The Founders meant for the republic to be agile in philosophy — always changing to meet the new demands of the next generations. They meant for us to be self-governing, and empowered to create policy for problem-solving in new eras they themselves could not even conceive of. Thomas Jefferson wrote forewarningly of the Dead Hand of the Past and how critical it would be to not remain trapped by it. The Founders were agile not in the sense of software development (obviously!), but in the same spirit: they embraced responding to change over following a plan, and in continuously uncovering ways to develop a more perfect union.
Conservative ideology on the other hand — and in particular, Originalism — flouts the actual intentions of the Framers while cloaking itself in nationalist symbology. It tries to claim that our modern hands are tied by the dead ones of the past. The Originalist doctrine currently holding sway at The Supreme Court, The Federalist Society, and the majority of right-wing judiciary maintains that the best we can do is peer feebly into the distant past and try our best to squeeze ourselves into the minds of the men who inked our Constitution some 235 years ago.
The Founders wrote things. A lot of things.
Leaving aside for a moment the impracticality of that theory as an actual practice of interpreting the law, some consideration of materials on hand shows us that we needn’t go to all that trouble in the first place — why? Because the Founders left a lot of writings behind about exactly what they meant, and the principles they were thinking about, at the time of the nation’s founding and the drafting of our Constitution.
From the writings of James Madison, Alexander Hamilton, Thomas Jefferson, Benjamin Franklin, John Adams and others we have more than just scant clues about their intentions — we have a rich body of original works to draw on to inform us about their political philosophy. And from this work one of the key themes that stands out is their conviction that they were building a democratic framework that would stand the test of time — precisely through its ability to navigate change and to flexibly accommodate the challenges that would befall their descendants. In this, the Founders were agile —
“Every nation has a right to govern itself internally under what forms it pleases, and to change these forms at its own will,” Jefferson wrote to Thomas Pinckney in 1792. The Virginia statesman says nothing about his will, or “our” will (i.e. the Founders’) — he says the opportunity and the obligation lie with the nation itself. The nation’s will is a living thing — dead men have no will, and we in 2022 ought not to be bound entirely by the will of men long gone from this nation.
In 1790, Jefferson had been even more clear in his framing of the living will of a polity as the very essence of self-governance — the active essence that flows directly from natural rights: “Every man, and every body of men on earth, possesses the right of self-government. They receive it with their being from the hand of nature. Individuals exercise it by their single will; collections of men by that of their majority; for the law of the majority is the natural law of every society of men.” Beyond the concept of the living will, the idea that a majority ought to agree is directly in contrast to the myopic, nostalgic view of the Originalists — who maintain that an unelected elite cadre of judicial appointees, many serving for life, should be called upon to have the “final word” over whether or not the living will of the majority is allowable according to the imagined intentions of long-dead men.
Originalism is a Right-wing Big Lie
Since its origins in the 1970s, Originalism (sometimes referred to as “textualism”) has suffered from a foundational incoherence problem. Introduced by future failed Supreme Court nominee Robert Bork, the idea was to “fix” the problem of an unelected judiciary diluting the essence of majority rule. However, the alleged cure was far worse than the disease: placing 9 unelected (and stackable!) Justices at the end of every legislative gauntlet like trolls under the bridge of self-governance.
Today’s SCOTUS is largely the product of autocratic engineering on the part of Mitch McConnell and his merry band of oligarchs seeking to destroy democracy so that the rules of the republic — which already very thinly apply to them — no longer apply to them at all. First by a seat stolen from President Obama via invention of a rule out of whole cloth (Originalism be damned, apparently, when it suits them) about Supreme Court nominations during election years, then by a second seat rammed through in an election year after early voting had already begun.
One of many GOP Big Lies, Originalism is especially pernicious in its interplay with the conservative ideology of minority rule borrowed from the antebellum days of the planter class South. The archaic and dubiously enshrined convention of the filibuster — another powerful tool seen nowhere in the Constitution! — allows Republicans in the Senate to thwart Democratic agendas of even the most moderate, bipartisan slant with broad popular support.
The lie of Originalism is self-evident on its face. Scant few Republican political machinations comport with the idea of themselves being constrained by Constitutional powers, or conveniently self-serving interpretations of Constitutional powers — textualism, apparently, is only meant for constraining Democrats.
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