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Constitutional Originalism – Republican or Democrat idea?

Constitutional Originalism - Republican or Democrat idea - Seattle Criminal Lawyer Blog

My entire purpose in writing these ditties is to show everyone how real life legal issues are handled by criminal defense lawyers.

Sometimes that is as simple as discussing the answer to the number one question I get asked, almost daily: “How Can You Defend Those People?”

Other times it is much more esoteric.


The last post fell squarely in that latter category, and, as always when the issues presented are complex, it unleashed a torrent of righteous indignation from the more challenged members of the reading public.

But this time it also unleashed a torrent of thoughtful, careful and complex discussions about the balance between private rights and Government interests, in the context of strict constructionism.

I could not be more pleased about that. My goal was to make people “think things” and boy did they! Lots of things.

Some of the most enlightened comments got to the root of Originalism, or Textualism (Scalia’s preferred term, actually), or, as I like to call it, Strict Constructionism. Too may ‘isms’ any way you look at it, if you ask me.

The simple fact that there are so many subtle variations of the same basic concept screams volumes about the arbitrary nature of the concept. When you can’t even agree on what to call what it is that you are doing (which is supposed to be so simple and straightforward to begin with) you start out from behind. You are taking two steps backwards before you’ve managed even one step forwards, intellectually speaking.

That’s the problem. It’s just humans arguing about things they made up. These concepts are not found on Mt. Sinai, carved in stone. They are arbitrary ideas, the creation of mere mortals, mortals who feel that they have their finger on the pulse of absolute truth, leaving zero room for their own mortal fallibility to cast any doubt on the accuracy of their interpretation. Simply put, it’s a “my way or the highway” approach. Given Scalia’s personality, is it any surprise he favored it?

Here’s the thing: there is really NO reason, intellectually speaking, for strict construction to be the province of Conservatives. It’s really just luck of the draw that Conservatives decided to adopt it. It could just as easily have been the Liberals.

Imagine if Earl Warren, that bastion of Liberal Supreme Court Justices, and a mainstay of the Republican Party (until he wasn’t) decided to adopt the idea that Strict Constructionism was a great way to justify desegregation? Or said that the Framers’ original intent was the reason he ruled that religion did not belong in our schools? 

After all, Scalia said just that when he opined that it was unconstitutional to prevent people from burning the flag.

This is where we need to go back to law school for a bit. Sorry about that, but hey, at least it’s tuition-free.

You see, historically strict constructionism goes back to Jefferson, not exactly your definition of a Conservative, what with being a Radical Revolutionary and all. Of course, so called ‘scholars’ love to commit the original sin, historically speaking, by insisting on labeling all the Framers as squarely belonging to one camp or another, but one thing is for sure.  Today these guys wouldn’t be Republicans. OR Democrats. They were all something else altogether entirely: revolutionaries. Not really fitting into anyone’s mold at the time. I mean, even the French Revolution was still years away. Since our little Revolution was a major impetus for that, it’s not surprising is it?

What is surprising is the insistence by so many today that whatever the Framers intended must fit squarely within our current party lines. “Poppycock,” as they might have said. Downright “Balderdash.” They were nobody’s pawns if they weren’t going to be the King’s. They were independent and righteous.

They also wanted to create a rock solid foundation for our legal system. Which is what they did. The Constitution is not to be tinkered with, any more than your basement should be relocated from underneath your house. The entire legal system is built upon it.

Like your house, it needs updating from time to time. And repairs. Perhaps a new paint color. Depending on what has happened since it was built, whether we are talking about a tree falling on the roof (think ISIS) or your wife getting sick of gray walls, you don’t pick up the house and roll it down the road to fix it. You repair the roof and paint the walls, but you leave the foundation alone.

But what some people are doing is saying that the paint has to be gray forever, because if it isn’t gray the house will fall down. Wrong. It won’t.

When Scalia wrote about the Sixth Amendment and the Right to Confront Witnesses, he was talking about load-bearing walls that were a major support for the entire legal house. His writing in Crawford was Originalism (or whatever) at its best. It works perfectly in that context. That’s because confronting witnesses has not changed much since the 1700’s (I’ll ignore video testimony here in order to keep it simple.) Witnesses are as ancient a concept as sibling rivalry and jealousy.

Anyone with kids knows how that works when it’s time to decide who broke the cookie jar. When one kid is lying, parents can usually tell (although that might raise Fifth Amendment issues in a legal context, another ancient idea.) But it’s not about what political party the siblings belong to. It’s about who makes the more credible witness, which is the premise that drives the Right to Confront. You listen carefully to what everyone has to say and then decide what happened. Not a very political idea, unless you are really reaching, as too many people are when it comes to legal analysis.

So, applying ancient principles to ancient concepts is a perfect example of where Originalism works. In Crawford, Scalia did exactly that, invoking centuries of precedent and historical references to make his point that we have to make sure people are not being locked up on less than credible evidence.

But when he uses that same approach to justify interfering with State’s rights to determine elections, or calls giant campaign contributions “free speech”, the analysis becomes strained to the breaking point.

Until it snaps.

Back to Justice Warren.

IF he had begun invoking Originalism, Scalia style, to justify his liberal opinions, then the idea would be the darling of the ‘Leftie’ set. Instead, Nixon and Scalia grabbed it out of the hands of the Democrats and ran. The Democrats had actually been the first to use it. Even Jefferson was the Founder of what later became the modern Democrat party.

The Framers did intend one thing, for sure. With all the checks and balances, and lifetime Supreme Court appointments, they definitely intended that legal theory, not political orientation, should determine the future development of legal restrictions and protections. They certainly did not intend for one party to hijack the very cornerstone of their work and claim it as their own. That result would have spelled failure for their incredibly elegant and balanced design.

So, there you have it. It ain’t about politics. It’s about legal concepts applied as objectively as possible, consistently and fairly. The fact that Originalism has become the darling of only one party says it all. The only way that would make sense is if the Framers were squarely aligned with only one of today’s parties. Some may believe that to be true. But, of course, it’s not.

It reminds me of a famous rap song that goes: “I am whatever you say I am. If I wasn’t, why would I say I am?” Only here, it’s more like: “It means whatever I say that it means. If it didn’t, why would I say what it means?” My way or the highway, yet again.

One final thought: The last post was meant to be a bit of a mini law school exam. In three separate places, I asked people to explain how the 54 words of the Fourth Amendment did or did not apply to the Apple “search”. Several people attempted to answer this question. However, they reached conclusions that were all over the place. Many said that they were not qualified to answer that correctly.

Scalia said that Originalism was “simple”; the plain meaning of the words, as they were originally intended, was all you needed to know to analyze the Constitution. If it’s so simple, why did people provide such varied answers to my little quiz?

Most interesting of all, most of the self described “Originalists” made no attempt whatsoever to explain how the Fourth’s 54 words applied to the Apple search. Instead, they made Moses-like pronouncements, such as: “IT MUST BE READ AS IT IS WRITTEN!!” With no explanation. If this had been a law school exam they would have flunked.

That said, there was one Visiting Professor at Stanford Law during my final year who may have at least given those answers a passing grade. His name? You guessed it. One Antonin Scalia.