The late Supreme Court Justice Antonin Scalia was insistent that he was an advocate of something he called “originalism” in reference to the interpretation of the U.S. Constitution. The term can be slippery: it seems to be as open to individual interpretation as many of the cases that come before the court. In the broadest possible terms, it is said to be a standard for interpretation of the Constitution by attempting to understand clearly what the words of the Constitution meant to the Founding Fathers at the moment they put them to paper in the document. Scalia, in particular, expounded his view (as quoted in Wikipedia–hey, I’m not writing a legal treatise here) that
“If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” (Scalia’s own words, from a speech at the Catholic University of America in 1996. See the Wikipedia article on Originalism, footnote 21.)
I am no legal scholar. I am not even a lawyer, and in truth, I’m going to take a Scalia-like stand and say that I don’t care whether I persuade you of what I’m about to say or not, but it seems to me (and you are as always free to disagree with whatever vehemence you choose) that this method fails in many cases to take into account the evolution of basic human rights and the evolution of the United States itself. The originalist, textualist arbiter is locked into the “original” meaning of the words–no matter that there is room for disagreement between two such interpreters or among all nine Justices of the Supreme Court.
A couple of glaring examples of how the Constitution did, in fact, evolve are illustrative. The original text of the Constitution recognizes slavery as a fact, and even lays out that each slave in a particular state shall count as 3/5 of a “person” for the purposes of apportioning members of Congress–even though those slaves were not accorded the right to vote by the original text. Thus a free white man voting in Virginia had far more clout than one voting in Massachusetts, who was voting only for himself, and not any number of census-inflating, but non-voting slaves. All women were completely disenfranchised.
Slavery in the United States became unconstitutional (thus, illegal) with the ratification of the 13th Amendment in 1865. Then, as now, ratification required the assent of 3/4 of state legislatures; the 13th took effect once this number was achieved, with several other states following in subsequent sessions. Interestingly, Kentucky did not ratify on first consideration; it rejected ratification, though it did fall into line– in 1976(!) Mississippi has never ratified it to this day.
The 15th Amendment prohibited the denial of the right to vote to any person on the basis of color or previous condition of servitude (in other words, states were no longer allowed to bar voting based on race or by restricting the rights of former slaves). The amendment went into effect upon ratification by the required number of states in 1870, but a few states were slow to ratify (Delaware, 1901; Oregon, 1959; California, 1959; Maryland, 1973; and Kentucky, again, in 1976. Tennessee never did ratify this one.
The 19th Amendment finally got around to giving women the right to vote. Many citizens would be surprised to know that this amendment’s ratification finally took effect only in 1920. No state failed to ratify, but late ratifications from 1952 to 1984 (yes, 1984) included Virginia, Alabama, Florida, South Carolina, Georgia, Louisiana, North Carolina, and Mississippi, with Mississippi again bringing up the rear as the 1984 ratification.
If I were to hold originalists to a strict, rigid standard for these obvious failings in “original intent” as laid out in the wording of the original Constitution, they would probably reply, as Scalia often did, that these were remedies that took place through legislative (i.e., political, rather than judicial) processes, and that such processes were recognized and laid out in the original content of the original document. In the narrowest sense, this is 100% true, but that leaves open the question of whether the institutionalized injustices in the original document were just oversights, which came to light later and were corrected in a timely fashion. You might even agree. I don’t.
It appears evident that even the Founding Fathers were hamstrung in some instances by politics, and that they made compromises (Who knows how willingly?) in order to get agreement and support from each other. In some instances–the quartering of soldiers without the assent of the property owner, the prohibition was absolute, English common law precedents be damned. In others, as shown above, an enlightened, “justice for all” approach would not have carried the support of many of the representatives of the states that depended on slavery for their economies. (Virginia, was, at the time, one of the largest and most prosperous states as well as home to thousands of slaves, whose labor supported large plantations of tobacco or cotton.) Women were basically, in a legal sense, property at the time of the original Constitution, and the document the Founding Fathers produced reflected that status. The cited provisions of the original framework were, to be sure, eventually corrected to more enlightened ones, but what comfort is that to thousands who never were “given” the rights we all take for granted today?
The “originalist” position serves as a starting point, to be sure. It enumerates certain rights to be reserved for individuals, others for states, and others for the only government that represents all of the above, the federal government. But, as we often heard in the 20th century, “states’ rights” was often little more than a smokescreen for withholding individual rights from some. No interpretation of the Constitution should be allowed to perpetuate that. Today we see several states trying to suppress the rights of some to vote, a continuation of restrictions that transparently disenfranchise some so that others could continue to shape their states’ laws to reinforce their own hold on power.
I have wandered far from my starting point, but Justice Scalia will be the subject of another post, soon. I think, as I am sure many others do, that his expressed philosophy on many controversies served his own philosophical/religious leanings, not the Constitution or the people of the United States. More later.