James Madison died in 1836 so we cannot ask him whether your neighbor in 2018 should be allowed to fly a drone that can peer into your bedroom window. (Does the new Constitution contain a right of privacy or not, Mr. Madison? Is a drone required for a well-regulated militia and therefor the neighbor’s Second Amendment right outweighs an implied but not constitutionally specified right to privacy, Sir?)

Alexander Hamilton (d. 1804) is of little help with the question of how the First Amendment applies to the Internet. (Does the constitutional right to free speech leave the owners and operators of Facebook, Twitter, You Tube et al beyond reach of a libel suit for making money by publishing to the world false and damaging things about you and yours, Mr. Hamilton? Was Congress correct to give them a free pass to trample one’s reputation or business?)

Things change over time, and mostly get more complicated. As modernity proceeds, the claim of constitutional originalism as a foundation for jurisprudence weakens.

Originalists believe the meaning of the Constitution should be determined by reliance on the original understanding of those who wrote it. But we cannot know that with certainty. The incomplete historical record, its sometimes archaic language, the shifting concepts, the inherent compromises that made constitutional agreement possible turn the practice of originalism into a judicial séance to try to divine the real intent of the founders. Were they dealing at all times in specific, concrete ideas or expressing general principles?

The originalists’ claim on legitimacy does not entirely evaporate, because the expressed intent of the Constitution’s authors will always be a starting place for deciding constitutional questions. But the more decades and complexity between us and the Founding Fathers, the more tenuous tight-minded reliance on originalism becomes.

We will be hearing a great deal about originalism in the coming months of deliberation about Donald Trump’s latest selection for the Supreme Court. (This is being written before last night’s carefully staged reveal, though all of the judges on the list handed to Trump by The Federalist Society are originalists to some degree.)

We will also hear a great deal about “activist” judges, which for many originalists is the only possible alternative to their beliefs: jurisprudence devised on the run with judges saying what they wish the law to be instead of what, in originalists’ eyes, it clearly was, is and always must be.

As with many of the ideological gaps in our society, neither extreme has it precisely right, and the most judicious outcomes lie somewhere between those extremes.

As the debate continues in the coming months, it’s important to remember that each side will claim the moral and constitutional high ground when, in fact, neither holds it.

Like it or not, constitutional law is what the majority of justices declare it to be at a given moment (that’s what they get paid to do, after all.) How they get to that judgment is, as a practical matter, irrelevant.

How they explain how they got there is, however, highly relevant.

If the court’s new, originalism-infused five-member majority, as many fear, reaches back to 18 century thought to justify revocation of long-established constitutional rights endorsed by most Americans, they will face a high acceptance hurdle. They must write opinions that not only are supported by unambiguous evidence but also explain convincingly why societal and scientific changes since the 18 century that have been recognized as constitutional by their predecessor courts are suddenly inoperative.

 

Davis Merritt, Wichita journalist and author, can be reached at dmerritt9@cox.net.