Wednesday, January 26, 2011

On Constitutional "Originalism"

Today remains Tuesday, 25 January 2011.

“The most important truth about the Constitution is this: it was written as a set of rules by which living people could solve their own problems, not as a 'dead hand' restricting their options. Strikingly many important questions, from the nature of the Supreme Court to the composition of the cabinet, are left to Congress. There's ample evidence in the text that the framers didn't think of themselves as peering into the future and settling all questions; instead, they wrote a document that in essence says, 'Work it out.'” (Garrett Epps; recently referenced by “rtr”)

To Originalists, this is not merely nonsense, but pure heresy.

To Originalists, the Framers did peer into the future and settle all questions, because, to them, the Constitution is not a secular product of a struggle about political and economic dominances at a particular time and place, but (sometimes claimed implicitly and sometimes explicitly) an actual irruption of the Divine into the world, in the same sense as the Giving of the Commandments on Sinai.

To them, the Constitution is the political equivalent of Holy Writ: very literally, God’s First and Last Word on everything regarding political structure, sufficient in itself. Thus, to refuse to recognize and submit with unquestioning obedience to the divine Intentions as expressed through the Framers, is to surrender to sin and unleash chaos on the world, just as Eve supposedly did when she fell for the wiles of Satan.

To Originalists, the Constitutional Convention was a unique event, signifying the blessing of the Divine on the American experiment. (“American exceptionalism”.) To the rational, it was a gathering of prosperous white males who had played significant roles in a coup which had successfully raised a subordinate section of a ruling elite to top status. Having recognized that the organizational structures created by the Articles of Confederation were significantly lacking, the Framers designed an improved system to preserve and extend the longitudinal dominance of their heirs along the axis of time. Nothing unique, just the way politics works.

Not surprisingly, the secular Originalist and Christianist Originalist ideologies are functionally indistinguishable from Islamist fundamentalism, such as advocated by Sayyid Qutb, Omar Abdel Rahman, and Osama Bin Laden. The two factions merely differ on whom the divine blessing to conquer and exploit has been bestowed.


Anonymous are you kidding me? said...

Are you so woefully misinformed that you actually believe this drivel? Even in light of your previous posts and ideology, I must say I am surprised. Nary a word of your post today bears any relation to the facts.

"Originalist", "original meaning", "original intent" and "strict constructionism" are terms of art that you obviously have not encountered, deciphered or considered. Nothing described in your post addresses or even describes the thought process of any of these principles, theories or schools of thought.

Wow. What a crazy tangent you've taken with all the fundamentalist talk. Originalists do not believe that the Constitution is "an actual irruption of the Divine in to the world, in the same sense as the Giving of the Commandments on Sinai." Let's talk about what Courts really consider and articulate for the basis of decisions - even if we disagree with them. THAT'S the only way to have a rational discussion about our fundamental disagreements. Not this.

12:06 PM  
Anonymous incredulous said...

I vehemently disagree with Scalia, and those other Justices and judges, who have adopted "originalism" as their method of intrepreting the Constitution. (Originalism is, of course of theory of interpretation, not construction.) But their views are hardly represented here.

12:26 PM  
Blogger HH said...

Thanks for the comments, though some specifics would be helpful. From the perspective of the Frankfurt School and Critical Legal Theory/Studies, my analysis is rather tame.

1:34 PM  

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