Constitutional Originalism’s Conceited Intent

It is an audacious pursuit to divine an assertive original context from a text written by men who themselves did not agree. Such is the conceit of constitutional originalism and it’s disciples. Even a modest history lesson divulges the disagreements among the founders — whether a Bill of Rights should exist, or even if there ought to be a constitution at all.

Patrick Henry preferred the Articles of Confederation, but after striking a deal to include a “bill of rights,” he was persuaded to support the Constitution. In contrast, Alexander Hamilton in Federalist No. 84 opposed a bill of rights, fearing it might later be interpreted as the only rights of the people. It seems even before ratification, potential alternate constitutional interpretations by future generations faced scrutiny, a key insight into the thinking of at least some of the founders.

But a new wave of judicial conservatives assert they are the true arbiters of constitutional law, citing their strict originalist interpretation as testament. It’s not just that they are opining from the bench with regressive right-wing thinking, they are doing it while claiming to represent the true original intent of the founders. But we already know this is a futile exercise, because there is no definitive original meaning to an often ambiguous text, especially considering the ephemeral struggle of ideas among the framers.

The Fourth Amendment is a notable example of the Constitution’s many opaque statements.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What is an “unreasonable” search or seizure? To issue a warrant, what qualifies as “probable cause”? By constructing such a vague statement, the founders deferred to the discretion of future lawmakers and judges. What is “unreasonable” and what constitutes “probably cause” is still debated to this day. Case in point is the expanding national conversation on door-busting drug raids made possible by “no-knock” search warrants. It turns out not even the Fourth Amendment is settled law.

Other noteworthy constitutional enigmas include, “promote the general Welfare” (What welfare? – Economic? Health? Anything we can come up with?), “the right of the people to keep and bear Arms” (Any arms available then, now, forever?), “the accused shall enjoy the right to a speedy and public trial” (Define “speedy”).

Because the Constitution was a compromise, sometimes of unlike minds, its many vague passages never possessed the consensus meaning enjoyed by its more specific provisions. Even the meaning of specific words lacked agreement. While the presidential age requirement of 35 years is of unquestionable meaning, Congress’ power to “make all Laws which shall be necessary and proper,” is less clear-cut.

A constitution cannot foresee how future governments will wield the sword of tyranny. For this reason, our Constitution exists as the foundation upon which we build a governmental framework, manufactured from our contemporary morals and ideals. Constitutional originalists believe they are calm and serious scholars of constitutional law, free from the shackles of speculation, and immune to the allure of activism. But because it is preposterous to believe one can extract the consensus original intent of the many vague words of the constitution, it follows that originalists fill the gaps with their own interpretive instincts. In other words, originalist judges are no more unaffected by ideology than any other adjudicator, even if they righteously believe they are, which is what makes constitutional originalism particularly insidious.

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GovernmentHuman Rights

#activist judge#constitution#founders#fourth amendment#ideology#interpretation#judge#law#original intent#originalism#originalist#textualism#textualist

  • The above Facebook commentary is indicative of the “shock and awe” I’ve come to expect in the 7 years of running a left-leaning commentary blog. The central idea of the commentary is to inundate as means to deliberative quiescence. Because I don’t have the time to reply to every point means they win. I’ve accepted that premise on their behave.

    • John Ash

      Says someone with no argument at all, just uneducated opinion. Sorry to actually drown you with history and facts.

      • I don’t hold claim to the status of seer, so whether you drowned me with history and facts we’ll leave for others to decide. I may eventually get around to replying to your less than coherent rapid-fire replies, but don’t hold it against yourself if I don’t.

        • John Ash

          Do try, I want to see it.

    • John Ash

      “I have no problem declaring my lack of requisite knowledge and experience.” – David Sutton

      • Yes, I said that. Thanks for playing.

        • John Ash

          Well, do try to avail yourself of the internet and learn something. It will make blogging about it less foolish.

          • And on that point, please avail yourself of American judicial history if you feel the need to push back against the idea of a living document.

          • John Ash

            Judicial history is simply the history of crime agains the Constitution, not the least of which rewrites substantially multiple clauses, such as changing “provide for the general welfare of the United States” to “provide WITH the specific welfare of anyone who makes us sad anywhere in the world”, the changing of the Necessary and Proper Clause to the “Convenient and Easy Clause”, the changing of the Interstate Commerce Clause to the “International Anything to do with Business Anywhere Clause”.

            Absolutely nothing of judicial history is actually IN the Constitution and therefore, is subject to instant repeal at any time.

    • Thanks for playing.