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Originalists Cherry-Pick When Interpreting Constitution

By Allen Snyder  Posted by Rob Kall (about the submitter)     Permalink
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August 17, 2005

With BushCo 's recent Supreme Embarrassment nomination has come renewed discussion about constitutional interpretation. While lobotomized regressives are salivating over the Roberts nomination, lefties are rightfully worried that another Scalia/Thomas-type Injustice may seriously harm the nation 's social fabric for decades.

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The deeper ideological battle is between competing schools of thought regarding constitutional interpretation. Lefties typically subscribe to the 'living constitution ' view which holds that the meaning of the text should grow and evolve with society, considering "the evolving standards of decency that mark the progress of a maturing society " (Trop v Dulles; 1958).

Regressives tend toward one of three basic views, whose differences are quite subtle. What they all share is a vision of the Constitution as static and unchanging in meaning and a harkening to the past that is one of the hallmarks of the regressive neurosis. (Note: while its probably true that not all regressives are originalists or strict constructionists, all originalists and strict constructionists are probably regressives).

First, there are the 'strict constructionists ' like William Rehnquist who believe the Constitution means today what its words and phrases meant when they were first written down by those who drafted and ratified it.

Next, the so-called 'originalists ', like Scalia and Thomas. Originalism comes in two forms. One, called 'original intent ', maintains that interpretation of the constitution should be consistent with what it was originally intended to mean by those who drafted and ratified it.

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The other, called 'original meaning ', is the view that interpretation of the constitution should be based on what it would commonly have been understood to mean by reasonable persons living at the time of its ratification.

Call me another nit-picky, anal retentive, whiny progressive, but if the devil 's in the details, it won 't take but one seemingly innocuous example, in the form of a glaringly unambiguous case of interpretation, to cast some serious doubt on the motives of these self-appointed constitutional preservationists.

I speak, of course, about Article II, Section I of the US Constitution wherein the qualifications and manner of election for the President are laid out including the Presidential Oath of Office.
Check out the business portion of this section:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: - "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States. "

This is the actual text of the US Constitution look it up for yourself if you don 't believe me. Notice what 's missing? That 's right whenever the President-elect takes the Oath, he adds a little something to the end of this - "so help me God ". But, alas, "so help me God " is not a part of the Oath. How is a good strict constructionist or originalist to deal with this? Why, they just ignore it, of course. And for good reason.

If, like 'strict constructionism ' maintains, the Constitution means now what it meant then, it 's clear it means, "say the Oath as printed if we wanted God in there, we 'd have put him in there ".

If, like 'original intent ' maintains, the Constitution means what those who wrote it intended it to mean, it 's clear it means, "say the Oath as printed if we wanted God in there, we 'd have put him in there ".

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And if, like 'original meaning ' maintains, the Constitution means what a reasonable person then would have thought it meant, it 's clear it means, "say the Oath as printed if we wanted God in there, we 'd have put him in there ". A reasonable person of that day might not have liked or agreed with that meaning, but they certainly would 've gotten it. The same goes for swearing on the bible if they wanted Presidents-elect to do that, they 'd have put that in, too. But, of course, they didn 't.

So my question is, why aren 't the originalists up in arms about Presidents-elect adding something to the Constitution that wasn 't expressly written into it by guys who were ever-so-aware of what they were doing when they wrote it? Why is there no movement on to prevent them from saying 'so help me God ' or placing their hand on the bible? Why aren 't regressives all over this like a cheap suit? It 's unconstitutional according to the very philosophies regressive interpreters support, and yet not a peep. Why not?

Because being a constitutional preservationist, strict constructionist, or originalist has sh*t to do with interpreting the Constitution. It 's about turning back the clock on defending the rights of individuals, women, minorities, and the environment. It 's about placating big business, religious zealots, angry white men, and loony social regressives. It 's about doing away with regulations that provide for a safe workplace, eliminating limits on pollution and the defiling of the natural landscape, ending affirmative action, ending campaign finance limits, allowing prayer and bible crap in public schools, posting the ten commandments, bringing back discrimination and segregation, criminalizing homosexuality, and reducing the power of the legislative branch while exalting that of the executive (as long as he 's a regressive).

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