Happy Independence Day, George Will!

I used to read George Will's columns all the time. That was when I subscribed to Newsweek, and Will's column was one of the many items that magazine picked up from its parent newspaper, The Washington Post. I'm not such a fan anymore, partly because George turned out to be a hypocrite on family values, like so many "conservatives," and partly because I now prefer The Economist to any of the American newsmagazines.

This column, from April 28th, is pretty good, however. I might note that one of the Senators on the Judiciary Committee actually asked Elena Kagin one of Will's suggested questions. (It was the one about Thurgood Marshall's statement that "You do what you think is right and let the law catch up." She dodged the question by pointing out that, if confirmed, she would be Justice Kagin, not Justice Marshall. That's trivially obvious; the point is: Would she make decisions on the basis of Justice Marshall's dictum?

Will supports Justice Scalia's notion that the Constitution doesn't change, and that, in fact, the purpose of constitutions is to prevent change. That's fair enough, but this whole original intent idea founders, it seems to me, on one fact. From the text of the Constitution, as ratified, it is clear that the intent of the framers and ratifiers was to count slaves as 3/5ths of free people. It is also clear that no one, no one, at the Constitutional Convention actually liked this provision. The Southerners wanted to count their slaves as full people, not out of regard for human rights, but because that would have given them a lock on the House of Representatives, as well as the Senate. Many Northerners didn't want to count the slaves at all, because the slaves were not allowed to vote and lacked the other rights of people included in the citizenry. In other words, the original intent was to make a compromise between incompatible positions, so that the Constitution could be completed. I don't see where a modern judge gets a lot of guidance from that, except for Abraham Lincoln's point: It's all about the Union.

Souter Rejects Originalism

This is one of my favorite arguments. I think I've referred before to Original Meanings by Jack N. Rakove (New York: Alfred A. Knopf, 1997). Now E. J. Dionne uses his column to bring to our attention a speech given by retired Associate Justice David Souter reaffirming the intellectual poverty of originalism.

Souter gave the commencement address at Harvard this year, and he used that occasion to give a rather important speech on the flaws in the orginalist (or as he called it, "fair reading") approach to constitutional interpretation. One of those flaws is historical. The Constitution is a political document, created over a period of time in a contentious political process, and is not a unified whole, developed in a single, philosophically consistent mind. Therefore, there are tensions among various principles enunciated in the Constitution.

These tensions were based upon the tensions among the fundamental principles whose fulfillment we desire. Dionne quotes Souter as saying that "the Constitution emodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well." When the French said they wanted "liberty, equality, and brotherhood," or when Jefferson asserted our right to "life, liberty, and the pursuit of happiness," they failed to acknowledge that these aspirations may be incompatible, even conflicted, in practice.

Dionne offers another good essay, and I'm glad he has brought Justice Souter's speech to our attention.

Better Late Than Never: Joe Ellis on Original Intent

Okay, it's May 23, and this article by Joseph Ellis, the well-known historian, appeared on May 7. So I'm a little slow sometimes.

But Ellis, whose speciality is the history of the era in which the Constitution was written and ratified, makes a very important point here. Rather, he makes two points:

First, the doctrine of original intent is just that, a doctrine, a teaching propounded by one side in an ideological debate. Original intent is not some privilege mode of understanding the Constitution.

Second, the key problem with original intent is that it is impossible to identify that intent. A few years ago I read a book by Jack N. Rakove, Original Meanings, in which the same point was made. The essential problem is that the Constitution was adopted in a process involving a number of parties, and it is difficult to decide which of these parties, if any, had a particular set of intentions to which we ought to defer.

A good column by Ellis, and something which we should all consider, especially in light of the weird, biassed, and sometimes baseless statements coming from the Tea Partiers and others on the extreme right.