Monday, January 10, 2011

The Monday Memo: The Myth of Original Intent

The Constitution of the United States is a beautiful document.  It is also a document that is easily misunderstood and / or interpreted.  Liberals tend to think of the Constitution as a living document, to be interpreted by the current times, not bound by the ghosts of the past.  Conservatives tend to think of the Constitution as unmovable, that what it says is what it says and is not open to a different interpretation than what the writers of various sections and amendments intended, the concept of Original Intent.

No matter what Chief Justice Roberts or Justice Scalia may pronounce, original intent is a myth.  Nowhere in the Constitution does it require or even suggest that the Constitution must be interpreted by the intent of the writers.  Not even the writings of the Founders suggest that the Constitution can only be viewed through their ghostly eyes.

So why do conservatives use this concept of original intent to bludgeon liberals?  In my view, conservatives hide behind the concept of original intent when the clear wording of the Constitution and / or the current interpretation of the Constitution runs counter to their ideological views.  It is how those against birthright citizenship square their own ideological views against the plain text of the 14th Amendment.  It is how Justice Scalia squared his ideological views on gun ownership against the plain text of the 2nd Amendment and his ideological views on women’s rights against the plain text of the 14th Amendment.  It is how social conservatives square their ideological views on gay marriage against the plain text of the 9th and 14th Amendments.

Are we to be bound by the views of the ghosts of our past?  No, I don’t think so.  I think we are supposed to learn from the mistakes of our past and try not to repeat them.  The Constitution is not a suicide pact.  The Constitution is a living document, molded by the times.  It is our basis for a more just Union.  Original Intent is a myth and that fact needs to be shouted from the rooftops.

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