Skip to comments.Originalism is at war with America
Posted on 08/29/2018 3:11:58 PM PDT by yesthatjallen
President Trump is nominating federal judges, and Supreme Court Justices such as Judge Brett Kavanaugh, who claim to be committed to originalism. This approach to constitutional law requires that the Constitution be interpreted to mean today what the text was intended or understood to mean at the time it was written. But originalism conflicts sharply with American reality and American ideals.
Years ago, Frank Sinatra sang a song about what America meant to him. The last line was But especially the people, thats America to me. If thats what America is, then originalism is unamerican. Because there is no place for the over 300 million Americans today in originalist interpretations of constitutional law. We just dont count.
Who does count? Only the people who were here in the 1780s and 90s or when specific constitutional amendments were adopted. The vast new diversity of the American people today has nothing to offer to our political foundations.
Both originalists and non-originalists look to American history to interpret the Constitution. But to originalists, most of that history stops 230 years ago. The American constitutional story largely begins and ends on the first page. To non-originalists, American constitutional law, like America itself, is a story that never ends.
The key issue separating originalists and non-originalists is what to do with all of the rest of American history after the Constitution was ratified. When courts interpret the Constitution, just how much weight should be assigned to the collective experience of the American people over the last 230 years. The originalist answer is none or as little as possible. What matters most is what judges decide constitutional language meant over two centuries ago.
Put bluntly, this originalist commitment to a constitution frozen in time and divorced from the changes America has undergone over the centuries repudiates the core values of the American experience.
Think about what is distinctive and special about America. European governments were chained to centuries of history and tradition. That was the old world. America is the new world. We are the pragmatists, the experimenters. We try things out and continue what works and discard what doesnt. We do that with everything including law. But thats not the America of originalists. From their perspective, constitutional law is fixed and immutable. It cannot evolve. Judges cannot learn from American experience.
Non-originalists believe that the American people have worked with constitutional law for over two centuries. We learned a lot. We struggled to create constitutional doctrine that reflects who we actually are as a people, not some ideologically manipulated picture of who a few judges think we once were.
Unlike originalists, non-originalists recognize that the Constitution must take account of the changed understanding in our society of the status and rights of women. Accordingly, privacy and autonomy rights including the right to access to medical contraceptives must be protected and gender discriminatory laws must be subjected to rigorous scrutiny.
Unlike originalists, non-originalists understand how much our society has learned over time about the LGBT community. Because they are no longer in hiding in response to persecution, we can now see our gay and lesbian family members, friends, neighbors, co-congregants, and colleagues as people with the same needs and rights as the rest of us. At the constitutional level, this means that laws criminalizing sodomy or prohibiting same-sex couples from marrying must be struck down.
Unlike originalists, non-originalists have learned that democracy needs constitutional protection against political threats the framers may have under-estimated or ignored. Courts cannot close their eyes to elections being manipulated through burdens on voting and gerrymandered districts. The Constitution must be interpreted to protect voting as a fundamental right and to insist, at a minimum, that election districts must be of equal size and reflect the principle of one person, one vote.
Put simply, non-originalists believe that constitutional case law is a process grounded in the on-going experience of the American people. Older decisions can be challenged because of their real world consequences. Non-originalist judges may make mistakes. When that happens, eventually the wrongfully decided cases are overruled. Constitutional law does not become permanent unless it works, unless it resonates with the beliefs of the American people overtime.
Originalists believe that history has an iron grip on constitutional meaning. The great constitutional questions of the day turn on lawyers debating what people understood centuries ago, not on the needs of Americans today and the values we have forged over centuries of struggle.
Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and serves on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.
Apparently we should argue Constitutional law based on popular consensus of the day.
If we get it wrong, it will all simply 'self-correct'.
How can we have Presidents who are “citizens of the world” if we restricted the office to just natural born citizens, born here of citizen parents?
Anwar al-Awlaki’s kids deserve the same right to run as Ted Cruz.
His demented NWO America, not ours.
Brown-stain is just another addled opinionist at The Hill.
The Hill is a complete cesspool of leftist opinion.
The author is a fool that deserves derision.
The Constitution has been amended with at least 26 changes through the decades...nearly 1 for every decade.
The author is actually arguing to disregard the Constitution in favor of direct democracy.
Over my dead body.
“But originalism conflicts sharply with American reality and American ideals. Years ago, Frank Sinatra sang a song about what America meant to him. The last line was But especially the people, thats America to me.
Who needs the Founders when youve got Frank?
Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law.
This law school should be burned to the ground and this professor driven naked into the wilderness.
Pure idiocy. Originalists believe that the Constitution should be changed only according to the rules that were established for changing the Constitution. “Non-originalists” believe that unelected judges should be able to change the Constitution whenever they see fit.
If “originalism” is so bad, then let’s try this:
Stop defining socialism by the socialism of the 19th and 20th century. It was a horrible failure. 30 times worse than the Black Plague! People have mobility and education today. If they can’t find work, they should move to where the work is. If they lack skills, they should work to gain skills.
We don’t need socialism to mean “free health care” or free anything. The NEW (non-”originalist”)socialism is that all people understand that they must work for what they have. The more they produce, the more benefit to society. When you are successful and prosperous on your own, then society benefits. So, the NEW socialism is to get a job, work, buy your own health care, pay for your own kids’ education, pay your bills on time, and be equipped to join the militia—because nothing is more social than being willing to kill some tyrants with your neighbors!
You think they would cheer for ditching THAT kind of “originalism”?
disclaimer: some idiot will interpret this as me advocating socialism. I am not.
Really, if you don't have originalism, you don't have anything.
More likely in favor of judge-made law.
That's it in a nutshell.
Firstly the Founders intended that the Constitution would be hard to change and would not be interpreted by “Fashionable Opinion”. If it can be easily changed by some judge inventing some new meaning for a word or phrase in the Constitution then it is no longer a Constitution. The Founders put in place two mechanisms to change the constitution both of which require the informed consent of the people. Having judges stick their fingers in the current social or political wind to reinvent the constitution was never intended by the Founders and should be resisted at all costs.
IOW, remove meaning from words and go by feelings.
That would be fun.
Give them enough time, and these leftists will be living in huts and peeing in their own drinking water.
“But originalism conflicts sharply with American reality and American ideals.”
The author is wrong specifically because (a) originalism does not stop at any point in time, and (b) as far as what the Constitution does and not mandate is found across and into all its amendments up to and inlcuding moddern times and (c) it sets squarely with the Constitutional structure for “updating” the Constitution, which the Constitution spells out as via the amednment process and not through mere judicial dictates.
Originalism honors and respects the facts inheremt in the first words of the Constitution, which say “We the people”, not “we the courts” and which in every way implies it is the people, acting through our legislators, state and federal, not judges, that are the only authors of the Constitution recognized by the Constitution.
Of course I would not expect someone like the author well indoctrinated by the Leftists to get either originalism or the Constitution correct.
The liberals' ideal is something like a cable company contract that says "the company can make any modifications to this contract it desires so long as it gives you ten days notice". And, unlike the cable contract, you aren't allowed to cancel and leave.
The Constitution is immutable.
That’s what I thought before the Kenyanesian Usurpation.
It remains to be seen if we survive that.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.