Thursday, May 17, 2018

Why Originalism Matters (Part I)

I have written about originalism before, but there are sufficient reasons to clarify why we need judges who interpret the meaning of the text of the Constitution. This is referred to as textual meaning originalism which is vastly different than intent originalism. All evidence indicates the Founders wanted the Constitution to be interpreted through its textual meaning and not the intent of the Founders. Paul Brest and H. Jefferson Powell wrote articles pointing out the defects of originalism. According to Brest “The act of translation required involves the counterfactual and imaginary act of projecting the adopters’ concepts and attitudes into a future they probably could not envision.” Powell asserts that original intent was not an appropriate strategy and the Founding Fathers did not agree with it. Brest and Powell make valid points, but they are rejecting intent originalism, not textual originalism. After all, there is nothing “imaginary” about the meaning of the Constitution. Madison said “What a metamorphosis would be produced if the code of law if all its ancient phraseology were to be taken in its modern sense.” In other words, the textual meaning of the Constitution at its founding is the correct way to interpret the document. In Marbury v. Madison, decided in 1803, Chief Justice John Marshall argues for both originalism and judicial review in his “principles and theory of government”. Although this decision is widely accepted today for its judicial review precedent, judicial scholars neglect its originalism precedent. In fact, most people incorrectly interpret the Marbury decision by declaring the Judicial Branch as being more powerful than the other branches of government. That is not correct, all branches of government are on equal footing. In fact, the Federalist Papers insist the Judicial Branch was to be the weakest branch of government, but the power of judicial review was the equalizing factor. The Marbury decision provided the Supreme Court the power to null and void unconstitutional Congressional laws (judicial review), but it never ceded “judicial superiority” to mandate Congress act on the orders of the Court. This misconception of “judicial superiority” can be found in many Supreme Court decisions where Congress is directed to carry out the Court’s mandates, regulations, and legislation.

Other arguments against originalism include the Founders are dead and cannot rule from the grave and the Founders were only white males and are not representative of the American population. Moreover, many Founding Fathers were slaveholders and therefore were both racist and sexist. But keep in mind the Constitution binds the action of government and not the action of citizens. The Founders were not writing a Constitution to protect the rights of white males, but to protect all citizens from government intrusion (slavery is not mentioned in the document). Besides, the Supremacy Clause of the Constitution, which has been used extensively by both the right and left, says “This Constitution shall be supreme law of the land.” Furthermore, it proclaims that “judges in every state shall be bound thereby.” In other words, the Constitution declares judges interpret the Constitution in its original form. Therefore, any interpretation other than originalism is unconstitutional, especially for any judge that has used the Supremacy Clause.

Both Brest and Powell argue that the text of the Constitution is “open ended”. If that were true then the original meaning of the Constitution would be sufficient to justify any liberal law instead of inventing jurisprudence to validate the law. Some clauses such as the Ninth Amendment or the Privileges and Immunities clause of the Fourteenth Amendment are certainly “open-ended” and would allow for the discretion of Justices to add Fundamental Rights (Yes, I am changing my view of the Ninth Amendment from some previous writings). On the other hand, the Commerce and Necessary and Proper Clauses are not open-ended, but that did not stop the Court from turning these static clauses into elastic or dynamic clauses to cover anything Congress desires or imagines. To find proof of this disobedience one would only have to evaluate cases such as Wickard v. Filburn or Raich v. Gonzales to see how the Court used its imagination to broadly apply the Commerce Clause to restrict the rights of American citizens. Further examples including Berman v Parker and Kelo v. New London illustrate how the Court used its imagination to broadly apply the Takings Clause to restrict the rights of American citizens. These are bad decisions that the Constitution’s original text was written to prevent, but unfortunately, that is not how elitist Justices accomplish their political ends. What’s worse, the precedent of such decisions leaves one to wonder are there any limits to federal government power? Kelo makes any government takings for private reasons possible and Wickard and Raich make regulations against any personal backyard garden possible. Finally, nobody understood the function and structure of government better in American history than our Founding Fathers. Acceptance of the Founding Fathers older theories is much easier to tolerate than those ideas of brain dead modern political and judicial leaders such as Obama, Bush, Trump, Ginsberg, Kennedy, Scalia, Sotomayor, Schumer, Kagan, Stevens, Alito, Pelosi, McConnell, Ryan, and others. Only Justice Thomas interprets the Constitution correctly.

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