Monday, January 16, 2006
What's Wrong with "Original Intent?"
These Alito hearings, dull and uneventful as they were, have still excited me to think about constitutional interpretation and doctrine. Here are a few random thoughts:
The constitution gives the power to appoint judges to the President, "with the advice and consent" of the Senate. It does not stipulate that that advice and consent is to be expressed as a simple majority vote. The purpose of the phrase was to provide a check on the absolute power of the Executive to appoint judges.
The constitution is full of limitations on what the President and Congress may do. These limitations were inspired by actions that the British government had done in past centuries. The colonists came from a country with a monarch with absolute power and an absolute veto on any legislation he didn't like. The only check Parliament had on the King was the power of the purse. Parliament could not prevent the King from waging war on France or Spain or even on one of his political opponents in England. It could only refuse to appropriate funds to prosecute the war. If the King could find other sources of revenue, he could go ahead with his unpopular war and there was no way to stop him.
The American constitution writers stipulated that Congress, not the Executive, could declare war. It stipulated that the Executive (i.e., President) did not have an absolute veto on legislation but that Congress could override his veto with a 2/3 majority in each chamber.
All of the other rights specifically mentioned in the constitution were put there to prevent things that the English absolute monarchy had done. All of the limits on the power of Congress and the President were put there to prevent certain things that the English government of George III had done to the colonists.
But you know all of this. You learned it in high school. Antonin Scalia learned it in high school, also. So did Clarence Thomas, Samue Alito, and a flock of other federal judges who now pay homage to the doctrine of "original intent" of the framers of the constitution in discerning how its prohibitions apply to present-day conditions and more recent abuses of government power.
Does tapping your telephone line or opening and reading your mail amount to "unreasonable search and seisure?" There isn't a single word in the constitution about telephones or about searching mail. Was the original intent of the framers to permit government to do anything except that which was specifically forbidden? Was the original intent to grant to the people only those rights specifically listed in the document, as amended from time to time? On the other hand, does the Ninth Amendment grant a veritable universe of civil rights to the people? Or to the states?
Case in point: In 1787 anyone who wanted to could grow hemp (i.e., marijuana) for personal use or for sale. The words "hemp" and "cannabis" and "marijuana" do not appear in the constitution. Does government have the constitutional authority to forbid the growing and use of cannabis? It seems to me that "strict interpretation" would deny government the authority to prevent me from growing and using pot.
My case is that "original intent" is a lie. Conservatives who claim to follow "original intent" do so only to achieve conclusions that they like. Claims that a good judge does not and should not consider the likely results of his or her interpretation of constitutional law are phony. We must keep in mind that our representative form of government is an experiment. The constitution is a means to the end expressed in its preamble and not an end in itself. In practice, results count for more than the legal theories that produce the results. It is a very poor judge indeed who ignores the likely results of a decision.
As you all can see, I am not a legal expert. Any high school kid could have written this post.
The constitution gives the power to appoint judges to the President, "with the advice and consent" of the Senate. It does not stipulate that that advice and consent is to be expressed as a simple majority vote. The purpose of the phrase was to provide a check on the absolute power of the Executive to appoint judges.
The constitution is full of limitations on what the President and Congress may do. These limitations were inspired by actions that the British government had done in past centuries. The colonists came from a country with a monarch with absolute power and an absolute veto on any legislation he didn't like. The only check Parliament had on the King was the power of the purse. Parliament could not prevent the King from waging war on France or Spain or even on one of his political opponents in England. It could only refuse to appropriate funds to prosecute the war. If the King could find other sources of revenue, he could go ahead with his unpopular war and there was no way to stop him.
The American constitution writers stipulated that Congress, not the Executive, could declare war. It stipulated that the Executive (i.e., President) did not have an absolute veto on legislation but that Congress could override his veto with a 2/3 majority in each chamber.
All of the other rights specifically mentioned in the constitution were put there to prevent things that the English absolute monarchy had done. All of the limits on the power of Congress and the President were put there to prevent certain things that the English government of George III had done to the colonists.
But you know all of this. You learned it in high school. Antonin Scalia learned it in high school, also. So did Clarence Thomas, Samue Alito, and a flock of other federal judges who now pay homage to the doctrine of "original intent" of the framers of the constitution in discerning how its prohibitions apply to present-day conditions and more recent abuses of government power.
Does tapping your telephone line or opening and reading your mail amount to "unreasonable search and seisure?" There isn't a single word in the constitution about telephones or about searching mail. Was the original intent of the framers to permit government to do anything except that which was specifically forbidden? Was the original intent to grant to the people only those rights specifically listed in the document, as amended from time to time? On the other hand, does the Ninth Amendment grant a veritable universe of civil rights to the people? Or to the states?
Case in point: In 1787 anyone who wanted to could grow hemp (i.e., marijuana) for personal use or for sale. The words "hemp" and "cannabis" and "marijuana" do not appear in the constitution. Does government have the constitutional authority to forbid the growing and use of cannabis? It seems to me that "strict interpretation" would deny government the authority to prevent me from growing and using pot.
My case is that "original intent" is a lie. Conservatives who claim to follow "original intent" do so only to achieve conclusions that they like. Claims that a good judge does not and should not consider the likely results of his or her interpretation of constitutional law are phony. We must keep in mind that our representative form of government is an experiment. The constitution is a means to the end expressed in its preamble and not an end in itself. In practice, results count for more than the legal theories that produce the results. It is a very poor judge indeed who ignores the likely results of a decision.
As you all can see, I am not a legal expert. Any high school kid could have written this post.
