The originalist paradox

One of the more unusual elements of the American political culture is the “originalist’s” reverence of the national constitution, including Antonin Scalia and Clarence Thomas. This claim, rather than being historically based, seems to have more political motivations, more useful for stagnating popular policy rather than on a tenable legal basis. Ironically enough, these same “originalists” fail to recognize several key facts about the national constitution’s history. The first is that there is no monolithic “original” meaning on what the second constitution should say, hence the heated debates at the conventions during the early years of the republic. The second fact is that the “originalist” position is itself unconstitutional because the constitution has an amendment process. This is critical, because, despite their differences, the Founding Fathers did agreed upon this particular legislative mechanism.

Clearly history is not the friend of the “originalist”. However, even moving beyond the ten amendments directly after the founding of the US, there have been sixteen new amendments made to the American constitution. In fact, there have been several amendments passed by Republican (conservative) majorities in Congress (14th, 15th, 16th, 17th, 26th, etc.). The issue then is not ideological, despite appearances. In fact, the issue for most of American history is not whether the American constitution should be reformed, but how it should be reformed and by whom  The answers to the first are up for debate, but the second was clearly stated by Lincoln in his Gettysburg Address: “of, by, and for the people”.

If one looks around the globe, every country has some form of constitutional reform, usually for a set period of years. However, there is no need to try to implement a foreign political system, because, one only needs to look at the American states. All state constitutions are required to revise their constitutions every number of years. In fact, going back to the Founding Fathers, Jefferson had in mind a specific time for revision: every twenty years, in fact, going so far as to say that “the dead have no rights”.  In his letter to Samuel Kerchival, he wrote:

“And lastly, let us provide in our constitution for it’s revision at stated periods. what these periods should be Nature herself indicates. by the European tables of mortality, of the Adults living at any one moment of time, a majority will be dead in about 19. years. at the end of that period then a new majority is come into place; or in other words a new generation. each generation is as independant of the one preceding, as that was of all which had gone before. it has then, like them, a right to chuse for itself the form of government it believes most promotive of it’s own happiness: consequently to accomodate to the circumstances in which it finds itself that recieved from it’s predecessors; and it is for the peace and good of mankind that a solemn opportunity of doing this every 19. or 20. years should be provided by the constitution; so that it may be handed on, with periodical repairs, from generation to generation to the end of time, if any thing human can so long endure.”

Just as a final note, there is another form of more democratic legislative mechanism that is never mentioned in national debates: initiatives, referendums, and recalls. In all state governments, there is some form of legislative referendum, which allows citizens to vote on an issue brought up by the legislature. Almost half of state governments in the US have some form of direct initiative, which allows for a popular vote on a citizen-initiated bill (motion). There are organizations who have tried to pass the national version of the state citizen-based legislations, including the National Citizen’s Initiative for Democracy.


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