Wednesday, October 28, 2020

Originalism ...

The actions of the esteemed Mitch McConnell, beginning with his not allowing Merrick Garland, a jurist respected on both sides of the asile, to appear before the senate based on his rabid hatred of Obama “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’ “ and ending with Amy Barrett being rapidly rammed through just days before the election without getting all the facts needed to learn more about this marginal person, says it all about Mitch, who should have been impeached and removed from office on the Merrick Garland fiasco but ... as my loyal readers know, this is not just about these issues but rather on why originalism fails on all counts regarding the Constitution and how it applies to law, is.

The intellectual dishonesty of many originalists is exposed by their reluctance to follow their own logic regarding certain landmark cases, now widely recognized as milestones in our national progress toward “a more perfect union.” The easiest examples are Brown v. Board of Education and Loving v. Virginia, the former concerning school integration, the latter, interracial marriage, illegal in Virginia until Loving in 1967. Both decisions explicitly fail the originalist test, yet Judge Barrett asserts they were correctly decided and endorses them as “super-precedents,” a convenient dodge that evades the troubling implications of her supposedly simple theory of constitutional interpretation.The real problem with the originalist theory is that it allows no room for ethical, moral, or political growth. If the Framers didn’t think it, it’s not allowed.

Thomas Jefferson, who wrote the Declaration of Independence and paid close attention to the drafting of the Constitution from his official post in France, understood this danger explicitly: “I am certainly not an advocate for frequent and untried changes in laws and constitutions,” he wrote in an 1816 letter addressing what he perceived to be weaknesses in the new government, “but … laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

In this writer's opinion, both originalism and Scalia's thought process are extremely marginal at best.

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