Friday, January 28, 2011

More "Originalism"

Today is Thursday, 27 January 2011.

I’m disappointed that neither “are you kidding me?” nor “incredulous” have chosen to amplify their comments on the column, “On Constitutional “Originalism””.

Perhaps in that column I was unclear. I wasn’t directly addressing questions of “construction” and “interpretation”, or the degree of overlap between the two, but the question of philosophical justification. That is: why should one give a fig about the original intentions of the Framers?

Were they indeed, as many claim, “the smartest guys in the room”? Do their intentions matter because they designed a system of government which was, and is, despite minor flaws, fundamentally the most perfect ever devised? On the face of it, this is a philosophical justification which appeals to Reason.

Of course, it’s obvious that the original intentions of the Framers included that females and Blacks, among others, should be permanently disenfranchised. Otherwise, they would have mandated explicit mechanisms to widen the franchise at some future date, and not simply left it to chance. Quite obviously, there were some provisions of the Constitution which the Framers intended should never be amended. (By their conduct in the immediately-previous war, they had shown they had no intentions of shooting themselves and their hegemony in the collective foot.)

The other philosophical justification for giving absolute primacy to the original intentions of the Framers is the appeal to Divine Authority, which I wrote of as “an actual irruption of the Divine into the world”. This is the approach favoured by partisans of “American exceptionalism”, such as Sarah Palin.

On the whole, I think that proponents of Originalism are better off going with the Divine justification, which admits of no debate, and provides the ultimate rationale for enforcement: obey, or God says I can kill you. Otherwise, they must construct reasoning which will convince females and Blacks that they should be disenfranchised.

(It would be quite a delicious irony, were Originalism not so pernicious in its effects, that its rigorous application would dash the Presidential hopes of Sarah Palin and consign Clarence Thomas to the cotton fields.)

As I also indicated, the overriding project of the Framers was not the creation of a perfect and just form of government, but the perpetuation in power of themselves and their heirs, as is normal with any ruling elite. I draw this conclusion, as I indicated in my comment to the commenters, partially in the spirit of the Frankfurt School and Critical Legal Studies (or Critical Legal Theory, as I prefer), but the spirit goes much further back, undoubtedly to the beginnings of human social organization. Perhaps the most succinct distillation of this approach is the famous phrase of Lucius Cassius Longinus Ravilla (consul in 127 B.C.E.), who always asked, when he sat in judgment, “Cui bono?”, “To whose benefit is this?”

In this case: to whose benefit is understanding the proper application of the Constitution, through divining the “original intentions” of the Framers? Obviously, to the benefit of the Framers and their would-be heirs.


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