Archive - Jun 24, 2012
This week, the Supreme Court is expected to rule on one of the most politically charged cases in our lifetimes, the constitutionality of the Patient Protection and Affordable Care Act. There have been lots of discussions about what most people think, what the implications of one ruling or another will be, and when we can expect a decision.
One means of interpreting the Constitution is based on a theory called 'Originalism'. This is broken into two branches, original intent, and original meaning and they beg a question. Did the framers of the constitution originally intend for people to base hundreds of years of jurisprudence on a literal interpretations of their texts.
Some of the current justices seem committed to originalism, and I would submit that this reflects poorly on their own intellectual capabilities, or at least their belief in themselves. I would also submit that it goes contrary to the spirit of the great American experiment.
I can see how some can be drawn to this form of legal fundamentalism, and believe it is not far removed from the fundamentalism of some Christians and for that matter the fundamentalism of some Muslims, especially those that wish to wage jihad against America.
As I flew to Arkansas for a conference this week, I spent a little time re-reading Ralph Waldo Emerson's great essay, "The American Scholar". One of my favorite quotes of Emerson is in that essay,
Meek young men grow up in libraries, believing it their duty to accept the views which Cicero, which Locke, which Bacon, have given; forgetful that Cicero, Locke and Bacon were only young men in libraries when they wrote these books.
A little later on, it is followed by the quote,
Books are the best of things, well used; abused, among the worst.
It made me think of the whole 'originalism' debate. With that, not mere accepting the views of Emerson, but building upon them into an ongoing discourse about The American Scholar as it relates to our American Experience, it seems like a paraphrase is in order.
Meek Supreme Court Justices sitting in their chambers, believing it their duty to accept the views which Jefferson, which Adams, which Madison, have given; forgetful that Jefferson, Adams and Madison were only men in politics when they wrote this text. Constitutions are the best of things, well used; abused, among the worst.
This is not to say we should completely abandon the text. Instead, we should engage in discourse around the text, so that the original underlying intent can be maintained.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Establishing justice, insuring domestic tranquility, promoting the general welfare and security the blessings of liberty are noble goals, and they may best be achieved, not be pursuing a literal interpretation of what the framers wrote, but by seeking to understand how in every generation we need to form an even more perfect union.
This needs to be done, not by splitting hairs about the interpretation of the commerce clause in such as way that it promotes the welfare of the newly declared persons of our country, the corporations, but in broadly seeking whether the laws are truly establishing a general welfare for all the people of our county.
This gets to how Constitutions are the best of things, well used. When they broadly seek to maintain and enhance the general welfare of all people, they are well used, and the best of things. When they are narrowly interpreted to promote one small group or class of citizens, such as extremely wealthy conservatives at the expense of the general population, as it seems the Roberts court continually does, they are among the worst.
Somehow, I don't expect that much from our current Supreme Court, and I suspect that history may end up looking at the Roberts Court as being not that much different from the Taney Court.
For Chief Justice Roberts' sake, I hope he learns from history, not only the history of Jefferson, Adams, and Madison, but also from the whole scope of American history from Ralph Waldo Emerson to Roger Taney, that his legacy might not be as bad as Taney's has become.