Posted on 08/29/2018 3:11:58 PM PDT by yesthatjallen
President Trump is nominating federal judges, and Supreme Court Justices such as Judge Brett Kavanaugh, who claim to be committed to “originalism.” This approach to constitutional law requires that the Constitution be interpreted to mean today what the text was intended or understood to mean at the time it was written. But originalism conflicts sharply with American reality and American ideals.
Years ago, Frank Sinatra sang a song about what America meant to him. The last line was “But especially the people, that’s America to me.” If that’s what America is, then originalism is unamerican. Because there is no place for the over 300 million Americans today in originalist interpretations of constitutional law. We just don’t count.
Who does count? Only the people who were here in the 1780’s and 90’s or when specific constitutional amendments were adopted. The vast new diversity of the American people today has nothing to offer to our political foundations.
Both originalists and non-originalists look to American history to interpret the Constitution. But to originalists, most of that history stops 230 years ago. The American constitutional story largely begins and ends on the first page. To non-originalists, American constitutional law, like America itself, is a story that never ends.
The key issue separating originalists and non-originalists is what to do with all of the rest of American history after the Constitution was ratified. When courts interpret the Constitution, just how much weight should be assigned to the collective experience of the American people over the last 230 years. The originalist answer is none or as little as possible. What matters most is what judges decide constitutional language meant over two centuries ago.
Put bluntly, this originalist commitment to a constitution frozen in time and divorced from the changes America has undergone over the centuries repudiates the core values of the American experience.
Think about what is distinctive and special about America. European governments were chained to centuries of history and tradition. That was the old world. America is the new world. We are the pragmatists, the experimenters. We try things out and continue what works and discard what doesn’t. We do that with everything including law. But that’s not the America of originalists. From their perspective, constitutional law is fixed and immutable. It cannot evolve. Judges cannot learn from American experience.
Non-originalists believe that the American people have worked with constitutional law for over two centuries. We learned a lot. We struggled to create constitutional doctrine that reflects who we actually are as a people, not some ideologically manipulated picture of who a few judges think we once were.
Unlike originalists, non-originalists recognize that the Constitution must take account of the changed understanding in our society of the status and rights of women. Accordingly, privacy and autonomy rights including the right to access to medical contraceptives must be protected and gender discriminatory laws must be subjected to rigorous scrutiny.
Unlike originalists, non-originalists understand how much our society has learned over time about the LGBT community. Because they are no longer in hiding in response to persecution, we can now see our gay and lesbian family members, friends, neighbors, co-congregants, and colleagues as people with the same needs and rights as the rest of us. At the constitutional level, this means that laws criminalizing sodomy or prohibiting same-sex couples from marrying must be struck down.
Unlike originalists, non-originalists have learned that democracy needs constitutional protection against political threats the framers may have under-estimated or ignored. Courts cannot close their eyes to elections being manipulated through burdens on voting and gerrymandered districts. The Constitution must be interpreted to protect voting as a fundamental right and to insist, at a minimum, that election districts must be of equal size and reflect the principle of one person, one vote.
Put simply, non-originalists believe that constitutional case law is a process grounded in the on-going experience of the American people. Older decisions can be challenged because of their real world consequences. Non-originalist judges may make mistakes. When that happens, eventually the wrongfully decided cases are overruled. Constitutional law does not become permanent unless it works, unless it resonates with the beliefs of the American people overtime.
Originalists believe that history has an iron grip on constitutional meaning. The great constitutional questions of the day turn on lawyers debating what people understood centuries ago, not on the needs of Americans today and the values we have forged over centuries of struggle.
Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and serves on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.
This is a stupid article written by a stupid person on a stupid website.
“Anwar al-Awlaki’s kids deserve the same right to run as Ted Cruz.”
Your statement is about as deranged as this article.
A therapist might be able to deprogram you from Ted Derangement Syndrome.
Cruz is an originalist, BTW. I’m sure that will set you off. But take your pills and avoid bringing it up next time.
I guess this genius, Alan Brownstein, never heard of the amendment process. He might be a miseducated dope.
They are as eligible as Ted Cruz.
If he is an originalist then he knows he is ineligible.
Born in a foreign country to one citizen parent is not a natural born citizen.
They may be a citizen by action of some law, but natural born citizen need no laws as they are naturally citizens because they are no alternatives, they cannot be anything else.
People born with multiple nationalities are not natural born citizens.
As an originalist, I will freely admit to being at war with “The Hill”.
Yes, you want change? Then pass an Amendment to the Constitution. You want experimentalism? Then you should acknowledge that states can do that. Some states may want to legalize some things, others may not. That is experimentalism.
An issue often overlooked is that there are less practicing, sincere, Judeo-Chirstians. Here is what some of our founding father had to say:
"We have no government armed with power capable of contending with human passions unbridled by morality and religion . . . Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams
" Religion and morality are the essential pillars of civil society." George Washington
"[O]nly a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters." Benjamin Franklin
"The moral principles and precepts contained in the scriptures ought to form the basis of all our civil constitutions and laws. . . All the miseries and evils which men suffer from vice, crime, ambition, injustice, oppression, slavery, and war, proceed from their despising or neglecting the precepts contained in the Bible." Noah Webster
"Whereas true religion and good morals are the only solid foundations of public liberty and happiness . . . it is hereby earnestly recommended to the several States to take the most effectual measures for the encouragement thereof." Continental Congress 1778
"Human law must rest its authority ultimately upon the authority of that law which is divine. . . . Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other." James Wilson (signer of the Constitution and U.S. Supreme Court Justice)
We are less religious as a country resulting in the call for the "changing" of the Constitution.
The message here is a total lie.
No, it conflicts with YOUR reality, and your ideals. Too freakin bad!
These people are insufferable!
I guess this nut-job has never heard of the amendments.
History most definitely didn’t stop 230 years ago.
Well, this is what we are up against.
There is no satisfying them.
We are the Deplorables, the Undesirables, The Originalists.
...and we are in the way.
Thank God.
Without intending to do so, Browstein argues for an Article V COS.
Hey Mr. Brownstein. Get out of my country before I put you in a ditch.
Yes, that’s about it.
By the end of Trump’s two terms, these folks need to be back under their rocks.
You hit the nail on the head.
If you are confused how to view the Constitution just ask yourself two questions.
Has the reason the founders limited legislative powers improved since the original Constitution?
Has the reason for adding further declaratory and restrictive clauses to prevent government abuse improved since the Bill of Rights?
In a nutshell, has man improved enough that you would trust him with additional powers of legislation beyond what the Constitution provides?
He’s saying that judges should have the power to both create law, and amend the Constitution, based on their own judgement. That Judges are Gods, who may not be constrained.
What terrifies him is the idea that the Courts have essentially been given unlimited power, and Trump is now filling the benches with HIS people.
The Constitution is just an impotent piece of paper, UNLESS it is backed by a citizenry which believes in it, and is willing to protect it by force of arms.
The cult of cowardice has indoctrinated us to the bent knee for too long.
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