Originalist-shmoriginalist! – I’m tired of hearing about it already!
President Donald Trump’s Supreme Court nominee, Judge Amy Coney Barrett, has made it clear that she wants to be like her mentor, the late Justice Antonin Scalia, also an originalist. That means she’ll use people long dead as an excuse for her “conservative” agenda on the bench.
This week she told us what an originalist is: “that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”
But originalists ignore that the Constitution was created for future generations as well, and that it was meant to be updated, and that doesn’t mean only through amendments, but interpretation, because the founding fathers didn’t consider themselves to be infallible and they knew times change.
Don’t take my word for it. Here’s some of what George Washington, who was president of the Constitutional Convention of 1787, wrote to Henry Knox 233 years ago this week (Oct. 15, 1787). This is long but anyone who believes the intent of our founding fathers is SOOOO important should read it:
The Constitution is now before the judgment seat. – It has, as was expected, its advisaries, and its supporters, which will preponderate is yet to be decided. – The former, it is probable, will be most active, because the Major part of them it is to be feared will be governed by sinester and self important considerations on which no arguments will work conviction – the opposition from another class of them (if they are men of reflection, information and candour) may perhaps subside on the solution of the following plain, but important questions. 1. Is the Constitution which is submitted by the Convention preferable to the government (if it can be called one) under which we now live? – 2. Is it probable that more confidence will, at this time, be placed in another Convention (should the experiment be tried) than was given to the last? and is it likely that there would be a better agreement in it? 3. Is there not a Constitutional door open for alterations and amendments; & is it not probable that real defects will be as readily discovered after, as before, trial? and will not posterity be as ready to apply the remedy as ourselves, if there is occasion for it, when the mode is provided? – To think otherwise will, in my judgment, be ascribing more of the amor patria – more wisdom – and more foresight to ourselves, than I conceive we are entitled to.
Interpretation: ‘Let’s get this thing done because we’re not going to come up with anything better, and we don’t want those other jerks to come up with something worse. It’s not the gospel, and we need to trust future generations to fix whatever’s wrong with it. They’ll be just as capable as we are.’
Notes taken by James Madison, the Father of the Constitution, allow us to read what Benjamin Franklin said at the Constitutional Convention in September, 1787 while pleading with everyone to approve of the Constitution:
I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error.
No need to interpret anything there. If justices REALLY want to be originalists they should get into the head of Thomas Jefferson. He hated justices were appointed for life, and that the Supreme Court gave itself the power to determine whether things the other branches of government do are Constitutional or not. He wrote this in a letter to William C. Jarvis in 1820:
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
Donna F. Edwards is not a founding father. She’s a lawyer, a columnist, and former U.S. Representative of Maryland’s 4th Congressional District. She’s also an African American. What she had to say this week was pretty important, too. I re-tweeted it:
My 3/5ths of a person self is not fond of originalism, just sayin’.
Steve Gillespie is editor of The Daily Press. Email him at email@example.com.