AN INQUIRY INTO CONSTITUTIONAL ORIGINALISM
Catalano is a TV writer/producer and Professor of Literature
and Music at Pace University. He reviews books and music for
several journals and is the author of Clifford
Brown: The Life and Art of the Legendary Jazz Trumpeter,
Nights: Performing, Producing and Writing in Gotham
New Yorker at Sea. His latest book, Tales
of a Hamptons Sailor, is now available. For Nick's
reviews, visit his website: www.nickcatalano.net
2500 years ago the Greek philosopher Heraclitus averred that
"the only thing that is constant is change." Since
then Constitutionalists from democratic Athens, imperial Rome,
13th century English monarchy and Age of Enlightenment parliamentary
states have striven to create governmental frameworks that preserve
individual freedoms while protecting social order.
American founding fathers drew upon these frameworks and, in
1789, created a document which has become an ideal for advanced
contemporary societies that embrace democratic principles. But
they no sooner enacted these remarkable pages when they realized
that they needed amendments; thus the Bill of Rights was ratified
in 1791. Since then many other amendments have been passed as
the populace and its legislators gained knowledge of developing
personal and societal needs.
we focus only on the 20th century we observe many turnarounds,
evolutions and other changes. In 1917 Congress passed the 18th
amendment, ratified in January of 1919, prohibiting use of alcohol.
Then, in rebus inane, after chasing smugglers and bootleggers,
crashing tens of thousands of speakeasies, and initiating a
huge escalation in organized crime throughout the nation, the
legislators went back to the drawing board, rescinded their
mistaken thinking, finally putting to an end 15 years of chaos
dubbed the "roaring twenties." Also in 1918 Congress
caught up with European egalitarianism and passed the 19th amendment
giving women the right to vote.
It is presently
in the U.S. Supreme Court nomination process where the terms
‘originalism’ and ‘originalist’ have
been bandied about by recently elected officials who know little
about the narrowness and vacillation in key Supreme Court decisions
as the following illustrate:
In 1857, the Supreme Court enacted the infamous Dred Scott decision
known by every schoolboy, which declared that negroes were inferior
to whites -- arguably the low point in the history of the court.
This decision was overturned by the 13th and 14th amendments.
In 1896, in what is one of the most unimaginable rulings in
the Court's history, the judges enacted Plessy vs. Ferguson.
This decision legitimized the incredulous segregation ordinances
and laws in racist southern states and made segregation legal
throughout America. The court defined "race" as
either black or white and instantly dissolved the entire Creole
population in southern cities. It wasn't until 1954, in Brown
vs. Board of Education, and in 1956 in Browder vs. Gayle that
the court eventually eliminated segregation in schools and
In 1883, in Pace
vs. Alabama, the court ruled it illegal to have marriage between
races and this decision wasn't reversed until Loving vs.Virginia
which finally legalized miscegenation.
One of the most
laughable rulings was Bowers vs. Hardwick in 1986 which effectively
outlawed "abnormal" sexual activity in one's own
home! The rapid reversal came in Laurence vs. Texas which
finally ended the snickering in 2003.
its history the Supreme Court has enacted dozens of decisions
reversing earlier court actions on the amendments which changed
the original thinking of the framers. And yet presently the
concept of ‘originalism’ is being lauded as some
sort of sacred cow and the court’s history of change is
most recent and most controversial Supreme Court ‘originalist’
thinking comes from justices Antonin Scalia and Clarence Thomas
who both dissented in the Laurence vs. Texas fiasco. They have
expostulated on their decisions with statements exemplifying
their irrational philosophies:
"[There's] the argument of flexibility and it goes something
like this: The Constitution is over 200 years old and societies
change. It has to change with society, like a living organism,
or it will become brittle and break. But you would have to be
an idiot to believe that; the Constitution is not a living organism;
it is a legal document. It says something and doesn't say other
things . . . "
believed that legal documents occupy the very top rung of reality
transcending epistemology, biological evolution, gender evolution,
evolving and hard fought racial and social norms, emerging mathematical,
physical, and chemical discoveries and laws, and the aforementioned
legal transformations of the last 2500 years. In sum, Scalia
placed the words of the framers of 200 years ago beyond the
scope of any reasonable thinking. He insisted that Supreme Court
decisions were to be made in an impenetrable vacuum of words
and syntaxes which could never be changed.
Scalia mused that flexibility does in fact exist in the legislative
process. "You think the death penalty is a good idea? .
. . persuade your fellow citizens to adopt it. You want a right
to abortion? Persuade your fellow citizens and enact it. That's
flexibility." But with his history of judicial intransigence,
Scalia ignored the implications of his own statement. Whenever
‘flexed’ legislation came to his desk no matter
how sensible, he would decide against it based on his narrow
“Let me put it this way; there are really only two ways
to interpret the Constitution – try to discern as best
we can what the framers intended or make it up. No matter how
ingenious, imaginative or artfully put, unless interpretive
methodologies are tied to the original intent of the framers,
they have no more basis in the Constitution than the latest
football scores. To be sure, even the most conscientious effort
to adhere to the original intent of the framers of our Constitution
is flawed, as all methodologies and human institutions are;
but at least originalism has the advantage of being legitimate
and, I might add, impartial."
assumption is that the correct tying of interpretations to ‘the
original intent’ can only be made by some static originalist
such as himself.
more enlightened rhetoric on the subject came from Oliver Wendell
Holmes in an opinion he rendered in the 1920 decision Missouri
regard to that we may add that when we are dealing with words
that also are a constituent act, like the Constitution of the
United States, we must realize that they have called into life
a being the development of which could not have been foreseen
completely by the most gifted of its begetters. It was enough
for them to realize or to hope that they had created an organism;
it has taken a century and has cost their successors much sweat
and blood to prove that they created a nation. The case before
us must be considered in the light of our whole experience and
not merely in that of what was said a hundred years ago."
Wilson offered the following:
is a living organism and must obey the laws of life, not of
mechanics; it must develop. All that progressives ask or desire
is permission -- in an era when "development," "evolution,"
is the scientific word -- to interpret the Constitution according
to the Darwinian principle; all they ask is recognition of the
fact that a nation is a living thing and not a machine."
Trump’s nomination of Neil Gorsuch to the court was made
solely on the basis of his ties to Scalia’s ‘originalist’
thinking. Certainly Trump has never exhibited even the slightest
awareness of the court’s historical fluctuation and its
retracing of flawed rulings. Interestingly, Gorsuch’s
vetting has revealed evidence of demonstrated judicial expertise
beyond any pattern of originalism and Trump’s nomination
of him may actually prove to have ironical consequences.