Beware of The Originalists

My friend quipped to me that I could have made it as an African American history major because he just noticed how quickly I was able to rattle off dates, and times and all what others may consider minutae, but what I consider quite essential to understanding some of our present day issues here in the United States.  I was really inspired to be a historian, when John Hope Franklin returned to his undergrad alma mater in the fall of 2005, but alas, that was my senior year of school and that ship had sailed.  Furthermore, as I was currently enrolled in the only African American history I’ve ever taken to date, I was assigned to do a bibliographical essay–I simply said oh hell nah! This aint for me.  I got through the class, passed with a B+ which of course I felt was worthy of an A because of my stellar 19 page paper comparing Nat Turner and Dr. Vernon Johns (predecessor to Martin Luther King at Dexter Avenue Baptist Church in Montgomery), but she gave me that 89% and made the 90% ever so elusive.

Now that that trip down memory lane is over (whew, I really reached way back for that one), I’m not a historian by trade, but a homiletician/professor/preacher in training (yes, i differentiate homiletician and preacher), but I still do keep my ear to the ground, and something this juicy I just couldn’t pass by. 

I remember my sophomore year, 1999-2000, I had Mr. Kevin Westbrook for U.S. History at my high school (he’s now been promoted to department chair at one of the city’s top public schools) and he couldn’t have been more than 28 or 29 the year he had our class.  Young cat, with an afro, and a pick with a fist on it no doubt, and I remember when he passed out the text books to the mixed class room, mostly white, with the next smattering of Asians and Latinos and two blacks, I being one of them, I remember hearing the words “revisionist history” for the first time.  He drew our attention to the state/city supplied text book which was entitled Triumph of America (or something that had the word Triumph as the first word) and through dialogue with the class he let it be known that this was still revisionist history at is best, and to let us be aware of how those who are victorious have a different side of the story than those who lost.

So, when Sean Hannity, the other night was intereviewing Bob Barr, I heard Sean Hannity, who I consider to be a hot mess, throw out a word with which I was totally unfamiliar with, I was intrigued–how dare Sean Hannity know more than me.   Within the context of him referring to McCain appointing “originalist justices to the Supreme Court” I figured that it had to do with a particular interpretation of the Constitution.

Now, I’m sure you all know where I’m going with this.

Now had he said the Declaration of Independence, different story, we all love the

We hold these truths to be self-evident: life, liberty and the pursuit of happiness.

That’s nice, but thats the Declaration of (white soon-to-be-Americans) Independence, the one in which women and all other indigenous residents of North America were not included.  But using my pop culture encyclopedia called Wikipedia (isn’t it wonderful) with which to understand this idea of originalism, something that clearly Sean Hannity and many other conservatives subscribe to.

In a nut shell, originalist thought susbscribes to the “original intent” of what was written, especially as far as the Constitution is concerned.  The opposite of originalists are strict constructionists which seem to be an even more dangerous group of people out there. 

Per an example from Wikipedia:

Both theories are associated with textualist and formalist schools of thought, but there are pronounced differences between them. Justice Scalia differentiates the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that “he uses a cane” means “he walks with a cane” (because, strictly speaking, this is not what “he uses a cane” means)

And in case that wasn’t plain enough for you, here’s another one that brought the point home for me between the two:

Suppose that the Constitution contained (which it obviously does not) a provision that a person may not be “subjected to the punishments of hanging by the neck, beheading, stoning, pressing, or execution by firing squad“. A strict constructionist would interpret that clause to mean that the specific punishments mentioned above were unconstitutional, but that other forms of capital punishment were not. For a strict constructionist, the specific, strict reading of the text is the beginning and end of the inquiry.

For an Originalist, however, the text is the beginning of the inquiry, and two Originalists might reach very different results, not only from the strict constructionist, but from each other. “Originalists can reach different results in the same case” (see What Originalism is Not — Originalism is not always an answer in and of itself, infra); one originalist might look at the context in which the clause was written, and might discover that the punishments listed in the clause were the only forms of capital punishment in use at that time, and the only forms of capital punishment that had ever been used at the time of ratification. An originalist might therefore conclude that capital punishment in general—including those methods for it invented since ratification, such as the electric chair—are not constitutional. Another originalist may look at the text and see that the writers created a list. He would assume that the Congress intended this to be an exhaustive list of objectionable executions. Otherwise, they would have banned capital punishment as a whole, instead of listing specific means of punishment. He would rule that other forms of execution are constitutional.

The paragraph above does not give examples of Original intent vis a vis Original meaning. Using the former, the Judge would look for the letters and journals of the Founders on the subject of capital punishment. If he found that a majority expressed an aversion to it, the interpretation would be averse to capital punishment. Using Original meaning the Judge would look for the frequency of each contemporaneous form of capital punishment. If any form other than those listed was extremely rare, the decision could be averse to all capital punishment. If another form, not listed, was not rare, the decision would have to be in favor of capital punishment because reasonable persons in 1793 would so interpret the clause.

I hope you read the aforementioned so that I can bring the whole point home, and not let it be lost.  But here it is:  How in the hell can any white person allow words to pass the barrier of their lips that they are in favor of originalism or strict constructionists as far as the Constitution is concerened?

For me this is more dangerous than your average garden variety conservative.  Joe Six-pack probably doesn’t even rememeber Article 1, Section 2, Paragraph 3 of the Constitution.  If you don’t hopefully this will jog your memory:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

That clause more commonly known as the 3/5ths clause as a result of the 3/5th Compromise was the framers original intent of how to deal with slavery without mentioning blacks at all in the scheme of framing the governemental workings of the newly formed country.  Most will acknowledge that this was really a way to appease the southern colonies who actually wanted their slaves to count as 5/5ths of a person, in order to get more congressional seats in the House of Representatives, but the northern states opposed simply because the votes would be swayed in their favor.  So the two came up with the 3/5 compromise as how to apportion representatives, and the slaves were the direct tacit implication of “all other Persons.”

Granted some good liberal revisionists would throw out all this other talk about districting and gerrymandering and the original intent of the framers (I actually had a professor in GRAD SCHOOL of all places look completely shocked that I was able to inform him about the congressional allotment as a primary reason for the 3/5ths clause–he sooooo totally insulted my intelligence even further when after class he asked “Where did you learn that?”), the point still remains that my MALE ancestors were viewed as only 3/5ths of a person and the women, of course, didn’t count.

Thankfully, this 3/5ths clause was superceded by the 14th Amendment in section one that clarifies the understanding of citizenship and then section two which clarifies who gets counted as far as apportionment of congressional seats are concerned–however, excluding Indians who were not taxed (doesn’t it say something about domestic policies from early on).  Just as a note, it’s a bit interesting that after the 13th Amendment was passed in 1865, it still took another three years until 1868 to get an amendment passed guaranteeing the ful citizenship of the new freed slaves.

So, I really wonder what these originalists, and Oh Gawwwwd, these strict constructionists would say when encountering the 3/5ths clause.  I wonder what reductio ad absurdum (yay! I found a new phrase, be on the look out for it in many other blog posts) a Sean Hannity would say in defense of their own opinion, but try and get around not coming off as a complete racist.  But then again, imagine what a Pat Buchanan would say–I just shiver at the thought.

For what is worth, these people, those who put together a country, I will admit that they did have it together.   I give credit where credit is due.  However, these Constitutional framers were NOT the Second Coming!  I hold the Bible in the same regard, I think its foolish to impose 1793 thought on that of two century’s later.  There were MANY things that the framers did not take into consideration, techonological advances aside, many progession of thoughts and the globalization of the world, I am convinced, were not a part of their worldview.

But again, are we going to trust the original intent of those who allowed for the peculiar instiution of slavery?

Keep it uppity, and keep it radical, JLL

5 thoughts on “Beware of The Originalists

  1. This comes a little late given the date of your article, but I’m in the middle of a law paper analyzing the originalist Constitutional analysis of Justice Clarence Thomas and found this interesting piece.

    In short, I wholly disagree. We need originalism. Those espousing a living constitution run a terrible risk of erasing the protections from government that we are afforded by the Constitution.

    Take, for example, the fifth amendment. We can’t be forced to incriminate ourselves. Now to a living constitutionalist, that meaning can change over time. If we have a few terror attacks, some really high crime rate, and maybe a drug war or two spills across our borders, they might find that the idea of absolute freedom from coerced interrogations is a bit “out of date,” and that our “evolving standards” have changed to allow some coercion to better protect society. An originalist would ask what protections were meant in 1791, and conclude that it meant no coercion, no how. We might sacrifice some of the “added” content that the Court has piled on over the years (perhaps even Miranda, but I doubt it, because Miranda isn’t a Constitutional rule, it’s a guarantee of voluntariness).

    Originalism makes sure that judges can’t just make up the law. Yes, it gives dead white men from 200 years ago more control than we might like, but two protections are given. First, we can amend the Constitution if we need, and we have done so when it was important enough. Secondly, the sovereignty of the States (once used to protect slavery) works in our favor because the trend in the last few decades has been to give more protection to citizens. States all over the nation are giving better rights than the minimum that the Constitution mandates. Both of these were foreseen by the founders, and this is the process intended to allow the Constitution to “evolve” with society – elected representatives changing the law to fit a changing world, not judges. Only the representatives are accountable to us, justices are appointed for life, and pay no consequences for enforcing their will on us. Originalism ensures that those judges stick to the law as it is written, and that is how it should be.

  2. @Steve

    Thanks for your comment.

    Truly, I value your opinion given your breadth of knowledge on this topic. I’m merely a lowly blogger who has no law background, let alone Constitutional law.

    However, after re-reading my article and reading your comment, I still stand, at least, by my question. Whereas I see your point, and agree with it in theory, I’m just not convinced that what you suggest is the best as far as practice is concerned. Perhaps, it’s because of my hermeneutic as an African American descendant of slaves in this country, or maybe not. Whatever the case may be, when I hear people trying to hearken back to 1791 as the superior of judgment criteria I get scared–what else are we willing to go back to?

    I believe that asking the question “what was the original intent of the law?” whatever it is, Constitution or otherwise is a more than valid question in the judging process, I see it as a no more valid question than the plethora of other criteria to go into a fair ruling.

  3. Thanks for your reply.

    I can see the basis for your concern, in that a person who says “I wish things today were like they were in 1791” obviously either isn’t thinking of the whole picture, or has some pretty wrong ideas in mind. However, originalism doesn’t ask us to go to 1791 as a basis for our qualitative or moral judgment. Its sole purpose is to ensure that the definitions of the words remain constant over time. There is no danger of “going back” to the “good ole days.”

    Also, current originalist thought doesn’t ask about the intent of the founders, it asks what the law meant at the time it was passed. In other words, if what the founders meant by “assistance of counsel” was something obscure, such as the right to a priest, then that’s too bad for them (they should have been clearer). When the 6th Amendment was ratified, “counsel” commonly meant legal representation, as it does today. Therefore the 6th Amendment must always protect our right to an attorney, and no change in society’s viewpoint, language use, or values can ever erode that protection.

    Justice Thomas does sometimes apply the “original intent” analysis that you describe, but generally only where there is more evidence of intent than common understanding in early America. Justice Scalia is more reluctant to consider intent, but will go along in a pinch. Of the two, he is the one who will chicken out when the historically accurate result would overturn too large of a precedent (he will never overturn Wickard v. Filburn, but Justice Thomas would love to do so).

    The originalist answer to the fair ruling question is that it is sometimes possible that the “right” answer is quite unfair. The Constitution once expressly protected slavery. Now that is terribly unfair, but no one can argue that it was improper to read the Constitution as such. The answer is not to “reinterpret” the words and claim that they mean something different than what their obvious meaning is. Instead, we must accept their fixed meaning, and pass an amendment to remedy the problem. And that we did, with the 13th Amendment.

    The same goes for abortion, gay marriage, euthanasia, etc. None of these rights existed by the common law, and none of them are protected by the Constitution, no matter how bad many people wish they were. If this is unjust, pass an amendment to remedy it, but don’t tell me that the text means something different today than what it did in the past. It might require a slightly different application, based on technology and other changes, but its meaning is the same.

    If we allow the Court to change the meaning of the Constitution, it is a matter of time before some terrible sequence of events results in 5 tyrannical judges taking control, and leading to some very heinous atrocities. That time will probably be measured in centuries, but no one in 1930 Germany saw what was coming either.

    If, however, the Constitution’s meaning is fixed in time to the period of the text’s enactment, then our protections are cemented in place forever, no matter how bad the judges who take control of the Court. We might lose a few perks in the meantime (implied rights), but we will have a baseline of freedom that can never be lowered.

    1. @Steve

      I want to agree with you. I REALLY do, race aside and all of these social flashpoints aside, something gnawing on my inside just can’t make that jump. It’s clearly true that when the Constitution needed some help, amendments were passed. Big thumbs up. But, perhaps my hang up is my constant comparison of the Constitution to the biblical text of Christianity. I guess it’s all about interpretation, and interpretation, is of course, subjective.

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