Friday, February 25, 2011

Intellectually dishonest or just full of it?

With Supreme Court Justices Scalia and Thomas espousing original intent -- along with a gaggle of Tea Partiers and right wing Republicans -- an article I came across in Salon asked what original intent would look like today.
To begin with, the original document was silent on the right to vote. Voting rights were largely a matter of state law, and in 1787 most states limited the franchise to white, male, Protestant property owners, age 21 or older. The original Constitution did not allow for direct popular voting for president or the United States Senate, and there was no clear language even allowing for voting for members of the House of Representatives.
At the dawning of the Republic, those who could vote would cast their vote for electors who would select the President of the United States. Women, blacks, teenagers and those without property had no say. The mind shudders to think how some states might attempt to restrict the right to vote.
The original Constitution didn't include a Bill of Rights. Alexander Hamilton, one of the framers and authors of the Federalist Papers, argued against it. The Bill of Rights protects many rights the Tea Party considers hallowed, such as the freedom of speech and assembly and a right to bear arms. Lacking a Bill of Rights, these freedoms wouldn't be protected against limitation by the national government.
Yet more evidence that those believing the Constitution should be interpreted as if the Founding Fathers were asked have no idea what the intellectual consequences of such folly would be. Those that espouse that view also think the 1950's were an idyllic time in this country; conveniently forgetting about segregation and the great Red Scare.

Now, even if you want to attach the Bill of Rights to the Constitution for purposes of deriving original intent (and such a proposition would be iffy since the Constitution made no mention of those protections associated with the Bill of Rights), as written, the Bill of Rights only prohibits Congress from infringing upon certain rights -- there is no prohibition against action by the individual states.
But even if we consider the Bill of Rights, which was adopted in 1791, to be part of the original Constitution, there are still many limits on its use. Most importantly, as written, the Bill of Rights limited only national power -- not state power...Subscribe to an original intent reading of the Constitution and states are free to disregard individual rights, including free speech, property, religion and others.
Relying on original intent we would still have slavery as it was legally ended by the passage of the 13th Amendment. Blacks would still only count as 3/5 of a white man when it comes to votes and there would be no laws against segregation.

The Supreme Court would have no authority to interpret laws passed by Congress since the Constitution makes no mention of the Court's power to interpret the law.

Of course, if we followed the logic of original intent the United States would be involved in far fewer conflicts around the world as Congress would have the sole power to declare war. Not to mention that if we include the Bill of Rights, los federales would be unable to conduct warrantless searches. Federal criminal dockets would be a lot smaller since treason would be the only federal crime.

Ultimately the problem with original intent is that we have no idea what those men intended when they sat down to draft the Constitution. The Continental Congress may have gone into session to amend the Articles of Confederation with lofty political and philosophical aims but, once they got behind those doors, good ol' horsetrading was the coin of the realm.

If I can't figure out what my wife means at times, how on earth can we expect to know what a group of wealthy landowners meant when they met over 225 years ago? It defies all logic.

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