Is the Constitution literal? Should 2017 be judged on the basis of something written in 1787?
Neil Gorsuch, Trump's pick for the Supreme Court seat left vacant by McConnell's refusal to give Merrick Garland a hearing is an illegitimate choice. McConnell's excuse was that Obama had only eleven months left in his administration. The next president should chose Antonin Scalia's successor. That wasn't a problem when Ronald Reagan chose Gorsuch's mentor, Judge Kennedy, in the last year of his administration. Conservatives love Gorsuch because he seems to be Scalia risen from the dead. He's an originalist, in other words. What's an originalist you say? It's the idea that a document written in 1787 is sacrosanct and literal, although the second amendment is such a muddle only a mind-reader would be able to tell you what it means and the fact that it included such head-scratchers as a black person was only 3/5 of a person. Actually, in real life, he/she wasn't considered a person at all. 3/5 was a compromise. Southerners were worried the North would have more representatives in the House because their population was much greater. Women also couldn't vote, among other lapses. There's also a hint that the Constitution was meant to be a Living Document in that it included the Bill of Rights, the first ten amendments. They were changing it before the ink was dry.
There was lots of opposition to the Constitution among the states. States rights was an issue that kept on getting more and more problematic. Then along came the savior, Alexander Hamilton, who wrote most of the Federalist Papers; without him, we can safely say we might not even have a Constitution. He was that persuasive. Hamilton was a Federalist. He believed the federal government should have ultimate power over the states. As Secretary of the Treasury he assumed the debts accumulated by the states during the Revolution, which made states like Virginia upset because they'd already paid theirs. He also established a national bank, the precurser of the Fed. Take that originalists who argue that the Fed is unconstitutional and that the federal government should be drowned in a bathtub (see Knucklehead Norquist).
Perhaps a greater argument and one that should be self evident is what Thomas Jefferson said in 1816, eight years after he left the presidency. To summarize, he said that this was 1816, not 1787; times change, in other words. This is 2017, not 1787. Besides, this originalist argument smells a whole lot like the evangelical belief that the Bible is literal. Gee, where did those dinosaurs come from at the Creationist museum then? A dinosaur is not a behemoth. We don't know what a behemoth was. Ironically, Antonin Scalia was a Catholic. I was raised Catholic and at the time, we didn't even read the Bible. We were taught Bible history in religion classes, and the Bible was viewed as symbolic.
Originalism is just another ideological strategy to combat liberal ideas. Besides, Supreme Court judges, or any judge for that matter, should avoid politics like the plague. I suppose conservatives, like bickering little children, would argue that liberal judges started it when they passed legislation like Roe vs. Wade. Well, conservative judges did everything in their power to make sure FDR's alphabet programs were never sanctioned. He went so far as to try to stack the court. But they eventually passed Social Security, and that sure as hell is not in the Constitution, but it is necessary. No, we don't need another Antonin Scalia; he did enough damage, thank you. We need a pragmatic judge who will decide a case on its merits. You know, like one where a presidential candidate is asking for a recount because he lost the election by like five hundred votes, and conservative judges don't turn him down. What a different world it would be if they hadn't and those hanging chads with democratic fingerprints all over them had been counted.
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And then I see you were expressing exactly that. Strict, literal interpretation of the Constitution is certainly muddy waters. That approach is an insult to reason and definitely will backfire eventually. In the case of the current administration, I hope that the meltdown will be very soon and less painful.
Ron
thought provoking article!!
Never stop writing!!
m