May 07, 2010

The 'Original Intent' Straw Man Returns

A favorite trick of the left is to take 'judicial activism' and/or 'originalism' and use them in a different way than the right actually uses the terms. They then either take down the straw man or cry hypocrisy. You see it every time the Supreme Court strikes down a beloved statue of the left, i.e. Citizens United. The latest to use this tactic is Mount Holyoke College professor Joseph Ellis. From his WaPo op-ed:
Yet the constitutional doctrine of original intent has always struck most historians of the founding era as rather bizarre.
I can't speak for "most historians", but it strikes me as a bit odd as well because originalists aren't concerned with original intent. They are concerned with original public meaning. That is because the Constitution is a legal document and, as such, it means what it did at the time of its ratification until it is properly changed. Ellis' straw man is now firmly in place. Ellis goes on:
The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the "miracle at Philadelphia" was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.
I have never heard any originalist claim that the Constitution is "uniquely omniscient." The Reconstruction Amendments, and originalists feelings toward them, aptly make the case against omniscience and should have shown Ellis that his point was stupid. He concludes:
If we were to put the doctrine of original intent on trial, the most eloquent witness for the prosecution would be Thomas Jefferson. Here is what he wrote to a friend in 1816:

"Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did beyond amendment. . . . Let us follow no such examples, nor weakly believe that one generation is not as capable of taking care of itself, and of ordering its own affairs . . . Each generation is as independent of the one preceding, as that was of all which had gone before."

He was telling us, in his own lyrical way, that we are on our own. Jefferson would vote against any nominee who claimed merely to be an umpire calling balls and strikes in a strike zone already determined by the Founders.
I will leave it to others to put Jefferson's quote in context. Jefferson's quote fits just fine into originalism, although not Ellis' straw man. Originalists do not believe that the Constitution cannot be changed, just that it should be properly changed through the amendment process.