Stepping aside from the Supreme Court:
whether it intends to eliminate all restrictions on campaign finance
under the guise of Freedom of Speech (or has only done so
unintentionally), these following articles examine the foundation of
Neil Gorsuch's political philosophy. Like the late Antonin Scalia,
Justice Gorsuch ascribes to Originalism. And, though neither you nor
I am a professor of law (and if you are I offer an apology), it is
not absurd to contesting the validity of this ideology.
Before one can furnish Originalism's
inadequacies, a brief history is here provided. Though historians
will quibble about the initial inventor, it seems fair to give credit
to Attorney General Edwin Meese III, who in 1985, devised and
developed in the idea in a collection of speeches. Though The
Heritage Foundation (an organization funded by the Koch bothers) will
declare to visitors of its website, that “Originalism ... is today
the dominant theory of constitutional interpretation,” consider
that only one, maybe two Originalists judge from the bench of the
Supreme Court. Though a minority, there are branches of Originalism:
most crucially textualists and intentionalists. Both believe the
meaning of the Constitution is fixed and immutable, but their source
of understanding differs. Textualists believe the Constitution must
be read as an average person, living during the year of
Constitutional Convention, would have understood the literal meaning.
Intentionalists believe the meaning of the Constitution should be
based on what the writers intended.
There are simple flaws associated with
either position. Obviously, Textualists don't mean the average
person. They mean a well educated lawyer. Just as the Catholic
Church needs priests to explain the Bible to the layperson,
Textualists need lawyers to justify their interpretation of the
Constitution. And this is fine, anyone without the proper historical
context of the processes would fail to understand the Constitution:
its clearly not just the words written on the page, but the intent.
But Intentionalists can't escape a
simple logical difficulty either. It wasn't just one person who
wrote the Constitution. It wouldn't even be fair to limit the credit
to the members of Constitutional Convention. Persons not at the
convention, influence it's theoretical existence by the practical
policies in the states, and from across the globe with their letters.
And the amendments have irrevocably marred any attempt to pinpoint
an individual because each was born of a multitude of voices crying
out for change.
But if one were desperate to seek out
(and this is for the sake of argument, so we'll have the opportunity
to discuss some of the supposed results of Originalism later) a
source, then let's pursue this quixotic quest. With the sharp gaze
of a bald eagle, seek those who desired the institution of the
Constitution, and who shaped it from the earliest date. There are
two politicians who can not hide from the searching eye, and well
respected already in 1786, this must be the beginning.
The Annapolis Convention was convened
by nine of the thirteen states to address trade barriers between the
members, now joined in the Articles of Confederation. But due to
weather and the common delays of travel, only delegates from five
states arrived in time. They titled the event, “Meeting of
Commissioners to Remedy Defects of the Federal Government,” clearly
expressing the purpose of their assembly. Over four days, Eleven
delegates drafted, proposed, and unanimously recommended the
Confederation Congress approve and convene a broader convention,
imbued with increased power for altering the Articles. Of those
eleven, seven would meet again at the Philadelphia Convention (later
known as the Constitutional Convention): Richard Bassett, John
Dickinson, Alexander Hamilton, William Houston, James Madison, Edmund
Randolph, and George Read. All but one of these men would sign the
Constitution.
The Convention of 1787 was
significantly expanded in scope, but still limited in intent to
suggest amendments to the Articles to stabilize the issues afflicting
it. Seventy delegates were invited, fifty-five attended, and
thirty-nine found the final document worthy of the signature (while
thirteen left early, and three remained to declare their opposition).
It must always be remembered: the
Philadelphia Convention did not have the authority to author the
document, and set out to approve it as they did. They were not
authorized to design a new constitution, they were supposed to design
an amendment or two. According to the Articles of Confederation, any
amendment to the Articles required a unanimous approval of the
states. But The Constitution's Article VII illegitimately overrode
the Articles, declaring the Constitution to be in effect with only
the approval of nine states. The paper and the method by which it
came to be enforced were illegal, so the idea of infusing it with
some mystical aura of lawfulness and infallibility, and the ability
to know what its designers thought it meant is an egotistical
insanity. But since we are already engage on this fool's errand, let
us continue.
Searching for the creators, there are
two people who had a larger part in the Constitution's design and
construction than any others. And after their time at the Annapolis
Convention, they were invited to Philadelphia. Continuing in the
tradition of the Annapolis Convention, weather and common travel
delayed the arrival of state delegations. The Virginia delegation
arrived first, and while they waited, future president, James Madison
convinced his colleagues of the strength of his plan, termed the
Virginia Plan. While other plans were produced at the Convention
(including the Hamilton Plan), ultimately the final result was a
variation of Madison's plan. This is not to claim that Madison and
Hamilton were the sole minds from which the Constitution sprung.
Every one of the members presumably contributed some insight,
especially Edmund Rudolph, John Rutledge, and Roger Sherman.
Yet Madison had the largest part, and
along with his partner, Hamilton, offered the strongest support and
explanation of the young document. In the Federalist Papers, these
two, along with future Supreme Court Chief Justice John Jay, outlined
their understanding of the Constitution. And it must be assumed that
if anyone understood the document, it must be the creators.
Fortunately, they explained to the world what their intent was.
Next week, how do the Federalist Papers compare with Originalism.
Originalism and the Federalist
Papers
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