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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