With the incessant swirl of insanity expressed through “alternative facts,” it’s hard to maintain focus before the next horror of the Trump regime reveals itself. Wasn’t it just the other day we were asking if the President was being blackmailed by a Russian sex tape? Ah, simpler times they were.
Even given the wide range of things people can focus on, and in the process experience emotions from rage to terror and even sadness, the most important thing that has happened thus far is Trump’s nomination of Neil Gorsuch to the Supreme Court.
I say this because the appointment of a relatively young Justice to the Supreme Court will have implications for decades to come. That is not to minimize the importance and negative impact of anything else that Trump has done so far, nor the pain he is inflicting in America and around the world.
Neil Gorsuch is currently a federal judge and, if you haven’t heard the term reported in recent coverage of him, he is considered an “originalist.” Who doesn’t like a good origin story?
Well, let me tell you this tale of “originalism” is the biggest crock going (the only bigger crock is that the Republicans didn’t steal this from President Obama by leaving the seat open for over a year).
It amounts to saying that we can only interpret things based on how the originalist imagines the nation was at the time the Constitution was written. If one writes a constitution in middle of winter, must we keep the heat blasting in mid-summer? In this metaphor someone would sensably say “pass a law and get the heat shut off.” To have continuing utility we need, and if properly understood already have, a Constitution that is a compass that allows us to adjust course and find our way under the changing circumstances presented by an evolving world. So the reality is the court will always be necessary to interpret the conditions and keep us weather wise whether it’s cold or hot. The orginalists, by contrast, would accept the necessity of heat stroke.
Take the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
As there is no debate that the Founders wanted the Constitution to endure for generations, one can infer that what they intended was to establish the principle that the government may not impose any punishment that, given the circumstances of the time, is considered cruel and unusual. That’s why they used the open-ended language.
As indicated by the minimum age requirement for the presidency and numerous other provisions, when the Founders wanted to be very precise, they had no trouble doing so. They could have listed the specific punishments they considered cruel or unusual, but instead they deliberately opted for more general guidance. Likewise with other critical provisions, such as the “due process” clause or the prohibitions on “unreasonable” searches and seizures. They recognized they could not predict the future and they trusted future generations to apply these general principles intelligently, consistent with the underlying objectives of these principles.
It’s important that those who oppose orignailism, not just Gorsuch, make this point. As Trump shows no signs of slowing down, it’s important to keep our foot on the gas.
And remember what Thomas Jefferson said:
“I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
Michael Racioppo is the Executive Director of the Gowanus Canal Community Development Corporation and the Vice Chair of Community Board 6