Tag Archives: Jefferson

Let’s Talk About Originalism

Today, the Senate is scheduled to elevate Amy Coney Barrett–a rigid ideologue who has never tried a case– to the Supreme Court. During the fiasco that has substituted for her vetting, we’ve heard a lot about “originalism.”

A while back, a reader of this blog reminded me of Thomas Jefferson’s opinion on originalism, contained in a letter he wrote to Samuel Kercheval on July 12, 1816.  Jefferson wrote

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”

The philosophy of “originalism” was popularized by Antonin Scalia, who tended to employ his version of it when he disapproved of those “changes in manners and opinions” and ignore it in the many cases where it was clearly unworkable.

As I have previously explained, there is a version of originalism that does work, that does keep the constitution from being simply what nine people in black robes say it is.

In that version of originalism, courts are required to protect the values and principles that the founders were clearly trying to protect. James Madison could never have anticipated new methods of communication–radio, movies, television, the internet–but he had very clear ideas about protecting expression against government censorship. He, Jefferson and several other Founders also clearly expressed their beliefs in the importance of separating government from religion. Courts today must honor the Founders’ devotion to those and other principles embedded in and protected by the Bill of Rights.

Fidelity to those principles is the only workable and intellectually honest form of originalism, and as Edwin Chereminsky recently pointed out in an editorial for the New York Times, it is definitely not the originalism of Amy Coney Barrett.

Chereminsky is a prominent legal scholar, and Dean of Berkeley’s law school, and he points to the numerous problems with Barrett’s purported “public” originalism–the notion that the constitution must be interpreted to mean what the public thought it meant when it was ratified.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

The Dean points out that rejection of Barrett’s understanding of originalism is anything but new. He quotes the 19th century Chief Justice, John Marshall, who wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Furthermore,

It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.

Chereminsky makes a point I also make to my classes: how can “original public meaning” guide today’s courts in deciding whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes, or obtain stored cellular phone location information without a warrant?

The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.

Placing Barrett on the Supreme Court dishonors both the Court and the Senators who vote to confirm her.

 

 

 

About Those Statues…

In the last couple of days, I’ve gotten two messages from friends in different (Northern) states who are troubled about the efforts to remove statues of Civil War figures. 

Here’s the first:

I am in a quandary. I am an educated, white, privileged male.  I can understand, but not empathize with, the thoughts of those who wish to see the statues of Confederate officers removed.  As an English major, I also see the statues as art.  So what is next? Paintings, then books? Are the Holocaust museum displays too emotional, the paintings at the WWII museum too one-sided, the ceiling of the Sistine Chapel acceptably historical?  And who would decide?  

Shakespeare said a rose by any other name would smell as sweet.  Is Fort Bragg any less offensive to humanity than Fort Sherman?  

I don’t want to get too deep in the weeds with the idea, but I do see the opportunity for a slippery slope.  Maybe it’s just my white, privileged male quandary? 
I look forward to your thoughts.

Here’s the second:

I’ve been thinking a lot about the new wave of dismantling Confederate statues, not displaying the Confederate flag, dropping Gone with the Wind from Netflix, Lady Antebellum changing their name to Lady A, etc. I agree with a lot of this, but I wonder if we’re going too far? Where do we draw the line? I noted on Facebook that Washington and Jefferson were slave owners. Should we tear down their monuments while we’re at it? Is it rewriting history? I would love for you to write a blog about this and help me figure it out!

Both of these individuals are progressive, thoughtful and public-spirited. If they are uncomfortable with removing these monuments and renaming bases, I’m sure many other people are equally conflicted.

Here’s my “take” on the issue:

First of all, I see a profound difference between statues and monuments that honor historical figures, and museum and other displays that educate about those figures. The placement of statues in public places pretty clearly falls into the first category. (In a couple of instances, Confederate statues have been moved to museums rather than destroyed–an implicit recognition of the difference, and in my view, an entirely satisfactory resolution.) With respect to the names of military posts, same thing—we don’t name streets, buildings, etc. for “bad guys,” we reserve naming rights for figures we admire.

Germany doesn’t have statues of Hitler, but German history certainly hasn’t been lost.

The men who fought for the South in the American Civil War were defending slavery– an indefensible system–and they were traitors to their country. We should remember them, but we certainly shouldn’t honor them. (There’s also the fact that most of these monuments were erected long after the war, to signal white resistance to the civil rights movement.)

So I think removing Civil War statues is a relatively easy call. But I understand the concern about “slippery slopes.”

None of the historical figures we admire were perfect people. As the second message notes, Washington and Jefferson (among others) were slaveowners. But we don’t honor them for slave-holding; we honor them for their willingness to risk their “lives, fortunes and sacred honor” to bring a new nation into existence, and for their crafting of the Constitution and Bill of Rights.  

If being a flawed human being was reason to ignore significant contributions made by historical figures, there wouldn’t be many statues. (Maybe Mother Teresa, although who knows? There might be something in her past….)

Before we either defend or dismantle a monument, I think we need to ask why it exists, and what it is that we are honoring.

It’s pretty clear that the only reason there are statues of Robert E. Lee and other Civil War figures is because they were central figures in an uprising–a rebellion– against our country. We are honoring their decision to be traitors, and implicitly sending a message that although they lost, their “cause” was honorable.

In the case of figures like Jefferson, Madison, Washington, et al, we are honoring their undisputed service and the importance of their contributions–and those contributions are clearly worthy of honor.

Anyway–that’s my take on the issue. I welcome the perspectives of my readers.

 

 

 

Quotes From The Founders of Our “Christian Nation”

One of the many things Thomas Jefferson was known for was creating his own version of the bible: he famously excised all of the metaphysical portions, leaving only the moral teachings. (This may be why, when he was running for President, opponents warned that  he would order the burning of all bibles if he were to be elected.) I thought about that recently, when I came across a collection of quotations about religion and religious liberty from Jefferson and America’s other founding fathers. I was familiar with most, but not all of them. Of those I hadn’t previously seen, I particularly liked this one from Jefferson, taken from a letter he wrote to one Peter Carr in 1787:

“Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear.”

Ben Franklin was more blunt. In Poor Richard’s Almanac, in 1758, he wrote

“The way to see by faith is to shut the eye of reason.”

Although not technically a Founder, Thomas Paine was an enormously influential figure in Revolutionary America, and a reliable critic of religion and religious establishments; in The Rights of Man, he wrote

“Persecution is not an original feature in any religion; but it is always the strongly marked feature of all religions established by law. Take away the law-establishment, and every religion re-assumes its original benignity.”

In 1776, in The American Crisis, he made his disdain for “faith-based” reasoning even clearer, writing

“To argue with a man who has renounced the use of reason is like administering medicine to the dead.”

(Explains the problem with several current members of Congress, the General Assembly and most of Texas….)

Madison frequently weighed in on the side of reason and the need to separate church from state. In his often-quoted letter to William Bradford, he wrote

“Christian establishments tend to great ignorance and corruption, all of which facilitate the execution of mischievous projects.”

There are many similar quotes from the architects of our Constitution, easily found in textbooks, history books or a cursory visit to Doctor Google. This nation’s founders tended to agree with Gallileo that “man is not obliged to believe that the same God who has endowed us with senses, reason and intellect intends us to forgo their use.” However avid our current culture warriors may be about rewriting American history, it’s impossible to ignore the continued relevance of these sentiments. In fact, in view of the current push for explicit religious “liberty” to discriminate against LGBT folks, another Jefferson quote (from A Bill for Establishing Religious Freedom) seems especially apt:

“Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.”

You tell ’em, Tom!