Jill Lepore is one of my favorite historians. My husband and I read her book “These Truths” a couple of years ago, and were impressed by her ability to convey the results of deep scholarship in accessible language.
Last October, Lepore published an essay in the Atlantic in which she demolished the incredibly dishonest judicial doctrine known as Originalism. The points she made in that essay have only become more relevant, as Americans struggle to recover the actual philosophy of our country from a corrupt administration and an equally unethical Court.
Lepore points out that the philosophy of amendment–of constitutional change–is foundational to our system.
It has structured American constitutional and political development for more than two centuries. It has done so in a distinctive, halting pattern of progression and regression: Constitutional change by way of formal amendment has alternated with judicial interpretation, in the form of opinions issued by the U.S. Supreme Court, as a means of constitutional revision.
It’s a pattern that has provided what Lepore calls “constitutional stability,” unlike the approach to constitutional interpretation that we call originalism. That approach was first proposed by Robert Bork, who maintained that the only way to read the Constitution is to determine the original intentions of its Framers, and that every other method of interpretation is really amendment by the judiciary. Scalia adopted Bork’s approach and brought it to the Court, “trapping the Constitution in a wildly distorted account of the American past.”
Amending the U.S. constitution is a heavy lift, despite the convictions of Founders like Jefferson, who famously believed that each generation was obliged to rewrite its constitution to reflect changing times, and that a constitution belongs to the living, not the dead. (In a letter to Samuel Kercheval, Jefferson wrote that “Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.”)
Lepore addresses the significant defects of the “originalism” peddled by Bork and Scalia, and her essay is accurate and enlightening. But there is a better sort of “originalism” available to us–one more consistent with Jefferson’s observations and the needs of modern society.
When I taught, I introduced the concept of “original intent” by asking students what James Madison thought about porn on the Internet. Obviously, James Madison never contemplated an Internet (and who knows what porn looked like in his day), but he did have firm convictions about the importance of free expression and the deleterious effects of government censorship. Original intent, properly understood, requires courts to protect the principle that government ought not be able to decide which ideas may be communicated.
It is impossible to define original intent as Scalia did— as limited to what was in the minds of the Founders at the time they drafted the Constitution. But we definitely can and should defend the principles and values that the Founders were intent upon protecting.
The value of free expression. The value of religious liberty. The importance of separating Church from State. The value of individual autonomy (aka privacy), and one’s right to be “secure” in one’s papers and effects. The values of due process and equal protection.
The values that the Founders protected in the Constitution and the Bill of Rights are clear, even if their application in many modern situations is less so. The only approach to originalism that makes any sense is an approach that protects those values–an approach that serves as an anchor of continuity in a world where “facts on the ground” are always shifting and technology is constantly reshaping the issues with which courts must contend.
Does slapping a GPS device on a suspect’s car require a warrant? Is use of a technology that lets police see whether you’re growing pot in your basement from across the street a search for purposes of the 4th Amendment? Do Congressional efforts to censor the Internet run afoul of the First Amendment?
What would our quarreling and philosophically differing Founders (there were a lot of them, remember) “intend” about porn on the Internet?
We can only answer these questions and others like them in a consistent and principled way by considering the limits the Founders placed on government and the values those limits were intended to protect.
That would be a workable Originalism. I think Lepore would agree.
5 sites
Thomas Jefferson on whether the American Constitution is …
Thomas Jefferson on whether the American Constitution is binding on those who were not born at the time it was signed and agreed t…
Online Library of Liberty
Did Thomas Jefferson really want the constitution to expire …
Feb 21, 2018 — DocSpit. • 8y ago. Considering the whole concept of amendments was to ensure that the constitution could be adapted to changing ti…
Reddit·r/history
Quotations – Thomas Jefferson Memorial – National Park Service
Mar 1, 2023 — “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the prog…
National Park Service (.gov)
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The real problem with this article is that there were multiple views beyond that if Thomas Jefferson that need to be explored. What does Jefferson know about our modern society in regards to his visionary opinion? It was helpful in one regard in that amendments were needed to change the the constitution over time. 2nd Amendments were necessary to even pass the constitution in order to have any value of states rights. The electoral college was part of the process with a republic democracy on mind over that of an easily adopted democracy. Statistically many look at Biden receiving 81 million votes as impossible regardless of whether people hated Trump who many believe is the autistic king. Kamala received 16% less.
The US constitution currently needs a new constitution restricting laws that are beholden to any religion, for example Sharia law. Democrats are ushering in a hatred against traditional values and replacing it with values beyond our borders. Antisemitism is spreading worldwide. Chants of globalize the intifada are present in New York. Across the Atlantic we see Sharia law imposed in various European neighborhoods.
With the influx of illegal immigration during the last administration an amendment requiring less than 1% should be imposed as fraudulent. In regards to the first amendment being abandoned, California passed a law where journalists like Nick Shirley can be prosecuted or more easily sued for posting or publishing fraudulent or governmental abuses of funds.
Thomas Jefferson in my opinion would opine the huge abuse of the federal government of the publics funds and agree with a Democrat Clintonian presidency and Republican congress cooperative government.
. . . ditto re. Jill Lepore.
As we now know, Scalia was deep inside Koch’s dark network. If I remember correctly, the Koch’s even named one of their right-wing university departments after him for his faithful service to the oligarchy. The university system is full of right-wing propaganda as the dark network grows within Silicon Valley.
I am pretty sure that all the backdoors built into social media for the oligarchs to peer into our social lives are illegal, so most of the government has shifted those duties into private companies like Peter Thiel’s, Palantir. There are plenty of others. Zuckerberg has received numerous orders from federal and state authorities.
If you were kicking the oligarchy’s ass on YouTube or X, and you have a significant following, you’ll find yourself demonetized and shit out of luck. A private company has more leeway to violate your constitutional rights. The government figured that out in the 1980s.
On some platforms, you have to use the “blue and white country” to point toward Israel. If you spoke negatively about Israel, Bibi Netanyahu, or used the word “genocide,” your account was flagged and eventually taken off the platform.
There are actual entities that monitor behaviors, and if you venture off their allowed speech, a call, text, or email will get you banned. No judge, no jury, just banned or de-platformed.
There was an X program built into their platform that evaluated your account. Through an online hack, you could enter a phrase and receive what X thinks about your posts. I checked, and mine was listed as “anti-Semitic” tendencies for mentioning “conspiracies linked to Israel” and mentions ‘genocide.’
Trump, the DOJ, and the oligarchy violate our rights all the time and then ask permission afterward. They can listen to our phone calls, text messages, social media posts, etc. If you don’t think they do, you didn’t read any of the emails Elon Musk released to Matt Taibbi, which show consistent messages from all the top policing agencies.
As was said yesterday, Peter Thiel moved his family to Argentina, where there’s a friendly president. He was also looking at New Zealand. Isn’t Zuckerberg building a fortress in Hawaii?
Others are leaving quietly as well. Elon Musk wants to escape to Mars. Good luck, buddy!
It is said that the tech billionaires led off the Davos, Switzerland, meeting by expressing how scared they were of what is coming. They created the scenario where Donald Trump was supposed to finish destroying what was left of our democracy to instill an autocracy because the world is changing too fast, and democracies are painfully slow. Therefore, they’ve built a monster but are scared to be around when shit hits the fan…red flag. 😉
the easy gather of privacy from,soon to be everyones bedroom is around the corner. privacy bought and sold by tech. thats thier billion/trillion dollar world.
having a complete rogue admin in DC. the timing couldnt be worse. our constitution is being ignored on the privacy issue. if AI has its way,(thats tech,gov,corp,NGO,religion,driving) we have to submit. car dealers opt you in for onstar like tracking,without asking. google sells any silo your in without regard to your privacy. NGOs sell your mailing address for gain. there will be no UBI,(univ basic income) why should they,it interferes with sharholders needs over the workers. the callous words of these so called corp titans are more than ever being scraped out of the board rooms and dumped in our laps as we casually drive your (over priced)living room around while watching t.v. ive seen little and heard less about the WHY of data centers. by the way,that moon shot, try the why,because they want to mine it for gain.imagine how much better the flunkies who do the work and make billionaires,would be better off if your privacy wasnt for sale and we had a living wage instead of the bulllshit of the rich wanting,control of everything..the Pope opened the door on this,its time to keep our billiinaire government from taking over for the rest of our money..
new bumper sticker:
the republican/magas want to start wars.
the liberals want to tax the rich,
we all could live better with that
Jacobin.com
Mac Macmanus:
Gad Saad is very mad that his books are bad and sad..
Anyone wanting to read another respected historian’s take on “originalism” can check out Jonathan Gienapp’s Against Constitutional Originalism: A Historical Critique (Yale University Press, 2024).
“It is impossible to define original intent as Scalia did— as limited to what was in the minds of the Founders at the time they drafted the Constitution. But we definitely can and should defend the principles and values that the Founders were intent upon protecting.”
The time the Founding Fathers spent drafting and finalizing the Constitution had to have taken compromise from all of them. As Ormond Otvas said yesterday at 4:02 p.m., “Compromise assumes both parties are rational.” We must assume the Founding Fathers were rational leaders when making these monumental decisions which have lasted, via compromise, for 248 years and 6 months until Trump. He is succeeding in his making of his own “A History of Originalism” based on destruction of all rational thought and action.
Scalia, et al. were/are projecting their own wishes/needs into their “Originalism,” and trying to shove it down our collective throats. Bork is no hero of the U.S.!
Scalia’s “Live with it!” comment about Citizens’ United will go down as a low point in American Juris Prudence.
We humans have a long history of picking and choosing those parts of historical documents that we like and ignoring the rest. Look at the Bible and the Constitution. Both are frequently quoted out of context by both sides. The “originalists” are the worst offenders in Constitutional corruption and their Christian Nationalist supporters are the worst offenders in Biblical, especially New Testament, corruption.
Everyone focuses on the First, Second, Fifth, and Fourteenth Amendments. IMHO the Ninth Amendment is perhaps the most important. It says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment has been ignored even more than the first phrase of the Second Amendment.
As a disclaimer, remember that, when asked which President I would like to have a beer and a conversation with, I said I didn’t drink beer, but I would love to have a glass of wine with James Madison. I’m not sure my opinion, humble or not, has any relevance at all.😄
VOTE!!!
It is as heartening to notice comments ignored as it is beautiful to read the support and amplification of this most honorable post. As always, Professor, I am grateful.
Jill Lepore’s We the People, A History of the U.S. Constitution is a deeper inquiry into original intent and the history of amending constitutions both in the states and federally. She explores Sheila’s questions thoroughly and exposes the fraud of original intent as pushed by our current court.