Should “originalism” be a litmus test for nomination to the U.S. Supreme Court? The late Justice Antonin Scalia is famous for defending the doctrine.
Originalism is the doctrine that the U.S. Constitution today should mean exactly the same thing intended by the Founders. This doctrine may sound familiar. It is similar to the religious doctrine that the Bible or Koran should be interpreted by their author’s intent.
In a democracy with freedom of speech, the memory of Scalia is honored when “we the people” debate the wisdom of his doctrine.
1. Surely we can agree that the authors of the Constitution were not God or his prophets. In fact, some were infidels. Aware of their own proneness to error, the Founders included two procedures for changing their fallible words: amendments, and constitutional conventions, which have the power to propose a totally new Constitution.
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2. The Constitution was the result of compromise. Without compromises, a majority of the original states would have rejected it.
Compromise is why the Constitution permitted slavery, denied voting to women, and gave ill-defined powers to the states, such as the right to secede from the union. As a result, the states engaged in a great Civil War — a war, like all wars, fought by “we the people.”
A century later, the people engaged in protests, rioting and murder in the streets to get such basic rights as voting, owning a business, going to school, marrying the person one loves, and not fighting in another bad war.
3. The Founders modeled the Constitution on business charters. So say the historians. The king of England gave these charters to the Massachusetts Bay Company and other stock-owned corporations.
Congress was to function like a board of directors. State legislatures, not the people, elected senators and, through the Electoral College, the president. The House of Representatives was a compromise to appease the bigger northern states. The big states wanted greater representation and more power in Congress, not the equality imposed by two Senators per state.
Wealthy Americans, of whom George Washington was one, had the most taxes to pay. Is it surprising Washington was willing to go to war to avoid paying taxes to England? Or that he willingly served as president of the new board of directors?
The Constitution was a document of the rich, by the rich, for the rich. The U.S. has always been a nation ruled by the wealthy. Change has come slowly and at great cost to the people. So say historians.
4. Times change. Unlike God, the Founders did not know the future. Knowledge, science and technology have exploded beyond anyone’s wildest dreams. Computers, genetics and atomic physics are changing almost everything. Some old ideas are still good, but some are outdated.
Why should the prejudices and biases of flawed Founders control people today? In a democracy, the voters should decide — the voters today, not centuries ago.
Does “rule by consent of the governed” include voters today? Today, the rich control taxation and elections by propaganda, fake news, ownership of media, and bankrolling candidates.
We need campaign finance reform. We need health care and insurance for everyone. And fair treatment by the police, not just for the rich in their walled-off neighborhoods and high-rise towers. Taxation of the rich should be at the same rate as taxation of the poor.
Why should “we the people” continue to be ruled by the wealthy 1 percent? Why should anyone be president who does not get a majority of the people’s votes?
Jack Weir is professor of philosophy at Morehead State University.