ORIGINALISM VS INTERPRETIVISM

Shoveling Old Words with Cloudy Meaning

We are seeing thousands of people wait in long lines at polling locations in early voting states. Their wait times are as long as eight hours. Terrible. I’m not sure why the Senate Judiciary Committee would decide to have a hearing to consider seating a Supreme Court nominee in the middle of a pandemic surrounded by all the election campaign noise, but let me guess.  Could it be political power?

Amy Coney Barrett, the nominee, has declared she is an “originalist” as it applies to Constitutional law. Okay, what exactly is that? According to many websites describing such things, originalism is a collection of theories calling for adherence to the “original intent” of the creators of the Constitution. Types of originalism include strict interpretation and strict constructionism. I CALL B.S.

Judge Amy Coney Barrett

Anyone, including Judge Barrett, who has the audacity to claim knowledge about the “original intent” of our founders like John Adams, George Washington and Thomas Jefferson is full of shit. One cannot speak with them to ascertain their thoughts and intents about anything they once wrote, so it’s all about personal interpretation.

Those good United States of America justices who over the years did their best to understand how our founders would have ruled on a challenge given contemporary circumstances, and then wrote opinions about how their decision should be applied to a changed society, were NOT ORIGINALISTS! Thanks to them, voting, serving on juries and being seated in Congress are no longer limited to white, landowning males. Despite the ORIGINAL words of our Constitution, women can vote, and African Americans are no longer counted as three-fifths of a person and subject to slavery.

I liked Antonin Scalia’s use of our language, although some of his “originalist” thinking was absurd. When dissenting passage of the Affordable Care Act, he offered this famous quote, “The Court’s next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state Exchanges.” Okay, we get it. Justice Scalia didn’t like Obamacare and he offered the shiny object of “jiggery-pokery” to distract us. Saying that the Act’s intention to help people with healthcare insurance was somehow “deceitful or dishonest behavior” is totally interpretive. He was not reading the original language in the Act. He was forcing his meaning onto the law and onto us, the people.

The Late Antonin Scalia

The idea of any Supreme Court justice reading 233-year-old decisions and understanding how their authors would apply them today is like reading the old Testament and deciding that any woman who was raped would be sent away into the desert. It’s like originalist doctors draining our blood with leeches when we had a cold. We can read what those in the past wrote, but we will never know what they were thinking or exactly what their words meant to them.

There are incredibly talented people in this world who can shovel words to convince you of just about anything. That’s how we got Trump. The fact that professional and learned constitutional law experts can achieve a lifelong position on the Supreme Court doesn’t mean they will be the best arbiters of conflict. Congress has the power to undo what they’ve done at the court, but those actions can then be challenged as unconstitutional. If Congress said the President of the United States was not permitted to wear makeup, that would be struck down. However, our current President has stolen budget money to build a wall on the border with Mexico. What gives him that right? Congress is supposed to decide where and how money is allocated. Where is the Court on this matter?

I cannot imagine Thomas Jefferson’s response should anyone have approached him with a plan to build a wall on the Mexican border. He might have said, “Why build a wall? We might be able to acquire that land for America.” Modern presidents believe everything is set in sand and old laws must be interpreted according to the current culture in which we live. Should originalists outlaw same sex marriage? Wouldn’t they be deciding the bigotry and small mindedness of our founding fathers was actually high moral ground? Remember, our founders laughed and looked away from gay people. The also looked away from Black people, but that didn’t stop them from buying them into slavery. How can these original transgressions possibly be worthy of continuing?

Amy Coney Barrett is just the latest pawn in the sick game of a set of elite humans determining the rights of lessor citizens. Don’t get me wrong. I buy into the system, but the process of analyzing words, phrases and meanings is serious business. People are funny. Most of yesterday’s social media complaints about nominee Barrett concerned her terrible speaking voice. That’s not to say the notorious Ruth Bader Ginsburg had a theatrical tone, but her views were 180 degrees away from Amy Coney Barrett. My thinking is Justice Ginsberg, if alive, might suggest to Judge Amy, “You seem to think you know the answers, but are refusing to give straight answers. Good luck!”

Judge Barrett’s writings indicate she opposes any controls or rules on gun ownership and thinks Roe V. Wade was wrongly decided. Barrett signed a full page ad that said Roe V. Wade was wrong. That was a commitment. She will force her viewpoints on the Court. That is what originalists do. They hide behind dusty word while they put their thumb on the scale moving us toward a more conservative, backward and locked viewpoint. When they use flowery words, we must question their bias.

The Late Great RBG

I find it outrageous to think that any social program passed by Congress with the aim of helping the disadvantaged and maligned minorities is unconstitutional. If you read the Constitution, you will find no mention of taxation being against the law. There is nothing in that document that stipulates the kind of healthcare a citizen must buy. It’s insane that a judge in any court would strike down a mandate by a governor to protect his or her state’s citizens. The attitude of those judges who believe one politician’s goals or rules for safety are different than those of a more conservative bent is ridiculous. They believed an unhinged President about some bizarre invasion coming from Mexico, yet then looked the other way when hundreds of thousands of people were dying. Who are these originalists? Until the aged justices retire or die, get ready for decades of anal retentive, religiously corrupt and politically motivated decisions from the Supreme Court. Once we’re rid of them, we’ll have a rebirth of intelligent interpretation and forward movement. As we have painfully learned, you never now when the next one will pass away or pass out.

The book that tells it like it is…

Gold, God, Guns & Goofballs: If you only read one chapter of this book, try “Take a Knee for America” and think about our never-ending conflicts between minorities and the police. I’m not asking you to take a stand but having a deep and honest conversation about why some people think the way they do would be productive. This is a book for the moment which seeks to start a conservation about peace. And if you are worried about social media, you really should check out the chapter called “Social Media Menace.”

Get the Kindle Version HERE. Or order your paperback edition HERE.

One thought on “ORIGINALISM VS INTERPRETIVISM

  1. The Constitution provides a framework for government, but I cannot think that those who wrote it believed life, and the world, would never change AGAIN. If they could shape a country out of a loose affiliation of colonies, they had to have known there would be other unforeseen and “unlikely” developments in the years ahead. If they trusted themselves to set the United States in motion, we have to believe they also trusted the future. They fashioned a document that freed us to apply our basic principles to what lie ahead. To view the Constitution as a static document ducks our responsibility to our forefathers to build and protect the republic. Originalism allows its adherents to hide in the shadows and fear their fellow man. Yes, the Constitution can be amended — a thoughtful and lengthy process I would not change. But as a nation, we need to be able to apply our standards to situations as they are now — and trust one another enough to do it. Anything else is trying to roll back time. That never works.

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