Sunday, November 13, 2005

Original Contempt

A small tempest has broken out in the wake of Jesse Jackson's use of the phrase "the Constitution in Exile movement." to describe so-called conservative legal theorists who cleave to the doctrine of original intent in Constitutional Law. It seems that such folks object to the CIE label.

A lay person's view of the CIE brouhaha may be useful here, since the debate, I think, illuminates the intersection between legal fiction and political reality. Originalists object to the term not because it is undiscriptive nor even because it has been "imposed" on them. Rather, they object because it exposes the essentially political character of their arguments. Understandibly, they would prefer their positions to be judged by the criteria of legal scholasticism rather than real world consequences. Indentifying this school of thought as politically driven strips it of its pretensions of academic objectivity and exposes it as simply another front in the ongoing political wars.

Outside the hothouse of legal theory, the notion of original intent collapses in the face historical fact. It could hardly be otherwise since it is based on manifestly absurd, though superficially "conservative", premises. The first and most nonsensical being that the Constitution as a document contains the distilled and homogenous intent of the framers in unambiguous language. The fabled "plain meaning" dear to the heart of strict constructionists. By this standard the judiciary's task is limited to defending the constitutional status quo against extra-legislative, subversive innovations. Sounds quite Conservative.

The trouble with this argument is that no one could seriously claim that Constitutional interpretation has remained static for the past 200 years. Constitutional standards of the present are fundamentally different than they were at the time of the framing. This means that any "originalist" argument
is ipso facto a restorationist position. Hence the soubriquet of "the constitution in exile". The legal ideologues lumped together under this heading all hark back to some previous point in our jurisprudence when their version of constitutionality supposedly held sway. They differ only as to where the break with the past occured. Some focus on Rowe v. Wade. Some point to the use of the commerce clause to forward Civil Rights. The academically inclined reach back toward the 30's and the New Deal.

However, there is no logical reason to stop at any of the above points. The greatest re-writes of constitutional interpretation occurred during the 19th century. The first being the Dred Scott Decision, possibly the greatest single attempt at judicial usurpation in our history. The decision attempted to elevate slavery to a first principal of constitutional law and thereby obligate not only the Federal Government but the Governments of the Free States to enforce its primacy. So much for States Rights.

The second, which liquidated the first, was the Civil War. Constitutional law as it emerged from that conflict was a very different animal to what it had been before. This because the war established not just the primacy but the supremacy of Federal authority over that of the various States.

The logic of the originalists position leads them not 40, 50 or 70 but over a hundred years back in time. If applied consistently, it would require liquidation of all "faulty" precendents issuing from the changed constitutional circumstances post 1865. This is not a "conservative" position whether legal or political. It is a radical, reactionary rationale for dismantling every vestige of modern U.S. governance. Particularly since it calls into question the legitimacy of every Federal Administration since James Buchanan's. Indeed, if the originalist are correct, every Administration since Lincoln's has governed extra-constitutionally.

No doubt the originalists would object to this analysis. Just as they object to being described as a movement of any kind. They prefer to be seen as disinterested professionals seeking a return to the pure springs of Constitutional Law. Nothing political you see.

This disingenuous pose, whether sincerely or cynically held, cannot be sustained. There is no criteria by which the doctrine of original intent can be limited to a particular point of law other than expedience. The use of original intent to attack particular laws without admitting its larger, radical implications is a political rather than legal choice. Those who engage in such gamesmanship have no grounds to complain when they are called on it.