Everywhere I go I find a pal
Peter Weinschenk, Editor, The Record-Review
My son, Guthrie, the attorney, lent me his constitutional law textbook and I’ve had some fun researching originalism, the judicial philosophy of Amy Coney Barrett, who is on track to join the U.S. Supreme Court.
Originalism is the view that the Constitution is not a “living document,” but is dead, such that the document’s words mean only what they did back in the nation’s founding. Under this view, the constitution is best understood by researching historical documents, such as the Federalist Papers.
To me, this view doesn’t work. If you want to understand the Constitution, don’t run to a historian. Visit a linguist instead.
Let’s take the glorious Preamble to the Constitution: We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
Do we, as the originalists would instruct us, take the phase “we the people” to mean only that 3.9 million white people living in America in 1787, not the current population of 382 million? This seems an extreme view and misses the preamble’s rhetorical power. It makes more sense to me to say that “we the people” refers not just to that founding generation, but also to people living today. The phrase tells us that the act of self government refreshes itself generation after generation.
Originalism was born in reaction to the Warren Court that was accused of manufacturing constitutional “rights” to advance a liberal agenda.
Thus the late Antonin Scalia, a famous originalist and judge Barrett’s mentor, argues in the pivotal abortion case, Casey v. Planned Parenthood, that the constitution can’t be said to guarantee a privacy right because such a right is not enumerated in the Constitution and, going back to the days of the founders, was never recognized by society.
Guaranteeing a right to “personal autonomy and bodily integrity,”, he argues, means the court should not just guarantee the right to abortion, but also bigamy, incest, sodomy and suicide.
Scalia says that, perhaps, people in America should have a right to all of these behaviors, but this is a decision for voters in the states.
Scalia is a great writer, but, in the end, not persuasive. In the first place, the fact that the Constitution does not list a right does not mean that the people do not have it. This is the whole point of the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”). Second, it is fundamentally unAmerican to call on voting majorities determine the fundamental rights of citizens. The central feature of American democracy is to protect the rights of minorities against majority rule.
I am no lawyer, just a humble reader of important case law. What I see is both “liberals” and “conservatives” on the court marshalling theories of interpretation to make it look like judges aren’t making things up as they go along. But they do. So, for instance, Judge Scalia invents a “right of association” in Boy Scouts of America v. Dale that gives the organization, contrary to New Jersey law, the right to exclude homosexuals.
I have an open mind about all of this stuff. But, basically, I’m a realist. I see politics.
Contact Peter Weinschenk at pweinschenk@ tpprinting.com