Friday, July 08, 2005

What Would Jefferson Do?

Beware the Originalists!
As everyone knows by now, Supreme Court Justice Sandra Day O'Connor has given George W. Bush her letter of resignation. Most people were expecting that cancer patient and Gilbert and Sullivan wannabe William Rehnquist would be the next one, and that it would not be that big a deal. Renquist has been very right wing, and replacing him with another very right wing judge would not substantially alter the balance of power on the court. But O'Connor, far from a flaming liberal, has often been seen as a swing vote, a relative moderate compared to the (expletives deleted) like Thomas, Scalia, and Rehnquist.

Finally, it is starting to seem real, the possibility that the forces of control and exploitation will run amok in America. It's like some sort of cartoonish nightmare you just don't believe will really come true. Most of the names bandied about in the media are men in their fifties, so Bush looks to impact the future for a long time. At least one, if not two more justices are likely to retire before the reign of W is supposed to end.

So there I was, watching Fox News, which I sometimes like to do just to see what the Evil Empire is up to. Usually I end up screaming at the TV, and can only take so much. The extremely biased Hannity and Colmes show was on, but I started hearing a term I have not heard before: originalist.

You've probably heard the phrase "judicial activist" before, and it's another of those ridiculous terms people bandy about, and expect you to believe them. Usually it's used to describe so-called 'liberal' judges, even though the majority of judges tend to be Republican. Someone from the National Organization of Women was actually referring to some of the more conservative members of the courts as 'judicial activists' and some other talking head started talking about the 'originalist' member's of the court. describes originalism as
The belief that the U.S. Constitution should be interpreted according to the intent of those who composed and adopted it.
My BS detector circuits immediately activated, and I started googling 'originalist' in the news area, and found the judicial equivalent of religious 'fundamentalist.' Here we find people who seem to draw the line as a struggle between literal readings of the texts of the Constitution, and the wishy-washy liberals who look at the Constitution as a 'living document' that can be twisted into any form they wish. If you look at it their way, hey, I'd be an originalist too! But like most Orwellian doublespeak, once you buy this premise, you're lost.

In Christianity, the term 'fundamentalist' implies one is firmly rooted in basic truth, but in reality, it's more of a practice of selective literalism, reducing what should be a deeply spiritual book to a two dimensional amalgamation of ink and paper. Even the conceit that one is capable of a fundamentalist understanding of the Bible is flawed, and any communication of ideas in print involves levels of personal interpretation to make any sense out of what we read. In the Four Quartets, T. S. Eliot wrote:
Words strain,
Crack and sometimes break, under the burden,
Under the tension, slip, slide, perish,
Decay with imprecision, will not stay in place,
Will not stay still.
TSEEliot considered himself a fundamentalist, yet he clearly understood the problem of communicating from one person to another. In the very first page of the Four Quartets, he says:
My words echo
Thus, in your mind.
But to what purpose
Disturbing the dust on a bowl of rose-leaves
I do not know.

If it's that hard to communicate with someone in the same time frame, how can we presume to know what was in the mind of 'the framers' over two hundred years ago, not to mention thinking about who wrote the Bible a couple of millenia ago? The real missing term here is 'transcendent.' A document as important as the Constitution (or the Bible for that matter) needs to anticipate future needs, and not just leave us out in the tough-luck cold. It needs to transcend current events. I think this is logical, especially since the Constitution was setup with a very high bar to reach, if you want to make an amendment.

The Framers, as they are often referred to, were revolutionaries at the time, and yet the originalists take their names in vain, almost always to support reactionary views. There will never be an ironclad way to know what they would have thought about gay rights or abortion, but they were definitely pushing the envelope at the time. It's hard to imagine that given another 80 years to evolve, that these same revolutionaries would not have seen their inconsistencies in the original document that were so careful about preserving individual freedoms, yet slaves were only counted as 3/5 of a person. The fact that the Fifteenth Amendment had to be created reflects the originalist point of view, that since slavery existed at the time, it would exist forever unless the Constitution was amended. I'm no historian, but I understand that Jefferson owned slaves, yet opposed the slave trade. I find it hard to believe that the same Jefferson, if born a couple of centuries later, would cleave so tightly to keeping things in the status quo. Sometimes it just takes time for the fog of "the way it's always been done" to clear, and we see the obvious.

Although it's probably too late to wrap up what has been a typical rambling Geoff-rant, here's the point of all this talk about 'originalists:' Because the framers did not specifically mention privacy, or many other specific fruits of the tree of freedom, a Supreme Court packed with these throwbacks will roll back a generation of freedoms with no more than a "if you don't like it, amend the Constitution" in our faces.

The only way to block this from happening is for people in the states that have Republican senators, but a pro-choice majority of voters, to lean heavy on their senators. It's too late to talk about the 2006 elections; the time in now. For those of us here in the 'blue states,' it's frustrating. I guess we can support the movements in the'red states.'

I'll end with the words of John McCain, from a New York Times article:
Of course, Mr. McCain said, President Bush's nominee will be a conservative. "He campaigned for re-election and made no bones about the fact that it would be a conservative nominee," Mr. McCain said. "Elections have consequences."


Ric said...

Well said, by and large, but effective? Eliot's words might well be emphasized to illustrate how hard it'll be for those originalist/readers of yours to get your message!

Geoff Gould said...

Communication is a dicey proposition indeed. In fact, it's somewhat an act of faith just to believe we have the possibility of reaching each other with words. In a world where solipsism seems to be the main disease, we have to hope we can reach each other.

Rob Turner said...

I'd like to make an intellegent comment about this, but I find this predicament so disgusting it makes me want to upchuck.

First we get a president who's about as wise as a piece of lumber, then he gets the keys to the kingdom.

Let's just secede and get it over with.

The Old Hippie said...

It is not as much a rant, as it is a studied realization.  With the warning fear of reality being described.  I feel that there is a true rant inside you, just jonesing to unleashed.

mshray said...

Well I am an historian, and I can tell you one thing. Jefferson was deeply distrustful of large, powerful centralized government, and would be spinning in his grave if he were aware of how the Executive Branch was now able to stack the Supreme Court. The Supreme court was seen by him as the ultimate protector of the rest of us from the abuses of the Executive, but now it can be set up to further the agenda of the Executive. This subverts the whole structure that the Founders had imagined.