Wednesday, August 24, 2005

Stuck in the 18th Century

Kevin Drum has a good post on "originalism," the doctrine which argues that judges today should try to determine the Framers’ original intent when interpreting the Constitution.

Of all the pillars of modern conservatism, the one that has long struck me as the most obviously absurd is the doctrine of originalism. Think about it. Are we really supposed to take seriously the idea that the Supreme Court of 2005 — in an era of spyware, genetic mapping, and billion dollar hedge funds — is supposed to make its judgments based on divining the intent of a small group of men who lived in a simple agrarian community 200 years ago? Presented baldly, it's an idea that wouldn't pass muster with a bright 10 year old.
Conservatives inevitably start crowing about originalism when it comes time to debate the Supreme Court. Drum suggests 3 reasons why:

. . . a substantial fraction of the country would very much like to reinstate 18th century social values. . .

. . . originalism provides a congenial guarantee of certainty. . .

. . . it's a great soundbite. . .
Drum’s conclusion, one with which I agree, is that originalism has become the Constitutional doctrine de jour because liberals have failed to posit an alternative system. It’s not written in stone (or in the Constitution for that matter) that there’s only one way to read the Constitution, but conservatives have done a pretty good job of convincing Americans otherwise. Thanks to the lack of vocal opposition, they haven’t had to work very hard to do it.

--Matthew McCoy