Originalism doesn’t work

Originalism doesn’t work

I have a simple take on the pending SCOTUS nomination.

The concept of originalism that this truly underwhelming nominee inherited from her mentor — and my former law professor — Antonia Scalia is utter bunk. You don’t run a justice system based solely on the opinions of slave-owners in three cornered hats who lived more than 200 years ago. These wealthy and powerful white men may have written the Constitution, but the far larger, diverse, and more radical group that ratified the Constitution in the 13 original legislatures have equally valid and wildly differing interpretations. Whose opinions should be considered, the drafters or the ratifying legislatures, and why should either matter?

As Aharon Barak, the former president of the Israeli Supreme Court, once observed, “We do not psychoanalyze legislators, we analyze legislation.”

Note that Native Americans, Blacks, women, and working people were not represented by the wealthy oligarchs and lawyers who attended the 1787 constitution convention in Philadelphia. Not once are the interests of these groups mentioned in Madison’s notes on the convention, although these constituencies represented as much as 2/3 of the US population at the time.

The Constitution that resulted was fatally flawed, and four score and seven years later, our nation fought a horrific civil war setting brother against brother, largely but not entirely over the subject of minority rights. This war cost a half million lives and the victory of the North changed everything about our society — socially, legally, politically, and constitutionally.

Hence we are today the country of Lincoln far more than we are the country of the little cabal of Founding Fathers, and our constitution is a living, breathing guide, not something to be manipulated by originalist justices who pretend in 2020 to have some kind of magic legal Ouija board that enables them to divine the intentions of men who lived in 1787 — men who never had the slightest inkling of the problems our legal and political system are facing today.

Blind originalism, like religious fundamentalism, is the enemy of modern American life, not conservatism, which like liberalism has a time-honored place in our political discourse.

The current nominee should be rejected for the simple reason that she slavishly follows a legal philosophy that is turning our Constitution into a dead letter that will suppress our democracy, not enliven it.

The nation we live in today was rescued by the valiant men and women who supported the Union, not the Proud Boys and their Confederate predecessors. It must be understood that there were consequences that flowed form the fact that the Union, not the South, won the war. The war aims of the North, as eloquently declared by its commander in chief, should be our national polar star, not those of the founders of the failed state that Lincoln rescued.

In seeking a way out of our current national crisis, I commend to you Lincoln’s concise statement of war aims that he delivered in Gettysburg, and then tell me whether the current Supreme Court nominee’s originalist interpretation advances — or is a detriment to — the fulfillment of those lofty aims.

Here is what Lincoln said:

“Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

“Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure….

“It is …. for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”

To which I add the stirring words from the book of Samuel:

“Hazak! Hazak! v’Nitzhazek!”

“Be strong! Be strong! We will be strengthened!”

Adam Brown of Englewood is a lawyer and strategic planner who serves on many municipal and nonprofit boards and commissions and has been active in promoting Jewish education and Israel scientific research.