Time for 'liberal' jurisprudence to mount stronger challenge to so-called 'originalism'.

So, The Nation magazine reported the confirmation of Judge Sonia Sotomayor to the Supreme Court. Nothing surprising about that. What interests me at the moment is that the piece quotes a speech in which the deceased Justice Thurgood Marshall cited the centrality of "social transformations" in bringing the United States into alignment with the designs of its written Constitution:

[The] government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.

The more I have read about and from the history of the Early Republic, as they call it, the more proof I have unearthed as to the consciousness of the Founders of the fact that the necessary social and economic conditions for the development of American democracy had not yet been established at the moment of the nation's birth. Many of the Founders commented frequently on the fact that the future was an unknown quantity and that this fact could cut in either direction, negative or positive. An example of the latter is the specter of the apparatus of governance one day falling under the control of greedy, petty or self-interested men. As John Adams put it, during the extensive correspondence he and Thomas Jefferson conducted during the later decades of their lives:

Democracy [...] while it lasts, is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.

If democracy's ideals, continued Adams, were to succeed, this success could and would be obtained only with great effort and with the passage of time:

When people talk of the freedom of writing, speaking or thinking I cannot choose but laugh. No such thing ever existed. No such thing now exists; but I hope it will exist. But it must be hundreds of years after you and I shall write and speak no more.

The awareness among the Founders of the role of contingency and shifts in meaning in history extended beyond their comprehension of the fact that the future was likely to look, as it were, hella different than the Revolutionary Era looked. However: the importance of this understanding in a way can be seen to have been a function of revolutionary action itself, an activity that by definition consists of trading in a world of familiarity and predictability for a world of struggle and unpredictability. This act is one that faces off against the possibility of a future of utter failure in a way that today we are too constitutionally (pun acknowledged but not intended) weak even to ponder.

Our Founders and the Framers of the Constitution also knew that there are limitations inherent to the capacity of words to transmit their "intended" meanings. They understood that words therefore cannot be comprehended exclusively in reference to the context of a specific time and place. They were shrewd enough to know that this was impossible. (Or, maybe "shrewd" isn't the word: maybe it's "thoughtful.") And, therefore, in framing the original articles of the Constitution and the Bill of Rights, they painted with a brush broad enough to inform the interpretive abilities of intellectually honest and morally engaged future stewards of democracy.

Upon reading the actual documents, it is simply impossible to imagine that the Founders would be pleased to see the likes of Dick Cheney in a position of power. But that's an obvious point....

The important point is that Justice Antonin Scalia and other adherents of the judicial philosophy of originalism fail utterly to comprehend the significance of the fact that the Framers possessed this very comprehension of the relations among contingency, meaning, words and history. Scalia argues that, when interpreting the Constitution, as well as federal and state laws, judges must interpret language in a manner that accords with the meanings that the words possessed at the time of their having been written and passed into law.

But: if the Framers were aware enough of these historical processes, if they were conscious and even deliberate in imbuing the language of the Constitution with this cognizance, this anticipation that subsequent readings would bring to bear unimaginable contingencies, then should not the originalist be the first scholar on his block to insist upon granting serious consideration to capacious readings of Constitution language? Especially in tricky and consequential areas of Constitutional law, like its implications for what we would today call 'privacy' rights??

Does this make sense? It's late as I type. I'll maybe explain a bit more when I'm in a lucid frame of mind (should my mind come to be so framed....).

In the meantime: we on the putative "left" side of center should start articulating a couple of easily-identifiable fallacies that are promoted by originalism, as Scalia conceptualizes it. Both of these fallacies have widespread implications for the rule of law in areas of individual liberty and privacy. Scalia's first demonstrated fallacy is that he removes the words of the Constitution from the context of their overriding systems of value and signification, in effect, stripping words of their meanings.

To illustrate this fallacy conceptually, here's an example: Nowhere in the Constitution does there appear the word "abortion." Therefore, to recognize in the Constitution the rights of women to have abortions is to read something into the document that isn't there. Now, don't mistake my example as making the claim that Roe v. Wade was good jurisprudence or even a good idea; let's save that discussion for another day.

Instead, focus closely upon the internal logic of the cited example: Does this reasoning in and of itself indict Roe? No way. Because there is plenty of language in the Constitution that is aimed at protecting spheres of individual prerogative from the intrusion of governmental tyranny. Scalia would say: Well, there's no way the Founders would have imagined the concept of a 'legal right to an abortion'.

True. And, advocates of 'liberal' jurisprudence should respond: To precisely the same extent, the Founders could under no circumstances have imagined the concept of a 'legal prohibition upon abortions'. Only when framed in this manner can the notion of 'originalism' be seen as on 'all fours' with supposedly 'competing' judicial philosophies.

There is a second fallacy upon which Scalia's originalism is premised. I would argue that Scalia accords an overabundance of meaning/significance to perceived connections between the words of the Constitution, including its early amendments, and the 'actual thinking' of those who wrote these texts. This is first because the notion of these texts as having been 'written' is in itself potentially misleading: The documents themselves are compromises, at which the Framers arrived only after extensive debate, and -- more importantly -- the brokering of deals.

There is no doubt that the Framers themselves often interpreted the same language differently.

Thomas Jefferson, who was in France being a diplomat during the Constitutional Convention and subsequent passage of the Bill of Rights, probably interpreted the separation of Church and State as something akin to what he had described in his correspondence as a "wall of separation between Church and State." Others may have understood the First Amendment differently. In other words, the Founders were in many respects engaged in the very same debates in which we are engaged today.

So, one response to Scalia is to point out: To appeal to the Early Republic for definitive guidance in interpretation is to appeal to an era that possessed a diversity of interpretations equivalent in extent to -- if not exceeding -- the diversity of opinions that we possess today.

Whereas Adams hoped for a future of greater human liberty and happiness, Jefferson was always at least slightly -- and often exceedingly -- more optimistic than was his friend. For all of the trouble it's brought us, you've gotta show the love for The Enlightenment (somebody: cue up a vinyl copy of Beethoven's Ninth!) and give Jefferson his due for being such an Enlightenment fundamentalist.

He probably would have preferred conscientious, ethical and -- yes -- empathic Supreme Court justices to Scalia's dry, supposedly technical, and operational jurisprudential ideal:

When I contemplate the immense advances in science and discoveries in the arts which have been made within the period of my life, I look forward with confidence to equal advances by the present generation, and have no doubt they will consequently be as much wiser than we have been as we than our fathers were, and they than the burners of witches.

The fallacies I have identified are not only general characterizations of originalist jurisprudence. Instances of these fallacies can be spotted in many specific legal opinions. To the degree to which the legal opinions can be described as relying upon fallacious premises, 'originalism' itself is exposed as a tactic by which its adherant convinces himself and others that his judgments do not rest upon (or emanate from) ideological and political premises. Sorry, Justice Scalia: Guess you'll just have to begin formulating actual justifications for your interpretations and stop seeking the shelter of quote-unquote originalist legal philosophy.

At some point I want to explain why I belief the prevailing explanations/justifications for 'liberal' jurisprudence to be flawed. But maybe I'll have to use more brevity and not be such an insufferable pedant. Because I'll bet you twenty dollars that you haven't read this far into the post.