Constitutional Originalism Is Activism And Radicalism

Constitutional Originalism is the idea that nothing good happened to this country after about 1815. So in other words, it's radically stupid.

When it comes to the Constitution, much is left to interpretation.

Some, for instance, believe that the document should be rigidly interpreted only in the context of the century it was written in, much like it is still considered wise practice these days to pray away dark spirits instead of seeing a doctor, and why we all still drive horse and buggy carriages around our cobblestone streets. We call those people “constitutional orignalists,” because they only want our founding document interpreted in the context of when it was originally written.

You may have learned that the Constitution is a “living” document, and that’s because for the overwhelming majority of our country’s history, it really has been. It’s one of its strengths, that is rigid enough to need amendments when something major in our country’s foundation needs addressing, and yet malleable enough to let regular order — checks and balances — also give it and us much more flexibility. It took almost 150 years for women to get the right to vote, for instance, because it took the 19th Amendment, and many believe that both amendments and a “living document approach” are the best ways to balance a need for our government to be flexible, but also rigid in its core principles.

Originalists often claim that the people who view the Constitution as a living document are “radicals” or somehow don’t fundamentally understand our government. But it’s them that have a problem comprehending it all. Why? Because they insist stubbornly that our system of government was perfect before the Reconstruction Era, and they damn sure hate the New Deal era changes that have come about, even though a healthy portion of what FDR rammed through was ultimately ruled unconstitutional.

The truth is that over time our government has evolved, because as a society we have evolved. This is the natural order of things, and it’s why the founders made sure the Constitution could be changed at all. But it’s not like they only wanted it changed through amendments. That’s why we have clauses in the Constitution that delegate powers to Congress, to the people, and to the executive, and why there is berth within its margins, to cobble a functional government together without having to amend our founding document every five minutes.

If you think about it, there’s really nothing radical about saying, “Hey, this is 2017, not 1789, we should do X differently.” And there’s nothing at all radical about our laws changing over time. What’s radical is stubbornly refusing to admit that times change and people change. It’s radical to insist we go back to interpreting things the way white, elitist, slave owning men viewed things. We don’t have to dump everything they stood for out on the pavement and shit on it, but it makes absolutely no sense to frame every single legal discussion around what men dead for nearly 150 years think about a problem they couldn’t even really get their heads around to begin with.

In the time since its ratification, we’ve had one civil war, two world wars, ended slavery, given women to vote, seen the proliferation of electricity and indoor plumbing, given marriage equality to everyone regardless of their sexual orientation, gotten to the goddamned moon, and invented this thing called the Internet. There are certainly universal things that apply as much now as they did back then, but in a very real sense, the world we live in now looks almost nothing like the world our country was founded on.

And that, of course, was the purpose of the Constitution — to grow and adapt over time as needed.

I’m a big fan of amendments. If we’re talking about a true paradigm shift, then I think they’re really important. But they can also be used to slow down progress. They can be used to block equality. That’s, simply put, fucking stupid. We shouldn’t need a constitutional amendment to tell men they don’t get a say in a woman’s reproductive decisions. That’s pretty much fucking common sense, but if you ask a conservative, we should have gotten an amendment instead of the Roe v. Wade decision being the law of the land.

I wonder if there was an issue conservatives wanted addressing, needed addressing even, and liberals told them they had to just sit it out and wait for enough support for an amendment to be passed, just how they’d feel about it. Something tells me there’d be a lot fewer originalists running around than now, that’s for sure.

It’s absolutely radical to demand society return all the progress of the last 100 years or more. To pretend otherwise is to be conservative. To further pretend that conservative judges on benches from the lowest local levels all the way to the Supreme Court don’t practice a form of extremism known as “constitutional originalism” is to be self-delusional conservative. Asking a society of people to move backward, when you just lost an election by 3 million votes — Electoral College nonsense notwithstanding, is the height of arrogance, or you know, conservatism, and I’m sick to fucking death of them not understanding that concept.

The whole notion that “activism” is only when you want something liberals would like is patently absurd. In 2017, it absolutely is an activist stance to insist we move backward into the 19th century. You can pretend it’s not, but you’d be a fucking idiot while doing so, fair warning.

Would you go to your barber for a surgical procedure? Look to cure your cold with leeches? Prepare for your back surgery with a big stick and some strong bourbon?

If you answered “Yes” to any of these questions…congratulations! You belong in another century, and you’re probably a constitutional originalist. So feel free to climb into Scalia’s casket and ride that fucker into Hell with him. The rest of us have an American promise to fulfill.





Follow James on Twitter @JamboSchlarmbo.



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