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Wack: Originalism being used to further an agenda; Jefferson wouldn't have approved

On a recent trip to D.C. we stood in the Jefferson Memorial reading the quotes inscribed on the walls. One in particular always strikes me:

“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.”

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Jefferson is advocating for openness to revisions to our laws and institutions as new ideas are discovered. This directly contradicts the conservative legal and political philosophies based in Originalism, or the belief that our laws, according to the Center for the Study of Constitutional Originalism at the University of San Diego School of Law “… should be interpreted in accordance with its original meaning – that, is, the meaning it had at the time of its enactment.”

Former Supreme Court Justice Antonin Scalia was a big proponent of Orginalism and used it as the rationale to push for reversal of Roe v. Wade and the Voting Rights Act, and to grant corporations new rights with the Citizens United case.

Conservative supporters of Originalism complain that criticisms of Originalism are unfair, and that the philosophy is not political or anti-democratic, it’s only a strict, logical interpretation of law. Revisions to laws and our Constitution can be made through the political processes prescribed in the founding documents, those supporters assert.

This is utter baloney. Everything is political, and in our current deeply polarized political environment, Originalism is yet another tool to implement a conservative political agenda. For conservatives today, Originalism is a philosophy of convenience, used when it serves current political ends, quietly ignored when it raises difficult questions.

What would Jefferson think about Originalism? We don’t have to speculate. He had very clear opinions about how the founding documents should be regarded.

The source of the prior quote was a letter to Samuel Kercheval in 1816, near the end of Jefferson’s life. The context was an inquiry from Kercheval about Jefferson’s opinions on an upcoming constitutional convention to correct many defects in the Virginia state constitution, which Jefferson helped draft by submitting several proposals. Jefferson readily admitted there were many mistakes made in Virginia, as well as in the U.S. Constitution. One of the biggest was the concentration of political power in the hands of wealthy landowners in the Eastern part of the state. Vested interests there resisted making any changes, but Jefferson wasn’t having it:

“But it will be said, it is easier to find faults than to amend them. I do not think their amendment so difficult as is pretended. Only lay down true principles, and adhere to them inflexibly. Do not be frightened into their surrender by the alarms of the timid, or the croakings of wealth against the ascendency of the people.”

Jefferson is referencing moral principles, like “all men are created equal” and “life, liberty, and pursuit of happiness.” He was also among our country’s first citizen scientists. He loved gathering data, analyzing it, and deducing those “true principles” which he tried to live his life by. But as a scientist, he knew this is an open-ended process, always subject to revision based on new data, new experiences, new perspectives.

That is the progressive spirit of continual improvement that guided Jefferson’s political philosophy, and the founding of our country. In his own words:

“Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead.”

If we are to revere the Founders, as I believe we should, they must be remembered in their entirety, missteps and successes, shortcomings and genius. Jefferson knew the work of creating just laws safeguarding individual liberty and furthering the common good will always remain incomplete.

Robert Wack writes from Westminster. He can be reached at Robert.p.wack@gmail.com.

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