The left cares not to understand originalism
Clarence Page has authored yet another errant piece. In his Chicago Tribune article, “With Scalia Death, Your Vote Just Took on New Life,” he writes (emphasis added):
Originalism, simply put, holds that the U. S. Constitution must be applied based on the original meaning of its text, not on legislative history or the assumed intention of its authors.
Others define Originalism thusly:
Originalists think that the best way to interpret the Constitution is to determine how the Framers intended the Constitution to be interpreted. They look to several sources to determine this intent, including the contemporary writings of the framers, newspaper articles, the Federalist Papers, and the notes from the Constitutional Convention itself.
But even then, it is not that simple. There are essentially two types of “intent” recognized by scholars.
First, “original textual (semantic) intent,” the original intended meaning of the words used at that time in history.
Second, the “original intent” of the law crafted by those words, its desired effects going forward, and the expectations and the consequences of their having used those words.
Mr. Page disregards the “intent” of the authors. Originalism is steeped in intent. Though the intent may focus in different ways, “intent” is key.
Liberals hate originalism. They find it flawed and a vapid exercise. More pleasing and empowering is their way of interpreting the Constitution. As Randy Barnett explains in his book Restoring the Lost Constitution (p. 96):
… many scholars oppose originalism. Not because it cannot be done, but because the original meaning of the text can be ascertained and they find this meaning to be inadequate and objectionable. They reject the meaning of the Constitution as enacted and wish to substitute another meaning that they contend is superior. ... In other words, what the Constitution says is one thing; whether we approve of what it says is a separate question. ... [C]hoosing a method of interpretation because it justifies currently accepted outcomes puts the evaluative cart before the interpretive horse.
The fashions of the day are the determining factors in the world of liberalism. And that is why this nomination and this appointment are so critical. We must ask, do we want Donald Trump making the appointment or Ted Cruz?
Clarence Page concludes his ramblings regarding the Supreme Court appointment with this paragraph:
History could repeat itself, once liberals remember what’s at stake: the future of civil rights, abortion rights, press freedom, gun laws – you name it.
Care to explain, Clarence, who is threatening what in that list you offer? What civil rights, what press freedoms, what abortion rights are at stake with this coming appointment? Were they threatened by Judge Scalia? Andrew McCarthy makes clear who is threatening what.
The justices chosen by President Obama and the Democrats may be very good lawyers, but they have been selected because they will be reliable votes in favor of left-wing outcomes. That is politics, not law. And don’t tell me both sides do it. The justices favored by the conservative legal community that advises Republicans are those committed to faithful adherence to constitutional limits on the judiciary.
We may be pro-life, but (by and large) we are not looking for a justice to invent a constitutional prohibition on abortion; we are looking for a justice who says the Constitution does not speak to abortion — it leaves the issue to be resolved by the people, through their representatives.
We are looking for justices who respect the Constitution as a framework that promotes popular self-determination with certain well-known minority-rights exceptions, and who do not see litigation as an opportunity to impose a political agenda.
Yes, we are looking to be protected from being dictated to by the left under the guise of a “living Constitution,” but we are not asking to dictate our competing policy preferences – just to have a shot at persuading our fellow citizens of their merit through the democratic process.