Do Proponents of “Originalism” Have Healthy Memories?

Originalism refers to the notion that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written.  The first question is how can judges do this?  The judges need to accomplish both time travel and mind reading.  That is, they need to travel back in time and somehow understand what these now deceased individuals were thinking.

But even if this could be accomplished, is it desirable?  According to the Constitution at that  time, slavery was legal, but blacks were counted as two-thirds of a human being, and woman could not vote.  So what is the point of going back in time?  Textualists are judges who only consider  the words of the law being reviewed should be considered, neither the writers’ intent nor the consequences of the decision.  So words rather than their intended meanings and results are what is important?

Fortunately, these gross injustices were corrected by amendments to the Constitution. This was the result of the Founding Fathers realizing that there would be a need to amend the Constitution.  It seems clear that they viewed the Constitution to be a fluid document that would need to be changed over time.

So why do these concepts still prevail? Individuals who advocate these concepts are actually insulting the Founding Founders.  HM is certain that if Founding Fathers were asked about this mind reading task, they would tell people of the future not to try to travel back in time.  HM is able to make this assertion from the reading of the Constitution without having to take recourse to time travel and mind reading.

Unfortunately, these beliefs of originalism and textualism are litmus tests for some Senators in approving Supreme Court nominees.  HM thinks that any judge holding to these beliefs does not belong in Traffic Court, much less the Supreme Court.  This acceptance of originalism provides a key insight as to the break between the legal system and justice.

In case the reader has still not inferred the answer to the question posed in the title, the answer is no.

© Douglas Griffith and healthymemory.wordpress.com, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Douglas Griffith and healthymemory.wordpress.com with appropriate and specific direction to the original content.

Advertisements

Tags: , , , , , , ,

One Response to “Do Proponents of “Originalism” Have Healthy Memories?”

  1. russvane3 Says:

    The concept is of enduring documents: Magna Carta, the Bible, the Constitution, etc. were written to be understood and separable in the legal sense. If one part of the contract has an error, the contract is not entirely devoid of value.
    Entire disciplines are based on understanding other ages and times well: French 16th century literature, etc. The argument seems false on its face.
    Are enduring documents to be studied based on their times – certainly. Did the writers get somethings wrong? I believe this to be so. – Actually the amendments come from Virginia’s experience and I think George Mason and James Monroe or James Madison. I have not looked it up.
    So learning should be encouraged, but if we have found the wisdom of others to be valuable we should seek it and apply what we’ve found.
    I’m sure that I have a healthy, although imperfect memory.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: