It would be ideal if there was only one way to read the Constitution in order to find the actual intent of the framers. But, as I said, that is an ideal and we are not privileged to have such information. We have to speculate, based upon the data available to us.
Some would say that we cannot proceed to define the Constitution until we fully understand that intent. Others, however, see the Constitution as a fluid document which must be applied according to what we know about the current situation in our nation and how the Constitution applies to it.
The former style, that of searching for the framers’ intent at the time of signing, is called originalism.
It is a topic in the news with the death of Supreme Court Justice Antonin Scalia. For many years he has been the voice of conservative members of the Court, insisting upon originalism as the most important feature of Justice’s tasks. Some of his colleagues do not agree, leading to the kind of dialogue and sometimes verbal battling that takes place among the Justices. (In spite of the differences, Justice Scalia was admired and befriended by the entire Court.)
At times Justice Scalia could be prickly and demonstrative, insisting that the Court must return to what he believed to be the intent of the framers, based upon the scholarship which he had undertaken. It has been important to understand this, as the Court is evenly divided between conservative and liberal members, with the Chief Justice (for the most part a Conservative) required to break the tie.
The flaw in Justice Scalia’s originalist thinking is that we do not have the framers sitting amongst us these days, able to testify to their intent. We can only surmise what it may have been. And just because one Justice finds a track that seems logical, it is not a given that he is always correct. And…there are those that believe it is not an appropriate track to follow in the first place.
Some would argue that the separation of three centuries from the framers places us in a different world in which the issues of governance of this vast nation is reliant upon more and different criteria than it was for the framers. We can assume their intent, they would say, but to apply it to today’s technology, growth, vastness, greater diversity, knowledge, and science is inappropriate. Rather, they would continue, it is important to look at the nature of culture in current society and determine how the words of the Constitution apply.
The framers had no understanding of air flight, space travel, and even motor vehicles in their time, they would say, so how can we make a literal transition from the words of the Constitution to the actions of citizens in this day and age? Social mores, such as the emergence of women as full participants (not quite there, are we?) in matters of politics, finance, sexuality, business, military service, religious thinking, etc. do not compare to the life in the 18th century in agrarian, East Coast America. How does one assess the thinking of the founders of our nation on such issues as fracking, global economics, or same-gender marriage, when the concepts were not even in the minds of leaders of our nation in those days?
Originalism is an interesting academic pursuit, and it may provide some insights into the simplistic thinking of our society in the first century of our existence as a nation. But it is flawed as an unquestionable, sole source of decision-making on the complex issues we face in the 21st century.
Photo Credit: ABC-Tv