Originalism and its Internal Irony

Conservatives, particularly Tea Partiers, have decided lately to go back to the U.S. constitution in order to define their political philosophy. They cite the originalism of Antonin Scalia, for instance, as a guiding principle and disagree with such federal actions as health care reform and environmental regulation as "unconstitutional," etc. etc.

There is, however, some internal irony in their idea of originalism. It begins here:

The Constitution of the United States was not written simply by masters of political philosophy as we generally like to believe, but was instead written largely by politicians who were trying to balance out the needs of individual states with the need for control. A lot of what finally became constitutional law was originally made under compromise - between big and small states, northern and southern states, etc. Our master document is not exactly a holy scripture of american politics. State's Rights proponents have to remember that it was because of the inherent flaws of the weak central government put in place by the Articles of Confederation (a document that i wager a lot of these Tea Party patriots would have loved had they lived at the time) that brought about the creation of the Constitution.

The major arguments at the time are not unlike the one's that we see now: The Federalists wanted a stronger, central, "big government," while the Democrats wanted a weaker, smaller federal government that gave most rights to the states. In this way, I would see the tea party members of today most likely following the ideas of Democrats of the time such as Thomas Jefferson. It was the same Thomas Jefferson, however, that said, "The Earth belongs always to the living generation. Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force and not of right."

In other words, according to the ideals of small government President Jefferson, the constitution of the United States has expired - many times, in fact.

Though I am not suggesting that we simply throw away our constitution, I do believe that Jefferson had a point. The constitution as it was written in 1789 is not exactly as relevant as it could be to We, the Americans of 2010. There were no cars in 1789, no cell phones, no TV or internet or mass media really beyond newspapers and books (both of which regrettably are soon to be only history), no space travel, no nuclear weapons, no guns that could fire more than 3 bullets per minute. The idea of originalism is excessively conservative (in its literal definition) to the point of virtual lunacy - the point where one looks at 2010 and wishes they could wake up in 1789. Originalism contradicts the very ideas of one of the most important Founding Fathers. If Antonin Scalia or Robert Bork want to live in 1789 that is their business, but this is 2010, gentlemen.

Furthermore, if originalists want to cite the Founding Fathers as their examples, they may not want to look at the actual history. If they do, they will find that many of the actions taken by the first presidents entirely contradicted the constitution, as they realized that it had restricted them to the point of not allowing for sound governing (for example, the creation of the Bank of the United States by Washington and the Louisiana Purchase by Jefferson, both unconstitutional from a strict constructionist, originalist perspective).

If the constitution does still have relevance to us it is as a Living Document that changes meaning as we change our interpretation of it. And if Tea Partiers want to live in an America where individuals are not protected from corporations, where we apologize to BP for the evil governments treatment of it after it DESTROYED and polluted our homes, then in my opinion they also wish they were living in 1789 (when the Constitution was written and there were no large corporations, just FYI) and do not deserve our attention.