Friday, April 21, 2017

Resolved: Founding Father and Constitutional Framer James Madison Was Not an Originalist, and Would Not Have Voted for Neil Gorsuch

Supreme Court Justice Neil Gorsuch and President Donald Trump 
Some of my best conservative friends are defending "originalism," the tired notion espoused by new Supreme Court Justice Neil Gorsuch and others that the United States Constitution is not a living, evolving document. This is of course nonsense. 

Harkening back to my college debate days, allow me to don my cob-webbed, dark-blue blazer and resort to some unfair tactics (appealing to your patriotism) to cement my point.

It was none other than James Madison, loving husband of Dolly and one of our country's cherished founding fathers, who said at our nation's Constitutional Convention that in framing a system which we wish to last for the ages, "we should not lose sight of the changes which ages will produce.”

You go, James! And no, he wasn't referring to the Constitutional amendment process, which is cumbersome and very, very difficult to do.

The great irony of the current originalism debate, or perhaps it isn't irony at all, is that many of our founding fathers were clearly not originalists, as far as we can tell. Madison outspokenly supported the idea of a living and flexible US Constitution, one that changes over time.

Why? Because it's what is right and decent, and because it is the only thing that makes sense. 

The US Constitution is the greatest framework for democracy in the history of the world. But viewing this document as inflexible, while interesting in theory, is silly in practice. 

It just doesn't work, and it's preposterous to suggest otherwise. Scalia and Gorsuch? Both dead wrong on this issue. It just can't be wisely or convincingly argued in their favor.

The document, which was written centuries ago exclusively by and for white, male property owners, many of whom owned slaves, has an obviously and inherently biased outlook. It is a good guide, the best, in fact, but it should not be taken verbatim all these hundreds of years later.

The proof of the inherent dangers of originalism is inadvertently but very obviously revealed by just who supports it. 

Who more than anyone else wanted Gorsuch to be the newest member of Team Robe, also known as SCOTUS? People who were literally praying for his nomination, that's who. 

Yes, folks who want to impose their religious values and beliefs and interpretation of God on the rest of us. 

I greatly respect everyone's beliefs, but forcing the on people is not what America stands for. In fact, many of the founding fathers were not Christians at all, they were Deists.

As legal and Constitutional scholar Andrew Shankman wrote recently, Madison’s framework demanded that the American people "maintain their right through time to be the final arbiters of constitutional meaning through popular politics and the thoughtful expression of public opinion."

Legal scholar David Strauss recently said, "Originalists simply do not have an answer to Thomas Jefferson's famous question: why should we allow people who lived long ago, in a different world, to decide fundamental questions about our government and society today? Originalists do not draw on the accumulated wisdom of previous generations in the way that the common law does."

Indeed. David nailed it. 

He added that originalism "forbids the judge from putting those views on the table and openly defending them. Instead, the judge's views have to be attributed to the framers, and the debate has to proceed in pretend-historical terms, instead of in terms of what is, more than likely, actually determining the outcome."

So, in closing, and in honor of my old college debate coach, I say, Resolved: Originalism in 2017 is simply a more palatable term for judicial activism! And/or, Resolved: A living, evolving interpretation of the US Constitution is a must in a free society!

I could argue for both, until the cows come home.

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