Thursday, July 05, 2012

"Originalists" assume Founding Fathers were of One Mind

E.J. Dionne of the Washington Post writes today about The Founders' True Spirit.

Dionne says that because our diverse nation is bound by its "founding principles" and not by blood, race, or ethnicity, constitutional questions enter our political discussions more often than in other countries.  This has the advantage that we tend to be open and argue on the basis of high principle.

The disadvantage is that we tend to disguise our differences on policy with differences over whether a preferred policy is "constitutional".  Rather than discussing policy in terms of "will it work", "will it solve the problem it's designed to solve", and "is it a problem government should do something about", it becomes a discussion on whether or not an idea violates the Constitution.

Quite often this discussion includes the claim from today's Constitutional "originalists" that the Constitution means what the Founding Fathers - inspired by God, perhaps - meant it to mean.  This approach relies on the very large assumption that the Founding Fathers were of one mind, that all had an "original intent" in common.  But Dionne points out that in 1790, within two years of the Constitution's ratification, two of the Founding Fathers, Alexander Hamilton and James Madison (both Federalists, by the way), were in strong disagreement over whether or not a central bank was constitutional.  As Dionne suggests:

Those who claim we can be so certain of the “original” intentions of the Founders should take note: If two of the authors of the Constitution came to such a stark point of disagreement so quickly, what exactly does “originalism” mean?

Dionne suggests it is dangerous to think of our Founders as "quasi-religious prophets" who produced text of a Biblical or Talmudic nature.  Citing Gordon Wood, a highly regarded contemporary scholar of the founding era, he notes the Founders were men of character yet had no "divine insight" into politics and that they were "as enmeshed in historical circumstances as we are."

Of particular relevance to Dionne and very interesting to me is this quote from Madison from Federalist #14:

Is it not the glory of the people of America that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?
Dionne's conclusion:  "We would be truer to the Founders’ intentions and spirit if we followed Madison in having more confidence in our own good sense and our knowledge of our own situation."

The column is worth reading in full.


Blogger Billiam said...

They weren't of one mind, as is obvious from their writings. Wasn't Hamilton in favor of a stronger Federal Government?

As to "Rather than discussing policy in terms of "will it work", "will it solve the problem it's designed to solve", and "is it a problem government should do something about", it becomes a discussion on whether or not an idea violates the Constitution."
Isn't it important to make sure of both? Just because we can do a thing, doesn't mean we should. Also, it is important as to whether the Constitution allows for it or not. Part of the genius of the Constitution, and of it's writers, is that they put a mechanism in that allows it to be changed. The Amendment process. It's hard, and it should be.

What it comes down to, for me at least, is how important is the Constitution to 'We the people'? If it is no longer considered relevant, then complete the process that many an Administration and Congress has begun, and kill it. If you think it should be followed, the intent of a limited Federal Government, then it is worth fighting for.

Lastly, they weren't, nor should they be looked at, as demi-gods. They were very intelligent men who knew quite a bit about history. many were also Christian, and knew of the flawed nature of man. I think that comes through in the document itself, and their writings. The truly sad thing is this. Too many today want to judge them by today's standards, rather than the times they lived in. They misrepresent things like the 3/5's clause, or that some owned slaves in order to dismiss them and the document that has given many freedom and liberty. Your thoughts?

4:03 AM, July 07, 2012  
Blogger Jim said...


Thank you for your thoughtful response.

I don't disagree that Constitutionality should be a consideration. But rather than being the prime reason of consideration, the policy issues should be foremost. We should create policies that solve our problems and instead of finding ways to constitutionally knock it down we should find ways of constitutionally upholding it.

Congress passed PPACA assuming that the commerce clause would allow it. All precedent indicated that there would be no problem. The bill's authors didn't just make it up and hope it was constitutional. Their experience said it would be.

Opponents, instead of working to compromise on a bill that would both work and be constitutional, decided to simply focus on taking it down in court. The fact that different courts/judges, both conservative and liberal upheld or struck down the law demonstrated that the constitutional issues were not cut and dried.

5:57 PM, July 08, 2012  
Blogger Billiam said...

Jim, the commerce clause has been perverted since Wickard. SCOTUS expanded the CC on a possibility, and it's been stretched beyond intent ever since. You already know my feelings regarding how far the fed has gone, power wise, beyond the limits imposed on it by the Constitution. As to your comment on the bills authors, you give them more credit than I am able. As to your accusation of taking it down in court, what was left them? I guess what one could also say, what's good for the goose, is also for the gander. It happened in Cali with the gay marriage deal. They couldn't win at the ballot box, so they did it with a corrupt judge in court.

3:11 AM, July 10, 2012  
Blogger Jim said...

Billiam, most of what you've written above is up for debate. However:

so they did it with a corrupt judge in court.

This statement is libelous. There is no hint whatsoever of corruption in the record of Judge Walker.

7:50 AM, July 10, 2012  
Anonymous Parklife said...

Not to go off topic or anything.. but.. Just saw your comment.. funny that marsha continues to go crazy over the smallest issues... Perspective left his brain a looonnnggg time ago. 100 posts is almost easy when he is around.

Btw.. the Supreme Court does whatever it wants.. for better or worse. Thats our govt. Conservatives just have a difficult time dealing with the Constitution. Call them un-American if you like.. :)

4:25 PM, July 12, 2012  
Blogger Billiam said...

This statement is libelous. There is no hint whatsoever of corruption in the record of Judge Walker.

Really? A judge who happens to be gay, and suggested that support for traditional marriage is irrational bigotry, rules prop 8 unconstitutional, rather than re-cuse himself for bias, and you say that's not corrupt? Jim, I am surprised at you.

12:45 PM, July 20, 2012  
Anonymous Parklife said...

Ahh.. Billiam.. Perhaps you can find us an asexual judge for us.

I would suggest that Google just create an algorithm to solve pesky disputes of the law, but they are headquartered in the Bay Area and we all know how that would turn out.

3:32 PM, July 20, 2012  
Blogger Jim said...

Jim, I am surprised at you.

Sadly, I am not surprised at you. I knew this would be your answer. By your logic, a heterosexual judge should also have recused himself for bias.

Judge Walker didn't "happen to be gay". He was gay and both parties were aware of it. The pro-prop 8 legal team chose not to raise the matter. It had nothing to do with the case.

[Walker] suggested that support for traditional marriage is irrational bigotry.

No, he did not. He said that Prop 8 "creates an irrational classification on the basis of sexual orientation". And "'[M]oral
disapproval, without any other asserted state interest,' has never
been a rational basis for legislation."

He said that the arguments offered against same sex marriages had no foundation in fact, which made them irrational. He said no state interest in banning same sex marriages was demonstrated.

Furthermore, his ruling was upheld by the 9th Circuit and a federal judge ruled that Walker had no obligation to recuse himself.

No corruption. The assertion of corruption is libel.

5:34 PM, July 20, 2012  
Blogger Billiam said...

Jim, I couldn't be on a jury in a child molestation case because, as one who was molested, I have a VERY strong bias. I wouldn't be impartial. But hey, I won't bore you, or disappoint you further. Be well.

3:06 AM, July 22, 2012  
Blogger Jim said...

A jury trial for a crime is a lot different from a bench trial on a question of rights.

By your logic, a conservative Christian would also have to recuse himself due to bias.

The case was not complicated. The legislature (a body representing the people of California) passed a law granting same-sex couples the right to marry. Proposition 8 proposed to take away that right.

The essence of Judge Walker's decision was that you can't take away an EXISTING right without demonstrating an overriding state interest to do so. Prop 8 defenders failed to demonstrate such a state interest. Pretty simple.

Just curious. Not that it matters now, but how do you feel about Justice Thomas not recusing himself from the health care reform case when his wife was making money as a critic of the law?

2:21 PM, July 22, 2012  

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