Tuesday, January 15, 2013

A Modest Proposal for Resolving Originalist Disputes

A modest proposal as to how originalists could resolve debates among themselves as to the original meaning of the constitution.

Image Source: X CURMUDGEON

Originalism is defined according to Wikipedia as follows:
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws (which is the realm of the legislative branch) but only to uphold them.
If one seeks to find the original meaning of the constitution sometimes differences occur. Let me give some examples to demonstrate the point.

There is no one who is more of a founding father than Thomas Jefferson, who wrote the first draft of the Declaration of Independence. While he was serving as Ambassador to France during the constitutional convention, his views were strongly represented by James Monroe. As an early two-term president he made decisions that helped define the meaning of the constitution. So what did Jefferson believe the constitution meant?

  • When the First Bank of the United States was chartered in 1791, Jefferson argued that the Congress exceeded its constitutional authority, and that powers not expressly given to the Congress in the constitution were denied to it.
  • When he made the Louisiana Purchase in 1803 he recognized that the constitution did not grant the president the power to buy new territory for the country, but did so anyway.
There were two views on the constitution among the founding fathers:
  • The Federalists: "The Federalists left a lasting imprint as they fashioned a strong new government with a sound financial base, and (in the person of Chief Justice John Marshall) decisively shaped Supreme Court policies for another three decades." Federalists included Alexander Hamilton and John Adams, John Marshall and George Washington.
  • The Anti-Federalists were "a movement that opposed the creation of a stronger U.S. federal government and which later opposed the ratification of the Constitution of 1787." Anti-federalists included Patrick Henry, Samuel Adams, George Mason, James Madison and George Clinton.
The Federalists and Anti-Federalists agreed on amending the constitution in order that it might be ratified. 

According to Wikipedia an initial set of 12 amendments was recommended for ratification by the states:
The amendments were introduced by James Madison to the 1st United States Congress as a series of legislative articles. They were adopted by the House of Representatives on August 21, 1789, formally proposed by joint resolution of Congress on September 25, 1789.
LexisNexis states:
Twelve Amendments were proposed in 1789 with articles three through 12 being ratified as the Bill of Rights. Some 203 years later, the second article included with the original 12 was ratified as the 27th Amendment. But, the first article proposed was never ratified.
The never-ratified amendment called for representatives to the House of Representatives to be elected from small districts.

The second amendment in what is now called the Bill of Rights famously states:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The Burr–Hamilton duel was fought between to of the founding fathers -- the former Secretary of the Treasury Alexander Hamilton and sitting Vice President Aaron Burr.

I suggest that originalists follow their precedent and settle disputes on the original meaning of articles of the constitution by dueling. Of course, they should not be limited to using dueling pistols from the 18th century. I would suggest that they use assault weapons.

Source of this 20th century image of the Burr-Hamilton duel.

No comments: