Sunday, October 09, 2005
Originalism
Dr. Richard Land of the Southern Baptist Convention was on Meet the Press this morning defending the Harriet Miers nomination. In the midst of one comment, he alluded to the need of having someone on the Court who would be a strict constructionist and rule according to original intent. This is a bit like saying one should worship Jesus Christ as our Lord and Savior and follow the teachings of Muhammed.
Strict constructionism is a very narrow reading of the Constitution that would forbid one from interpreting the Constitution beyond the literal words of the Constitution. An originalist interpretation allows one to go beyond the written word to understand the original context of the Constitutional text. The former interpretation makes it much more difficult for the written document to remain relevant in modern times, while the latter is a more organic approach that provides for more flexibility while also canalizing the Constitution.
The originalist interpretation is a broad reading, but it is not designed so as to allow people to interpret the Contitution without some reference to a fixed meaning. It is not meant as a method of "legislating from the bench." Rather, it ought to be the preferred method of any conservative who believes the Constitution is a permanent document enshrining our rights into law. Some historical perspective is needed to elaborate.
It was Thomas Jefferson who advocated a strict interpretation. Jefferson believed that the government contained no powers that were not specifically laid out in the written text. Jefferson had even penned a constitutional amendment in the wake of the Louisiana Purchase because he felt that the Constitution provided no means by which the federal government could make such a territorial purchase. But behind Jefferson's strict construction lay a belief that the Constitution was a temporary document. Each generation should have the power to change the Constitution for no generation had the power to bind future ones. Under his plan, a new constitution would be introduced every 20 years. This was an essentially democratic approach because it would allow each new generation to form a constitution to its unique desires.
The Federalist approach, highlighted by John Marshall, was quite different. A strict interpretation would suffocate the Constitution. If the Constitution was to survive beyond the present generation it would have to be somewhat adaptable. Therefore the proper reading is a broad one that weighs the original intent behind the written word.
In the current debate, original intent and original meaning are even further subdivisions of this approach. At this point, I'll use the simple definitions from Wikipedia to explain:
At any rate, this is all a long-winded way of saying that I do wish conservatives would stop saying that justices should be strict constructionist, unless of course they actually do have such a desrire - but beware that such an approach fits in with a liberal mentality rather than a conservative one.
One last note. In response to some quotations of conservatives critical of the Miers nomination, Dr. Land echoed Ed Gillespie by saying that this had a "whiff of elitism."
STOP IT ALREADY. I am tired of Miers' supporters trotting out these red herrings and straw men. If you can't address the substance of the arguments being made against her, maybe it's a sign that your position is weak. So enough already with this silly "elitism" charge. And, again, since when has conservatism been anti-elitist? Oh, that's right, when we decided that sounding like William Jennings Bryan was somehow authentic to American tradition. I'll let these other "conservatives" echo Bryan, I'll stick with my Burke.
Strict constructionism is a very narrow reading of the Constitution that would forbid one from interpreting the Constitution beyond the literal words of the Constitution. An originalist interpretation allows one to go beyond the written word to understand the original context of the Constitutional text. The former interpretation makes it much more difficult for the written document to remain relevant in modern times, while the latter is a more organic approach that provides for more flexibility while also canalizing the Constitution.
The originalist interpretation is a broad reading, but it is not designed so as to allow people to interpret the Contitution without some reference to a fixed meaning. It is not meant as a method of "legislating from the bench." Rather, it ought to be the preferred method of any conservative who believes the Constitution is a permanent document enshrining our rights into law. Some historical perspective is needed to elaborate.
It was Thomas Jefferson who advocated a strict interpretation. Jefferson believed that the government contained no powers that were not specifically laid out in the written text. Jefferson had even penned a constitutional amendment in the wake of the Louisiana Purchase because he felt that the Constitution provided no means by which the federal government could make such a territorial purchase. But behind Jefferson's strict construction lay a belief that the Constitution was a temporary document. Each generation should have the power to change the Constitution for no generation had the power to bind future ones. Under his plan, a new constitution would be introduced every 20 years. This was an essentially democratic approach because it would allow each new generation to form a constitution to its unique desires.
The Federalist approach, highlighted by John Marshall, was quite different. A strict interpretation would suffocate the Constitution. If the Constitution was to survive beyond the present generation it would have to be somewhat adaptable. Therefore the proper reading is a broad one that weighs the original intent behind the written word.
In the current debate, original intent and original meaning are even further subdivisions of this approach. At this point, I'll use the simple definitions from Wikipedia to explain:
The term originalism refers to two distinctly different ideas: One version, known as original intent, is the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it. The other version, known as original meaning, or textualism, is the view that interpretation of a written constitution should be based on what it would commonly have been understood to mean by reasonable persons living at the time of its ratification.A more detailed explanation follows on the site. Wikipedia mentions a fact seldom appreciated by Court followers, and that is Thomas and Scalia do not share the same approach. Thomas is in the original intent camp, while Scalia falls in the "original meaning" camp. Thus saying that someone should be or is in the mold of Thomas and Scalia is misleading. Both, of course, would reject any interpretation of the Constitution that falls well outside of the Constitution itself, thus they are natural allies against those who would use the 14th Amendment as a basis for substantive due process, or those who use "penumbras and emanations" from the Constitution as justification for declaring state laws against abortion unconstitutional. Nonetheless, these differences in approach are not insignificant. Thomas is much more likely than Scalia to overturn precedent, though this might have more to do with temprament than their respective approaches.
At any rate, this is all a long-winded way of saying that I do wish conservatives would stop saying that justices should be strict constructionist, unless of course they actually do have such a desrire - but beware that such an approach fits in with a liberal mentality rather than a conservative one.
One last note. In response to some quotations of conservatives critical of the Miers nomination, Dr. Land echoed Ed Gillespie by saying that this had a "whiff of elitism."
STOP IT ALREADY. I am tired of Miers' supporters trotting out these red herrings and straw men. If you can't address the substance of the arguments being made against her, maybe it's a sign that your position is weak. So enough already with this silly "elitism" charge. And, again, since when has conservatism been anti-elitist? Oh, that's right, when we decided that sounding like William Jennings Bryan was somehow authentic to American tradition. I'll let these other "conservatives" echo Bryan, I'll stick with my Burke.
# posted by Paul Zummo : 10:18 AM
