"I smell a rat!" -- Patrick Henry, 1787.
“Our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry...” – Thomas Jefferson, 1786.
“Our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry...” – Thomas Jefferson, 1786.
So what is originalism? Hard for me to say, really. It doesn’t
pass the smell test, not mine at least. To those who practice it, originalism
is the philosophy of jurisprudence that argues for strict adherence to the ‘original
intent’ of the people who framed the law, the part of the Constitution, or the
governing principle being evaluated.
To me, at least, originalism either amounts to little more
than history-as-casuistry or provides an ideological cover story for policies
that harm people. Natural law dictates that constitutional arrangements, made by
and adhered to by us, ensure domestic tranquillity, not violent futility.
To repeat: bogus doctrines like 'originalism' are simply
ideological cover stories. Arguably, originalism and biblical literalism are
really cut from the same cloth: that of superstitions posing as decision-rules.
The 2nd Amendment amply demonstrates this point.
One can not easily believe that Messrs Thomas Jefferson, James Madison, and George Mason ever had in mind anything like the ability to wipe out a dozen or more people in a minute with bullets designed to rip them asunder. And who is the archangel of originalism? Chief Justice Taney in Dred Scott. That worked out well, didn't it?
https://nedmcdletters.blogspot.com/2016/06/letter-120-high-tea-in-low-times.html
In fact, while I am sympathetic with sentiments against historical presentism since many tainted figures also had noble qualities I seek to emulate, originalism imposes an anti-intellectual stasis on deliberations with its implicit assumption that people like President Madison or General Lee lacked the capacity to grow with the times.
One can not easily believe that Messrs Thomas Jefferson, James Madison, and George Mason ever had in mind anything like the ability to wipe out a dozen or more people in a minute with bullets designed to rip them asunder. And who is the archangel of originalism? Chief Justice Taney in Dred Scott. That worked out well, didn't it?
https://nedmcdletters.blogspot.com/2016/06/letter-120-high-tea-in-low-times.html
In fact, while I am sympathetic with sentiments against historical presentism since many tainted figures also had noble qualities I seek to emulate, originalism imposes an anti-intellectual stasis on deliberations with its implicit assumption that people like President Madison or General Lee lacked the capacity to grow with the times.
Most of us must readily acknowledge that
conservative justices who attended top-ranking law schools likely understand
the law, the Constitution and its history, as well as the Federalist Papers,
the notes taken in the Constitutional Convention and legal precedent far better
than those of lesser minds and educations (e.g., me).
Nevertheless, unless these people can
prove to us, beyond a shadow of a doubt, that they can read people's minds and
until séances be documented as valid and reliable through use of the scientific
method, originalism does nothing more than obscure reckless speculations. This feckless
guess-work often serves unsavoury notions of who is an American and what does
each American deserve as a minimum (e.g., the Four Freedoms).
For, as silly as that notion of
mind-reading and séances sounds, that is what originalism implicitly does:
assume that one can think in exactly the same manner, thought for thought and
idea for idea, as a founding father did and somehow know what he would think today.
That special art would require mind-reading and communications with men dead
for two hundred years.
Such super-powers then could certify our founders’ opinions about implicit rights to privacy for women; the meaning of, and limits upon, second amendment rights; the death penalty; and, the rest. That is just what Chief Justice Taney tried to do when he started or invoked most publicly this non-sense in 1857: no exceptions from the dead men for, “Well, what I really meant was…” or for, "Yes, but that was our world. Your world..."
Such super-powers then could certify our founders’ opinions about implicit rights to privacy for women; the meaning of, and limits upon, second amendment rights; the death penalty; and, the rest. That is just what Chief Justice Taney tried to do when he started or invoked most publicly this non-sense in 1857: no exceptions from the dead men for, “Well, what I really meant was…” or for, "Yes, but that was our world. Your world..."
At least the Democrats make no pretence
of applying President Thomas Jefferson's basic belief that the world
belongs in stewardship to the living. When I hear originalists bloviating ad
nauseam with their assumptions, garbed in historical pretence and garbled by
polite pedantry, I can only wonder: "Okay...¿who wins here and who
loses?"
If arguments defending or promoting (my
preference and instinct for) conservatism can not stand on their own without
resorting to legal legerdemains -- no matter how loudly or incessantly one repeats this historical
hooey -- one must remain accountable, if not quite true, to himself.
No matter how viciously a political prig attacks the personalities or views of those who dare to oppose his view (one too often stated as being from God, the Constitution, the Bible or whatever other rhetorical diversion), that conservative has to look at the man in the mirror (i.e., himself) and ask, “Am I really telling the truth as I see it or am I angling for something else?”
In the end, when ideologues publicly invoke God, as divined fourteen centuries ago, or ‘the sanctity’ of the Constitution, as written two hundred twenty-five years ago, to control others' rights, they have debased themselves; they have blasphemed their Creator; and, they have sullied the social contract by which we live.
No matter how viciously a political prig attacks the personalities or views of those who dare to oppose his view (one too often stated as being from God, the Constitution, the Bible or whatever other rhetorical diversion), that conservative has to look at the man in the mirror (i.e., himself) and ask, “Am I really telling the truth as I see it or am I angling for something else?”
In the end, when ideologues publicly invoke God, as divined fourteen centuries ago, or ‘the sanctity’ of the Constitution, as written two hundred twenty-five years ago, to control others' rights, they have debased themselves; they have blasphemed their Creator; and, they have sullied the social contract by which we live.
