Originalism - A Constitutional doctrine without validity

In my last three commentaries I have been demonstrating how the doctrines propounded by the Right for judicial interpretation are fallacious and downright dishonest. I strongly urge my readers to reread these articles

I would also urge readers to read my analysis on the meaning of a Right wing Supreme Court which I published in October of 2005 under the title, “The Supreme Court - Consequences As New Appointees Shift Its Balance and the short add-on entitled, “The Debate About Supreme Court Nominees”

In these articles I demonstrated that the term activist judges more appropriately applies to the Right Wing of the court which strike down acts of elected legislatures with far greater frequency than the liberal judges and that “calling balls and strikes” is a misnomer which has no place in a realistic understanding of how the Constitution and the laws passes by Congress are interpreted.

Another favorite catch phrase used by the Right is that of “Originalism” by which the Right of the Court and in the Congress claim that they strive to interpret the Constitution by the original intent of the founders. I may be wrong but I believe that the term had its origin with Robert Bork, that highly controversial Reagan nominee to the Court who was denied confirmation by the Senate as being far, far too Right. Yet Bork himself admits that it is a doctrine that in the real world cannot be applied. In a book that he co-authored he writes in its Introduction:

“Regrettably, but perhaps inevitably, ‘[t]he ink was not yet dry on the Constitution when its revision began.’ Almost immediately, Congress began pressing beyond specifically enumerated powers granted it in Article I. As a result, today, Americans encounter a national government far more expansive than the Framers and men of their generation could ever have imagined…

“Uncertainty stems, in part, from the recognition that the scope of the commerce power has expanded so far beyond the original understanding of that power's boundaries that any attempt to adhere strictly to its original meaning today would likely be futile and inappropriate… “There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them.”

And at a later point he goes on to say: “When the world has changed but the underlying constitutional principle remains, the task for those ‘in this generation [is] to discern how the framers' values, defined in the context of the world they knew, apply to the world we know.’ The world we know includes the long-standing jurisprudence on the commerce power because ‘[w]hen there is a known principle to be explicated the evolution of a doctrine is inevitable."

So much for the claim that liberals on the court are activists and that Right-wingers are originalists. It is a phony paradigm. As I have stated before, judges are human and what they read into the vague text of laws or the Constitution, whether Left or Right, is informed by their backgrounds and their political philosophy. To argue otherwise is either insincere or naïve.

As for the loud cries against using references to foreign law in interpreting the Constitution that too is a misplaced argument. First it is not only the liberal Justices who make such references. Justices Kennedy and O’Connor both appointed by Reagan have supported this.

Secondly when we look to the Declaration of Independence we find the phrase, “a decent respect to the opinions of mankind” and the Constitution’s Bill of Rights in amendment VII refers to the “common law” which every lawyer knows is a reference to the decisions of British courts preceding the founding of the U.S.

It is again a tempest in a teapot without reason.

Just how little respect for due process the present five Justices of the Right have can be seen in their recent decision in DISTRICT ATTORNEY’S OFFICE FOR THE THIRD JUDICIAL DISTRICT ET AL. v. OSBORNE which held that a state is not obligated to allow DNA testing where it would conclusively show whether a man convicted of rape was, in fact guilty. See the Washington Post’s story on it here.

In that case the District Court granted Osborne summary judgment, concluding that he had a limited constitutional right to the new testing under the unique and specific facts presented, i.e., that such testing had been unavailable at trial, that it could be accomplished at almost no cost to the State, and that the results were likely to be material. The Ninth Circuit affirmed, relying on the prosecutorial duty to disclose exculpatory evidence under, e.g., Brady v. Maryland, 373 U. S. 83.

Finally, I strongly urge those who have an interest in these issues to listen to Senator Whitehouse of Rhode Island on Sotmayor nomination, which can be listened to in full here. The speech is 21 minutes long but I think that the investment of your time will be more than rewarded, though the first minute or two will not hold the reader spellbound.

The issues involved in these court decisions in many ways outweigh those pending in the Congress, and I urge you to take the time to read and listen, if you desire an understanding of the forces at work.