A Humble Defense of the Constitution
The occasion of any Supreme Court nomination seems to bring up the same argument
between those who opt for an "originalist" reading of the Constitution that says,
on one side, there is no Constitutional remedy for issues not explicitly addressed
in that document and, on the other side, those who favor an interpretation that
respects the document's original intent and content while interpreting and applying
it in light of the nation's evolving history.
The argument comes up again now with the appointment of Neil Gorsuch to the Supreme
Court, who, despite his refusal to answer questions during his Senate hearing, is known
to be a Constitutional originalist and a strict constructionist.
Welcome to the 17th Century
If we were to interpret the Constitution as originalists suggest, Women would
still be chattel, prohibited from inheriting property or gaining custody of
their children in the event of divorce. People of color
would still be sitting at separate lunch counters, attending segregated schools, and
prevented from voting (which, at the rate the Supreme Court is dismantling affirmative
action and other civil rights protections, we may yet see again).
According to the originalist position, the founding fathers (white men to a man, note)
had, with such unerring and infallible wisdom, envisioned the challenges that would
face the young Republic that not a jot nor twittle can be added to it or changed.
This intellectual position holds much in common with
those who adhere to a literalist interpretation of the Bible as divine writ (at least, when
it suits their purposes, as there are many things the Bible says we must
do and mustn't to which even the most fundamentalist Christian doesn't adhere today -
not even a notoriously devout Catholic like Justice Gorsuch).
Whether it's a literalist interpretation of Sacred Scripture or an originalist
interpretation of the US Constitution, those who cling to these positions object
to any characterization of either as "living documents" meant to be applied,
according to principles articulated in said documents, to gnarly situations the
framers could not possibly have envisioned. As relates to the Constitution,
this means, for the originalists, that if an issue isn't explicitly addressed in
the Constitution, the federal government may not act upon it. If the Constitution
doesn't specifically say that gay people have the same Constitutionally guaranteed
rights as heterosexuals, then they don't.
Aligned with originalism in the Federalist Society is a particular view of the structure
of the federal government. It is a rather odd - and, for a jurist,
self-serving - reading of what has come to be known as "checks and balances."
Instead of a more traditional understanding of checks and balances that has
the three branches of government having a jointly shared responsibility to place
appropriate limits on each other, the structuralist
position, held by Gorsuch and others, says that it's the special Constitutional
responsibility of the judiciary
to keep Congress and the President from coloring outside the lines - and to smack
them down if they do. Carried to its illogical conclusion, this would mean
that neither the executive branch nor the legislative branch could do anything at all
that wasn't explicitly authorized in the Constitution - and authorized not by analogy or
logical extension but by strict and specific Constitutional mention. Paired with originalism,
this structuralist ideology giving preeminence to the courts would, if it prevails,
constitute a bulwark against socio-political progress and leave us with not
a tricameral government but a judicial oligarchy.
The Best Argument Against Originalism Is the Constitution Itself
Strict Constitutional originalism can be debunked
with one Constitutional word: Amendments. Constitutional Amendments (which, are,
by the way, provided for in the main body of the Constitution itself) are a
specific remedy for what the founding
fathers did not envision. These Amendments have, by definition of the term,
expanded the original thinking behind the Constitution by making certain rights,
such as the right to vote, explicit for people about whom the framers,
by virtue of their culture and time, may have had
"a blind spot" - you know, folks like women and people of color. It is well worth
noting that many of the Constitutional Amendments were derived centuries after the
original document was conceived. Amendments are the strongest and most rational
argument against an originalist interpretation of the Constitution.
Moreover, at least one of these Constitutional Amendments - the alcohol prohibition
amendment - was itself subsequently overturned, further undermining the claim that
Constitutional relevance is set in amber.
The argument from Amendment is, however, a double-edged sword. Amendments that have
survived have always been used to clarify and protect rights of vulnerable minorities, not to take
rights away. That is essentially why the prohibition amendment ultimately failed, and
it is why an anti-abortion Amendment or a so-called defense of marriage Amendment are also
destined to fail. The Republic must be ever vigilant against Amendment initiatives
that seek to deprive groups of Americans of their human and civil rights - even if
the right in question is only as frivolous as the right to consume alcohol.