Originalism is not the best form of Constitutional interpretation.
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The US constitution can be interpreted in a few ways. Originalism defined as:
The interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified.
Best defined as:
Superior to all alternatives.
BOP. Con must prove Originalism is the best form of interpretation.
Thus, the goal of constitutional interpretation would be to determine if the Constitution has jurisdiction over individual cases and controversies and, if so, what judicial action should be taken based on that established jurisdiction.
My opponent did not define what an originalist is, so I provide this courtesy of wiki.
There are a few recognized and distinct methods of CI, which include Originalist, Textualist, Intentionalist, Pragmatist, and Natural Law Theory. Rather than go through each of these philosophies individually, I will apply a few broad-stroke principles to address the shortcomings of originalism.
Originalism is not the best form of CI for the following main reasons:
- First is the text is very open-ended.
- Second is that no rights are absolute, and
- Finally, we have been aged out of that reference.:
The text of the constitution is very open-ended and requires interpretations. Words like unreasonable, due process of law, cruel and unusual punishment are but a few examples that are not defined within the four corners of the constitution. Those are all provisions that need interpretation.
What gets more interesting is all the use of the male pronouns in the constitution. It was clearly the intent of the framers that the President and Vice President would be male. Women did not even have the right to vote.
It would be absurd now to think there is a constitutionality problem with having a female as President or Vice President, yet the language AND intent is so clear that it fits within originalism thinking. Yet even originalists dance away from this discrepancy in their interpretive model.
The text also includes the 9th Amendment, which makes it clear that there is an obligation on judges to ensure the CI was met with flexibility, and not overly restrained.
Let’s look at schools The SCOTUS case in Plessy v. Ferguson, 163 U.S. 537 (1896), upheld the constitutionality of racial segregation, in part by appealing to the fact that segregation was tolerated and even endorsed by many of the same statesmen who voted for the Fourteenth Amendment.
in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.
However, in the SCOTUS 1954 case of Brown v. Board of Education of Topeka 347 U.S. 483, made school segregation unconstitutional, a reversal of what happened 60 years prior. Under originalist philosophy, the court should not have overturned its previous decision. Today we would generally accept that school segregation would not be acceptable, yet to an originalist, it was…. But now it’s not? That discrepancy in the originalist view is hard to reconcile and gives serious credibility problems to their approach.
NO ABSOLUTE RIGHTS:
Rights are not absolute. There is always a question of balancing those rights. The scales and rubric of balance are not contained in the constitution. As a result, the obligations of interpretation rest with the judicial panel deciding the case.
Free Speach: Not all speech is “free speech,”. It has not been persuasively argued that the First Amendment means that all expression, without exception, was immune from government regulation. The real question for originalists is where the founding generation believed the line was drawn between “free speech” and speech subject to legislative limits.
Over the past 50 or so years in a series of cases, courts have placed a number of “time, place, and manner” restrictions on free speech. Often the phrase “freedom of” is the cornerstone for qualifying limits on the prohibition on Congress contained in the amendment. An originalist view does not support some of the restrictions that have been put in place
Originalist views cause problems when trying to overlay the impact of new technologies and social behaviors on the framer’s intent. GPS, Internet, mobile communications, enhanced weaponry, satellites and electronically supported surveillance techniques, are all modern. The framers could not anticipate these technologies, and had they known they would exist, they may well have rethought some of their wording.
Therein the wording of the constitution is vague, and incomplete to our current social standards to stand on its own as an articulator of all or most aspects of rights.
The views of 1787, and 1791 should not be the litmus test for what we do today. That was a time of an agrarian slave society, that cannot be the stencil for which to trace our current society.
Society at the time was patriarchy, with an average life expectancy of 36 years, and a literacy rate of 50%. Women could not vote, the concept of workplace safety was non-existent, and contracts had very little recourse for mistake, misrepresentation, and fraud.
To say that the primary source of thought in what direction our CI should go, shall be based on the lense of such an era is preposterous. There is no pragmatic way to reconcile the framers would expect the continuously rear-facing analysis if they knew the world we lived in now.
Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law at UC Berkeley School of Law, and author of the book "We the People. How the Constitution is a Progressive Document That Can Be Adapted to the 21st Century,", describes some very persuasive thoughts on this subject, and how the entire mental process in the 18th century would have been very different.
I shall address my opponent’s arguments in the next round.
It is for the above reasons I find it hard to believe that originalism can be justified as the best form of CI.
“Originalist views cause problems when trying to overlay the impact of new technologies and social behaviors on the framer’s intent.…The views of 1787, and 1791 should not be the litmus test for what we do today…To say that the primary source of thought in what direction our [constitutional interpretation] should go, shall be based on the lens of such an era is preposterous."
“The interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified.”
“Originalism does not require every cultural norm and belief to be turned into a constitutional requirement.”
“If we allow the Constitution to be significantly reinterpreted every time social standards change, then the document will become a cudgel used to bludgeon minority views in the name of progressive justice for every era to come.”
“Principles of government do not become outdated, they are simply improved upon or rejected by a particular nation.”
“[The Consitution] was intentionally worded in a way that was somewhat vague in certain areas for the very purpose of being able to adapt it to changing cultural and political contexts through judicial interpretation and legislative amendments.”
- The framers assumed the President would be male.
- The framers could have used the noun “person” instead of the
- The framers were aware of previous female leaders and still
- For correct grammar, the framers would have to use either
“he” or the awkward “he or she” as their pronoun.
- The common practice was just to use “he” when referring to a
male or gender-neutral singular antecedent.
- While many specifics are given such as age and length of
citizenship, no references to gender are given other than the questionable
intention of the male pronoun.
“It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.”(Federalist Paper: No. 78, https://avalon.law.yale.edu/18th_century/fed78.asp)
I addressed this in round 2, but there is still contention so I will expand. The definition of Originalism provided said that "all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified." A precedent case is not a part of the Constitution and did not exist at the time it was ratified. The judges in Plessy v. Ferguson were not authors of the Constitution, so originalists are not bound to their understanding; they are bound to the actual authors of the Constitution. I am not arguing against respecting precedents in future cases. But, if a precedent is deemed to violate the original meaning of the Constitution, then it is to be discarded in favor of the original meaning.
- If the Constitution is not binding in its original meaning, then it is not an authoritative document.
- Any form of textual interpretation that deviates from the authorial intent of the text is in contradiction to fundamental concepts of interpretation that we use every day.
- free reign in interpretation can allow for serious breaches of constitutional rights
“Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.” (Federalist Papers: No. 78, https://avalon.law.yale.edu/18th_century/fed78.asp)