Why The Originalist Interpretation Of The Constitution Is Just Plain Wrong
If the Constitution only protects the rights that long-dead people thought they had back in 1791, then how much good is it today?
By David Grace (Amazon Page — David Grace Website)
The Originalist Interpretation Of The Constitution
The late Justice Antonin Scalia was probably the leading jurist championing interpreting the Constitution according to the doctrine of “originalism.” In a 1996 speech at the Catholic University of America, Scalia said:
“The theory of originalism treats a constitution like a statute [emphasis added], and gives it the meaning that its words were understood to bear at the time they were promulgated. [emphasis added] You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say, I am first of all a textualist, and secondly an originalist.
“If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”
From Wikipedia: “The most robust and widely cited form of originalism, original meaning, emphasizes how the text would have been understood by a reasonable person in the historical period during which the constitution was proposed, ratified, and first implemented.”
An Example: Cruel & Unusual Punishment Under The Theory Of Originalism
Edited from Wikipedia: Justice Antonin Scalia and other originalists felt that the death penalty could not be “cruel and unusual punishment” as that term is used in the Eighth Amendment because in 1791 the citizens who voted to ratify the Eighth Amendment (only adult, white males) did not think that the death penalty was THEN both cruel and unusual.
In the originalists’ view, what Americans today think is a cruel and unusual punishment that may not be imposed on a criminal today is completely irrelevant as to whether or not the 8th Amendment would prevent a State from imposing a punishment on a criminal today.
According to the originalists, if those few hundred thousand white, male citizens who approved of the Constitution back in 1791 thought that cutting off a thief’s hand was not cruel and unusual punishment in 1791, then today the states would be free to cut off a thief’s hand even though most of the three hundred forty million Americans living today overwhelmingly believe that such an amputation would be “cruel and unusual punishment.”
Under the doctrine of originalism, how a majority of the three-hundred forty million Americans who are living under the Constitution today understand its words and interpret its principles is irrelevant and must be totally ignored, and instead the Constitution’s words can only be read in accordance with the usage, beliefs, ethics, morals, and opinions of the long-dead adult, white, male Americans who supported it over two-hundred years ago.
Who Were These People Who Proposed & Ratified The Bill Of Rights?
Less Than A Million Americans Ratified The Bill Of Rights In 1791
Since the originalists want the constitution to only mean what the people who ratified it thought it meant back in 1791, we have to ask, “Who were these 1791 people whose interpretation of the Constitution is going be enforced on all Americas for all time?”
The population of the United States in 1790 was about 4,000,000 people. According to the 1790 census about 700,000 of them were slaves who had no rights, leaving about 3,300,000 free people. About a third of them could be assumed to be minors, leaving about 2,200,000 adults. About half of them could be assumed to be women who were not allowed to vote, leaving about 1,100,000 eligible white, male voters.
The legislatures of three-fourths of the states ratified the Bill of Rights. If that percentage was representative of the will of the eligible voters then about 825,000 white males approved of the language of the Bill of Rights in 1791.
The notion that for all time the words contained in the Bill of Rights must ONLY be allowed to mean what about 825,000 white males living over two hundred years ago in a sparsely-populated, low-tech, agrarian society thought those words meant way back then is ridiculous on its face.
Would The Founders Have Supported Originalism?
Is it reasonable to think that Madison and the other drafters of the Constitution intended that the Constitution’s meaning and protections would be frozen in their narrow scope that existed as of 1791 and limited to only the opinions of 1791 adult white males (the only people who were allowed to vote for or against adopting it);
That no matter how the country’s demographics, voters, technology or society changed in over two-hundred years that the Constitution would still narrowly mean only what an adult, white, male living in 1791 thought it meant back then?
Originalists Want To Interpret The Constitution AS IF It Were A Statute
It is important to note that Scalia viewed the Constitution as if it were a statute, a law passed by the government, one whose meaning was frozen in time as of 1791, as opposed to the Constitution being a perpetual contract between the Government and the American People whose duties and benefits are based on the original intent of the parties and interpreted in accordance with the understanding of its words and principles by the original parties’ successors-in-interest, that is by those Americans who are alive today.
The Constitution Should Not Be Interpreted As If It Were A Law But Rather As A Contract Between the American People & Their Government
The Constitution is not a once-and-done, frozen-in-time, statute that will forever chain down the 340,000,000 million Americans living today with the ideas of a few hundred thousand white males living in a low-tech, agrarian society over two-hundred years ago.
The words of the Constitution should instead be interpreted as if it were a continuing, long-term, perpetual contract between the Government today and into the future and the American People both today and into the future that sets out the broad outlines of their relationship with each other for both today and the future.
The original parties to a long-term contract are the people who signed it, but as time passes new people become the successors-in-interest to the original parties to the agreement.
The current government bodies and the current American People are the successors-in-interest to the original signatories to the contract that is the Constitution.
It is the American People living today, not those who few white males who have been dead and gone for over two-hundred years, who are the real, present, parties in interest whose reasonable beliefs and attitudes today must be the guide to understanding today the meanings of the words and the intentions of the Constitution.
The Current Interpretation Of Language In An Old Contract
How do courts interpret the meaning of the words in a contract executed decades ago?
A 99-year lease might say: “The landlord shall provide and maintain reasonable access to utilities for the benefit of the tenant.” When the lease was signed “utilities” were commonly thought of as gas, water, and electricity.
When television come along and then the internet, the tenant and landlord disagreed about whether or not the landlord was obligated to provide TV antenna connections and cable/internet connections to the tenant.
An originalist would say that to the original landlord and tenant the word “utilities” meant water, gas and electricity so therefore today it is impossible for “utilities” to include anything else. Case closed.
How Do Successors-In-Interest Interpret The Agreement?
But the courts don’t interpret contracts that way.
A court would ask, “Did the parties intend that the meaning of the word ‘utilities’ would be forever locked-in to only mean water, gas and electricity?” If that was the parties’ intention, wouldn’t they have just said that the landlord would provide access to “water, gas, and electricity”?
The use of the collective word “utilities” instead of specifically saying “water, gas, and electricity” implies that the parties deliberately used the word “utilities” as a category of those things that were basic services in order to allow for more, less or different landlord-provided services as conditions changed over the 99-year term.
For example, the government might prohibit new gas connections and seek to phase out old ones in order to reduce carbon dioxide emissions. In such a case the landlord might well successfully argue that the word “utilities” no longer included access to natural gas and therefore it was no longer obligated to install or maintain the network of gas pipes.
If the word “utility” when used in a lease executed today would commonly be considered by reasonable landlords and tenants to exclude gas and include cable/internet access and if the original parties used the word “utilities” as a general category of landlord provided services whose members were subject to change over time, then the court might find, contrary to the originalist theory, that the landlord under this old lease must provide internet cableling even though the original parties did not consider internet access to be a utility when the lease was originally executed.
Contracts affect the obligations and rights of the parties today, not eighty years ago, because today is when those duties have to be performed and when those benefits will be received. Because circumstances change over time the words of long-term contracts must be interpreted in accordance with how those words are reasonably understood by the parties today.
How This Applies To The Constitution
What the words of the Constitution mean today is not frozen into what they meant to Americans living over two-hundred years ago nor should they be interpreted that way.
The words in the Constitution mean what the Americans living today think they mean in light of the world as it exists today because as the successors-in-interest of the Americans who ratified it, today’s Americans and today’s governments, are the ones who are living under the consequences of that meaning.
Why The 4th Amendment Adopted in 1791 Protects Your Flash Drive
Once you understand that the Constitution is a continuing, perpetual contract intended to express the general principles that govern the relationship between today’s American People and their Government today, that it exists not for the benefit of those long-dead Americans who ratified the Bill of Rights over two-hundred years ago, but for the benefit of all the succeeding generations of Americans who have lived after 1791, then you understand why it is irrelevant that the Fourth Amendment doesn’t mention a warrant being required for the government to access the data on your flash drive or intercept your wireless communications.
Because the intention of the Fourth Amendment was to preserve the privacy of the American People from unreasonable intrusion by the Government over the entire period from 1791 and continuing down through the history of the country to the present day and beyond, of course the Fourth Amendment today prohibits the Government from tapping internet services, intercepting cell phone calls, hiding cameras in homes or putting trackers on cars without a warrant even though no one understood it to prohibit any of that sort of warrantless conduct back in 1791.
How ridiculous it is to claim that the Constitution only protects the narrow rights of the American People that the long-dead voters who ratified it over two-hundred years ago thought that they had back in 1791 and nothing more.
No, the Constitution is not here only for the protection of the rights of those 1791 Americans. It is here today to protect the rights of those Americans’ successors-in-interest, down through the ages, to and including the American People living today.
Why The 1st Amendment Adopted in 1791 Protects Internet Speech
When you understand that the First Amendment is a continuing, perpetual contract between the American People and their Government, designed to prevent the Government from unreasonably restricting the People’s ability to communicate with each other then, yes, of course the First Amendment prevents the Government from censoring communications transmitted over radio, television, the internet, text messages, etc. even though none of those things are mentioned in the Constitution or were even dreamt of by the long-dead people who ratified it back in 1791.
Originalism Is Only A Political Tool Designed To Permit Right-Wing Laws
Madison was not that stupid. No, I’m not saying Scalia was stupid. My opinion is that he was an ideologue who advocated the theory of originalism as a tool to advance his right-wing political philosophy.
I believe that the originalist view of the Constitution as a statute set in stone and limited to the ideas of a few hundred thousand white, male Americans who died over two-hundred years ago was created and advanced by very conservative people as a tool designed to allow the states to enact right-wing, fundamentalist legislation free of the risk of a constitutional veto.
If you can get a state legislature to establish segregated schools or ban inter-racial marriage or criminalize birth-control and homosexuality, then under the originalist philosophy, the Constitution will prevent none of such legislation.
Interpreting The Constitution Based On What Americans Today Understand Its Words To Mean Keeps It Alive No Matter How Our World May Change
If the Bill of Rights is
- a perpetual contract between the American People and their Government for the benefit of the successors-in-interest of the original Americans who ratified it down through all time,
- a continuing contract that was intended to define what the American People and their Government can and cannot do today,
- a perpetual contract setting forth the principles underlying the rights and duties of the American People and their Government to each other as those rights, duties and principles are understood by the Americans alive and living under it,
then the Constitution will continue to serve, protect and benefit the American People for hundreds of years into the future.
If the Constitution only exists to protect the narrow interests of a people and a society that have been dead and gone for more than two-hundred years, then it won’t.
— David Grace (Amazon Page — David Grace Website)
