In this story we will briefly explore why originalism is complete BS. [At the end we will hear from Sir Matthew Hale, creator of the ‘marital rape exemption’ 350 years ago, who was cited in the Dobbs decision. Stayed tuned.]
Originalist theory asserts that
Justice Antonin Scalia believed that the US Constitution could only be interpreted based on the intent of the Framers of the Constitutions, and the common understanding of the original text at the time it was written. Scalia said, “The only good Constitution is a dead Constitution.” It should not change from the original intent of the Framers of the Constitution unless it is amended.
What are the implications of Scalia’s originalist theory? And how can we determine the intent of the Framers?
There were 55 people who attended the Constitutional Convention in Philadelphia in 1787. Even hard core originalists have conceded that nailing down the intended meaning of those 55 Framers is an impossible task. The reason is that this most American document ever was not created by perfect humans. It was the product of fierce debates. However, they worked hard to build a consensus, even trying for unanimity. They knew they would need it in order for it to be ratified.
The Framers achieved their goal. 39 of the 55 framers who actually attended the convention signed. Three refused to sign it because it did not have a bill of rights. The rest had other reasons, such as illness, absence on diplomatic missions, or disagreement with the final result.
That quest for unanimity meant that some of the phrases were DELIBERATELY VAGUE. The Framers knew that being more specific would destroy the consensus that they would need in order to get it ratified. Trying to assign a specific meaning to a 238 year old document is a difficult proposition.
But wait, there’s another reason the ‘intent of the Framers’ cannot be used.
The framers of the Constitution spent a great deal of time deciding how their proposal would be ratified. Their answer came from the first three words of the proposed Constitution itself, “We the people”. They decided to go OVER THE HEADS OF EXISTING INSTITUTIONS, like the Confederation Congress and the state legislatures, right to the people and charge individual state conventions with a yea or nay vote on the proposed Constitution.
Ratification was the real decision point.
Jack Rakove says in “Original Meanings” that James Madison stated a key point in 1796, when he argued that questions about the meaning of the Constitution could be answered not by consulting the intentions of the Framers at Philadelphia, but rather in the light of the debates over ratification.
“Whatever veneration might be entertained for the body of men who formed our Constitution,” he told the House of Representatives, “the sense of that body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.”
The total of all the delegates in the state Constitution ratification conventions amounted to > 1500 people. How could anyone know how these 1500 people understood the meaning of the Constitution? That’s an impossible task.
So, originalists have mostly moved on from determining the original intent of the Framers and now focus more on the historic public understanding of the TEXT of the Constitution at the time it was written.
Originalist judges have decided to become historians and define the generally accepted meaning of the text of the Constitution at the time it was written. This is the height of arrogance. I’m no historian, but I know that being one is a full-time job. Nobody whose day job is being a SCOTUS justice has time to research the meaning of some text that was written 238 years ago by 55 people in a hot, enclosed room. All they can do is CHERRY PICK DATA from a multitude of references and use those them to confirm their pre-conceived bias.
Still skeptical? Check out the Dobbs decision where the court cites English jurist Sir Matthew Hale—a known witch-hunter who tried and executed two women as witches—as an authority on modern law.
“Hale perfectly exemplifies the dangers posed by unrestricted cherry-picking of law; by establishing his legal scholarship as part of the “history and tradition” of the United States, the Court is opening the door to a tacit approval of his other assertions. When the Court calls him a brilliant legal mind almost 350 years after his death (and an ocean away), it gives him an inappropriate level of authority over the bodily autonomy of modern people.”
So, there you have it. Determining:
- The ‘intent of the Framers’
- The understanding of the ratifiers, and
- The meaning of the text
Of the Constitution are all very difficult, and anyone that tries to convince you otherwise is either fooling themselves or trying to fool you.
