sonora2sonoma

Originalism, in the context of the interpretation of the Constitution, is the belief that the text of the Constitution should be given the original public meaning it had at the time of its writing. The immediate problem with such an approach is, because many of the issues that confront the world of the 21^st century did not exist in the 19^th century when the document was written, the originalist approach doesn’t reflect the current reality.

The ‘living constitutional theory,’ on the other hand, purports that “the legal content of constitutional doctrine does and should change in response to changing circumstances and values.” *  This approach recognizes the dynamic, changing nature of a society as it evolves over time and was the approach taken by Ruth Bader Ginsburg in her tenure on the Supreme Court.  

Those who, like the members of the Federalist Society—to which Amy Cony Barrett, the nominee proposed to fill the Supreme Court seat vacated by the death of Rut Bader Ginsburg, is closely affiliated—oppose the interpretation of the Constitution put forward by the advocates of the living constitutional theory, seek to label the latter as ‘judicial activists’ and characterize their efforts as attempts to ‘legislate from the bench.’

How can it be, since both approaches are essentially interpretations of what the authors of the Constitution intended when they crafted the document, that these so-called ‘judicial activists’ are ‘legislating from the bench’ while those of the originalist persuasion are not? Both approaches require the interpretation of the text of the Constitution, both require a parsing of the words contained therein. The only substantive difference between the two concerns the respective legal philosophies, the leanings, of those doing the interpreting—one side is conservative-leaning, veering into abstract legal distinctions that have been surgically removed from the real concerns of real people, while the other tends more toward moderate-liberalism, informed more by humanistic concerns than by sterile legal jargon.

Additionally, the very notion that originalists possess some exclusive “window” into the minds of the crafters of the Constitution implies a lack of self-awareness on the part of those holding that view, as well as a hubris of immense proportions.

The authors of the Constitution were people of an 18^th century mindset, possessed of an understanding and worldview commensurate with their times. Many of the currents running through the social discourse of the 21^st century—birth control and equal rights, to just name two—were absent from the dialogue of that time, while others—matters such as gay rights, transgender/gender neutral concerns and fetal tissue research—would have fallen  so completely outside the purview of an 18^th century person as to have exceeded their ability to comprehend them at all, much less enable them to foresee the need to devise the Constitutional framework necessary for the judicial rendering of such questions.  

How, then, can originalist-minded justices be expected to render wise decisions that adequately and fairly address 21^st century issues while stuck in an 18^th century mindset? They cannot! The only way the Constitution can remain relevant to the times in which we live, as well as persist so into the future, is by viewing it as a dynamic document capable of reinterpretations befitting the times in which the decisions are rendered.

Such is how the Constitution was conceived and such is how it was intended by its framers, who devised a document pertinent to their times and designed to address the particular issues and needs relevant to their times. It was never intended to be enshrined like a holy object, considered inviolate and rendered incapable thereby of maintaining relevance in order to accommodate the vagaries of time and changing circumstance.

To resort to a foolish analogy to illustrate the foolishness inherent in such myopic thinking, if the medical profession was guided by originalist thinking, none of the advances in medicine that have occurred since the republic’s founding would be deemed acceptable for inclusion in today’s treatment regimens.   

Such efforts to turn back the clock have and will always be similarly myopic. As Henry Ford once so inelegantly observed, “those who attempt to sit on the lid of progress will eventually be blown off.”

In the long run, history will prove, one way or another, the price paid for such extreme and self-defeating attempts to maintain control over the course of events as those put forth by the originalists and others of like persuasion.

For the Supreme Court to retain relevance, it must be capable of rising above the seductive allure of politics, and also resist deference to religious influence, the former, in particular, being something those who profess to believe in originalism, to their peril, have yet to grasp.  And, because not enough of us members of the electorate have been paying adequate attention in our electoral choices for far too many election cycles at this point, to our peril too.

Tim Konrad

2020.10.02

* lsolum.typepad.com/legal_theory_lexicon/2017/05/legal-theory-lexicon …