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500 Words on Constitutional Originalism

Robert Franklin

Posted on May 2, 2019 22:15

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An originalist view of the Constitution is not only foolish and out-of-touch with how things actually work, but it can be toxic to the systems that help societies move.

In too many ways, our commitment to liberty has been a liability and we've checked and balanced ourselves into governmental stagnation. Perhaps it's time to do something a bit different, yes?

This is the problem with Constitutional originalism, a remarkably misguided view that the Constitution should be interpreted in the context from which it was written. It's a belief that implies what may have worked in the 18th Century can absolutely work today, as if 21st Century America bears any real resemblance.

As a legal philosophy, constitutional originalism isn't new, but its invasion of modern conservatism can be traced back to the 1980s. It's a guiding light among portions of the conservative movement that see 21st Century businessmen, entrepreneurs, and pundits don era-specific wool coats and carry muskets, LARPing characters from their American Revolution-themed imaginations.

It's political points for others.

While there are many reforms that need to be achieved before we can start making genuine progress on social issues plaguing the country, reforming our reluctance to see the deficiencies in the Constitution is a significant one. The document is flawed, in many ways, but it's rendered even more so when people in significant governmental and judicial positions decide we're already too liberal with it.

Whether they're driven by hyper-partisanship, ideological purity, or whatever, the ubiquitousness of constitutional originalism among the American conservative bloc has only really achieved making a sluggish machine even slower.

But beyond those who may dress up political obstructionism as Constitutional originalism, the very notion of applying originalist thinking to a 230-year-old document is imbecilic. The United States in 2019 is a much different place than the United States of the 1790s, and as such, must be governed differently.

That isn't to say there aren't parts of the Constitution worth keeping, and perhaps even interpreting based on original meaning, but the whole of the document is in desperate need of modernization to accommodate not only civil rights advancements and social progress made since it was written, but also to address existential threats that may not have been relevant three centuries ago.

There are a number of issues with the structure of American government, from the number of choke points in the legislative process to district gerrymandering to the Electoral College. These, and others, could be resolved through Constitutional means, but with a government as lazy as ours, and many within it subscribing to an originalist view of Constitutional matters, it seems unlikely these institutional issues will find resolution anytime soon. Too many classes of people in America live as second-class citizens. Constitutional reforms could address these problems as well.

But none of these issues, nor the litany of others we face as a country, will be properly addressed and reformed without an understanding that the Constitution is a living document governing a living society.

No amount of wishful thinking or old-timey nostalgia will change that.

Robert Franklin

Posted on May 2, 2019 22:15

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Source: Quartz

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