Original intent

Jim Still, over at http://secularoutpost.blogspot.com/, has offered a surrejoinder to my rejoinder. Among other things, he says the following:

“It is true that I am implicitly considering the Constitution to be a living document. I know that there are strict constructionists out there like Scalia who deny that the document should have any meaning other than what the original framers intended. But if that were so and our founding document did not evolve along with our progressing society, then we’d be forced to admit that human slavery, a woman’s right to vote, and other such norms of the eighteenth century should be legal today. I think the framer’s were wise enough to know that the Constitution would need to be durable and flexible enough to provide guidance for issues they could not possibly have anticipated in their day. Or at least I want to give them credit for such foresight.

Steve also suggests that the Establishment Clause should be narrowly understood as a prohibition against the federal government from “meddling in the internal religious affairs of the states” by establishing a national Church. Rather than say whether I agree or disagree with that argument I think it would be more fruitful merely to point out that since Everson v. Board of Education (1947) the Supreme Court has consistently held that the states are not free to establish religion. At this point stare decisis (that new term I’ve learned since watching the Sam Alito hearings) has pretty much settled the matter. We’re just not going to go back to those halcyon days of the one-room schoolhouse where a pupil either recited a Christian prayer or was kicked out of school. So maybe it’s best if we all accept that fact and move on.”

By way of reply:

i) The Constitution is a historical document, a document from the past, an 18C document. To that extent it is frozen in the past, the same way that Homer and Dante and Shakespeare are frozen in the past.

The framers did not foresee contemporary contingencies. Hence, it’s an exercise in make-believe to “discover” newly-minted rights in the Constitution.

ii) This doesn’t mean that we’re trapped in the past. To begin with, the framers did provide a mechanism for updating the Constitution, and that is the process of amending the Constitution.

Still talks about suffrage and slavery. Slavery was not abolished by a creative reinterpretation of the Constitution, but by amending the Constitution. Women’s suffrage was not enacted by a creative reinterpretation of the Constitution, but by amending the Constitution.

iii) In addition, we have the legislative process as well as popular referenda.

iv) The reason that liberals have turned to the courts is to impose social policies that lack popular support.

v) Any historical text means what it meant at the time it was written. For example, when I interpret Dante, I construe his poem consistent with his medieval outlook. I don’t subscribe to Thomism or Aristotelian physics or Ptolemaic astronomy, but for purposes of understanding the text, that antiquated framework supplies the interpretive grid. I don’t reinterpret Dante in light of process theology and string theory.

vi) By bringing up examples of suffrage and slavery, Still is positing an outcome-based jurisprudence in which you first specify the desired result, then pretend to construct a textual trajectory from the Constitution to your preferred outcome. This has reached the point where the more liberal members of the court are now “interpreting” the Constitution in light of international law. There are several problems with such tactics:

vii) Everyone can see that it’s a legal fiction. You are imputing to the text a meaning that it doesn’t carry, and yet you continue to affect the pretence of Constitutional authority for your results.

It’s an argument from authority, yet the authority-source does not, in fact, authorize that result. This is coming from the judge, not the text.

Why should we be expected to submit to this game of pretend? If everyone knows it’s playing-acting, if no intelligent individual is taking in by the ruse, why keep up appearances?

viii) Judicial activism cuts both ways. It can be deployed to impose left-wing policies by judicial fiat, but it can also be deployed to impose right-wing policies by judicial fiat. In fact, that’s what happened during the FDR administration, when SCOTUS was striking down New Deal legislation as socialistic.

ix) It also means that the party in power gets out of the habit of having to justify its policies by reasoned argument.

This is one reason that liberals are losing the debate. Instead of making a case for abortion, they simply say that women have a Constitutional right to an abortion, and they defend that right by appeal to a “super-duper” precedent. But this is just a legal gimmick. By abandoning the politics of persuasion, and resorting to the courts, liberals lose the argument since they no longer put up any arguments for their position. And this will cost them at the ballot box.

x) It also confounds a legal right with a Constitutional right. Not all legal rights need to be enshrined in the Constitution. We do have Congress. And we do have state legislatures. We do have popular referenda.

To say that a woman has a Constitutional right to an abortion, otherwise we revert to the bad old days of the back alley abortion, is simply a non sequitur. Even if there’s a need for abortion, how does that make it a Constitutional right? Why must all legal rights be Constitutional rights?

xi) Apropos (x), it further confounds a legal right with what is right. A liberal can believe that abortion is morally right, and also believe that a woman should enjoy legal access to abortion, without thereby feigning that our US Constitution speaks to this issue—especially when everyone can see that the Constitution is simply silent on the matter.

Just because I think something is right doesn’t make it Constitutional. To say that something is a Constitutional right because dire consequences would ensure if it were not a Constitutional right is quite illogical.

Many things are right or wrong irrespective of the Constitution. The fact that something ought to be a right doesn’t make it a Constitutional right. This is childish reasoning. Yet it’s the appeal we hear all the time to justify judicial activism.

xii) The primacy of original intent is ideologically neutral. It doesn’t favor conservatives over liberals, or vice versa.

xiii) It may be true that with Everson v. Board of Education and subsequent rulings, we turned a corner on the status quo ante, and there’s no going back.

And yet, if judicial activism is the norm, then whatever the high court giveth, it can taketh away. It only takes five votes. That’s why Congressional hearings have become so contentious for judicial nominees. It’s a high stakes game. Control of SCOTUS is the big casino.