Tag Archives: Madison

Let’s Talk About Originalism

Today, the Senate is scheduled to elevate Amy Coney Barrett–a rigid ideologue who has never tried a case– to the Supreme Court. During the fiasco that has substituted for her vetting, we’ve heard a lot about “originalism.”

A while back, a reader of this blog reminded me of Thomas Jefferson’s opinion on originalism, contained in a letter he wrote to Samuel Kercheval on July 12, 1816.  Jefferson wrote

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”

The philosophy of “originalism” was popularized by Antonin Scalia, who tended to employ his version of it when he disapproved of those “changes in manners and opinions” and ignore it in the many cases where it was clearly unworkable.

As I have previously explained, there is a version of originalism that does work, that does keep the constitution from being simply what nine people in black robes say it is.

In that version of originalism, courts are required to protect the values and principles that the founders were clearly trying to protect. James Madison could never have anticipated new methods of communication–radio, movies, television, the internet–but he had very clear ideas about protecting expression against government censorship. He, Jefferson and several other Founders also clearly expressed their beliefs in the importance of separating government from religion. Courts today must honor the Founders’ devotion to those and other principles embedded in and protected by the Bill of Rights.

Fidelity to those principles is the only workable and intellectually honest form of originalism, and as Edwin Chereminsky recently pointed out in an editorial for the New York Times, it is definitely not the originalism of Amy Coney Barrett.

Chereminsky is a prominent legal scholar, and Dean of Berkeley’s law school, and he points to the numerous problems with Barrett’s purported “public” originalism–the notion that the constitution must be interpreted to mean what the public thought it meant when it was ratified.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

The Dean points out that rejection of Barrett’s understanding of originalism is anything but new. He quotes the 19th century Chief Justice, John Marshall, who wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Furthermore,

It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.

Chereminsky makes a point I also make to my classes: how can “original public meaning” guide today’s courts in deciding whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes, or obtain stored cellular phone location information without a warrant?

The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.

Placing Barrett on the Supreme Court dishonors both the Court and the Senators who vote to confirm her.

 

 

 

Quotes From The Founders of Our “Christian Nation”

One of the many things Thomas Jefferson was known for was creating his own version of the bible: he famously excised all of the metaphysical portions, leaving only the moral teachings. (This may be why, when he was running for President, opponents warned that  he would order the burning of all bibles if he were to be elected.) I thought about that recently, when I came across a collection of quotations about religion and religious liberty from Jefferson and America’s other founding fathers. I was familiar with most, but not all of them. Of those I hadn’t previously seen, I particularly liked this one from Jefferson, taken from a letter he wrote to one Peter Carr in 1787:

“Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear.”

Ben Franklin was more blunt. In Poor Richard’s Almanac, in 1758, he wrote

“The way to see by faith is to shut the eye of reason.”

Although not technically a Founder, Thomas Paine was an enormously influential figure in Revolutionary America, and a reliable critic of religion and religious establishments; in The Rights of Man, he wrote

“Persecution is not an original feature in any religion; but it is always the strongly marked feature of all religions established by law. Take away the law-establishment, and every religion re-assumes its original benignity.”

In 1776, in The American Crisis, he made his disdain for “faith-based” reasoning even clearer, writing

“To argue with a man who has renounced the use of reason is like administering medicine to the dead.”

(Explains the problem with several current members of Congress, the General Assembly and most of Texas….)

Madison frequently weighed in on the side of reason and the need to separate church from state. In his often-quoted letter to William Bradford, he wrote

“Christian establishments tend to great ignorance and corruption, all of which facilitate the execution of mischievous projects.”

There are many similar quotes from the architects of our Constitution, easily found in textbooks, history books or a cursory visit to Doctor Google. This nation’s founders tended to agree with Gallileo that “man is not obliged to believe that the same God who has endowed us with senses, reason and intellect intends us to forgo their use.” However avid our current culture warriors may be about rewriting American history, it’s impossible to ignore the continued relevance of these sentiments. In fact, in view of the current push for explicit religious “liberty” to discriminate against LGBT folks, another Jefferson quote (from A Bill for Establishing Religious Freedom) seems especially apt:

“Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.”

You tell ’em, Tom!