself… for a reason.