Originalist Sin

Let’s say you and I move in together. We’ve been living with our parents, but we’re sick of them telling us what to do. And what do they know anyway? It’s blissful at first, all that freedom, but after a while little things need to be settled, and a few big ones. We make some rules. We mostly follow them.

The years go by. Children come and go. Jobs and cities come and go. One day we look at one another and everything but our affection for each other is different than it was on that fateful day when we took the plunge together. You’ve developed a chronic limp. I’ve got a bad shoulder. You need help getting down the stairs. I need help getting down the dinner plates.

Through the years, though, we’ve stayed together. We’ve had a spat or two, some rocky times, but we’ve always worked it out. We’ve adapted. In fact, if I had to point to one thing besides our love for one another as the key to the durability of our union, I would say it is our ability to adapt.

We are no longer the young people we were, and I’m not talking about our bodies. We are the same in some ways, but we have gained wisdom and perspective. Our ideals have stayed with us, but they are tempered now by the lessons we have learned about what life really is, about what it means to live together, to stay together, to care for one another. Much as I loved him, I would not want the young man I was when we met to make decisions for us today.

Perhaps it is too sentimental a perspective, too personal, but I look upon our country the same way I do two committed people living together. We made our rules when we are young and, by and large, as the centuries have gone by we have adapted in ways small and large to accommodate our changing circumstances. We had that pretty serious disagreement we called the Civil War, but we worked through that, if you can call killing so many of us working through it. I’d have to say that the country we took forward after 1865 has not, still, fully gotten over the pain and disillusionment of that bitter fight. But we have stayed together.

Big issues divide us still. Should government interfere in our businesses? Should it dictate our morals? Should it tax us to spend for programs that we don’t support or that offend our religious views? These are the national equivalent of who does the chores, who manages the money, who stays home from work when a child is sick. Anyone who has been involved in a domestic tiff at two in the morning knows how tough these issues can be, how emotional.

What domestic partners also know is that arrangements made when there were no children, before one partner got an amazing job offer in another city, before one got cancer, aren’t always well suited to those new circumstances. Before you have children, no one has to stay home with them. After you do, you have to make new rules.

Our system of laws works like that. Legislatures make new laws to deal with new circumstances. They repeal laws that turned out to be a mistake. But there is one set of rules that is not so easily changed: the Constitution. Generally, that’s a good thing. It has stood us well. It has held us together. But it does present this challenge for our courts: it must govern us as we are today, not as we were in 1787.

It must do that, unless, as a judge, you decide it’s just too hard to adapt our founding document to modern times. You can lighten your judicial burden considerably by deciding that the Constitution means what the Founding Fathers intended it to mean and that’s that. This is an intellectually and morally lazy approach masquerading as judicial modesty. It is called “originalism,” and it is the governing credo of at least two of our current Supreme Court Justices: Antonin Scalia and Clarence Thomas.

Working with that cramped view requires stubborn determination. There were no assault weapons in 1787. There was no electronic surveillance; not even any electricity. No woman was saying it ought to be her legal right to get an abortion, although many died trying; and it wouldn’t have mattered if they had been saying that, they couldn’t have made it happen because they didn’t have the right to vote. There must have been gay men and women, but they weren’t clamoring for the right to get married. They weren’t clamoring for anything; they were slipping around in the shadows. Interstate commerce was conducted from a horse drawn wagon.

The changes the country has gone through are similar to those families go through. And let me just say: I would not like to be married to an originalist.

Who cares what Madison thought? Or Jefferson (the slave owner who made a mistress of one of his slaves). Sure, they were smart guys, but they are long dead, as are their times. The Constitution works today by common consent. Not because the landed aristocracy of the eighteenth century gave us a bible. Our form of government is a political compact, not a religion. And as a compact, the parties who are governed by it must want to be, or it will fall apart.

As a nation, we have grown and changed. If the rules that ease our coexistence are to be effective, and therefore to last, they must address our present circumstances. We have children in the house. Someone has to stay home with them. Sacrifices of individual liberty must be made (the right to bear arms), accommodations of changing norms (gay marriage). Are those sacrifices worth it? The answer to that can be found in any home? Are you a better person for the sacrifices and accommodations you have made for your partner and your children? Or would you be happier if you could do whatever you damn-well pleased?