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Constitutional Originalism Ain't What It's Cracked Up to Be

Constitutional Originalism Ain't What It's Cracked Up to Be


Yesterday, the House of Representatives conducted an historic reading of the U.S. Constitution to begin its legislative session. Well...sort of. To be more precise, the House read an abridged version of the Constitution, purged of any vestigial mention of slavery. The lead Member behind this operation, Rep. Bob Goodlatte (R-VA) was, apparently, motivated by a desire to encourage Members to adhere more strictly to the Constitution when offering legislation:

[W]e think that a lot of times today, members of Congress introduce a bill because they think it's a great thing. And it might be a wonderful thing, but it may not at all be what was intended by our Founding Fathers to be a part of our federal government, as opposed to what our states do or what we as individuals do in a free country.

The Founding Fathers intended many things. One was clearly slavery. In fact, they crafted one of the sections eliminated from the new redacted Constitution--the so-called "three-fifths" clause--to guarantee the South a permanent veto over Northern attempts to abolish slavery. The Congressman's zeal for an originalist interpretation of the Constitution appears to extend only so far as political squeamishness allows.

In the spirit of Rep. Goodlatte's selective reading of the Constitution, allow me to offer my own edits. The following is a paired down version of the document that I believe will provide for much more mellifluous governance. In addition to eradicating the Constitution of all of its anachronisms, I elected to remove all doubt as to whether or not the Framers intended to confer an individual right to bear arms by simply deleting the Second Amendment. Further, I've skirted the issue of another Bush v. Gore by eliminating the Electoral College. In hopes of exercising my right to vote, guaranteed by the 15th Amendment, I granted the District of Columbia statehood. Scroll through my track changes below to view a complete set of improvements. Revised and Extended Constitution

In truth, Rep. Goodlatte cannot be blamed for his discomfort with certain sections of the Constitution. It is an imperfect document, framed by (and only by) imperfect men. Fortunately, the Framers had no intention of binding us for all eternity to the prejudices, proclivities, and short-sightedness of their generation. The Chair recognizes the Gentleman from New York, Mr. Alexander Hamilton:

In pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power proper to be lodged in the national government from an estimate of its immediate necessities. There ought to be a CAPACITY [emphasis in original] to provide for future contingencies as they may happen (Federalist 34).

In their wisdom, the Framers provided a legislative branch to constantly push the boundaries erected by the Constitution by creating new laws responsive to needs they could never have imagined. They provided a judicial branch to ensure that those laws hold true to the rights and procedures codified in the document, while also interpreting the living Constitution so that our understanding of the document hues to the reality with which we are confronted. Congress could always use a refresher on the Constitution, but no elected official should operate under the pretense that government is permitted to reach no further than the clairvoyant, yet limited, foresight of the Framers. Moreover, those who persist in a philosophy of originalism should remove their political blinders and embrace the whole Constitution, even the unsettling parts, and struggle with the history of our nation, including its original sin of slavery.

Published: 1/07/2011

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