More old-time Constitution
Even the usually upbeat E.J. Dionne is unsettled this July Fourth. The United States built itself on ideals of self-governance in its founding documents, not on ethnicity, race, blood or soil, he writes:
Yet thanks especially to this term’s Supreme Court rulings on abortion, guns and the climate, this July Fourth finds us riven about how to read our own founding and the documents the Founders bequeathed us. We are torn about what we love most about our country.
It is a national habit to insist that whatever we happen to be asserting about politics is consistent with what the Founders envisioned. Just listen to how often members of the House select committee investigating the Jan. 6, 2021, insurrection and Donald Trump’s lawbreaking have spoken of the Constitution and its obligations.
Even now, when we are increasingly aware of how racism and sexism afflicted the founding generation, most Americans still prefer to be on the side of Jefferson and Madison, Adams and Hamilton. Not for nothing is “Hamilton” a smash hit.
Until recently, postwar generations (not postbellum, mind you) saw progress as inevitable as the next annoying software update.
Slowly, however, the kind of conservative reaction to progress that postbellum America saw after the Civil War has emerged since the latter 20th century. Fueled once again by racial animus and status anxiety, backlash against social and demographic change, exacerbated by globalization and economic uncertainty, has cast underlying historic tensions in the country into sharp, sometimes violent relief.
Dionne writes that in the progressive view, “the Constitution is not a straitjacket designed to keep the country where it was in 1789 or 1868 or whatever other date a nostalgic conservatism might point to.” The conservative majority on the Supreme Court, however, has fallen into constitutional doctrinal error, originalism, “an effort to invoke the Constitution to tether the country to the past.”
Uneasy with cultural change? Give us that old-time Constitution, conservative justices sing, making up lyrics as they go. Lower courts packed with ideological jurists harmonize from the wings. They insist their regressive reading of American scripture is historical, traditional. “The majority’s gun ruling used the words ‘historical tradition’ a dozen times,” Dionne reminds.
This is what “originalism” as a doctrine really comes down to. If the progressive view of the American experience focuses on the changes needed to live up to our aspirations, the conservative imperative is to preserve — and in many cases move back to — what made the country, well, “great” at some earlier juncture.
“Historical tradition” being in the selective eye of interpreters who, like biblical literalists, claim not to interpret at all.
If Jefferson, Madison, Adams and Hamilton are the Four Evangelists of the republic, perhaps a few words of wisdom about the heresy of originalism are approporiate this morning.
For his part, Jefferson believed the new republic must change, evolve, and progress:
“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 a civilized society to remain ever under the regimen of their barbarous ancestors.”
-Excerpted from a letter to Samuel Kercheval, July 12, 1816.
Some human minds do not wish to progress. The conservative court majority, would jam the land of the free into the coat of the slave.
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