Original Sins: The Nevada GOP Platform and Originalism

GOP Elephant Fear7. Have you read the Nevada Republican Party Platform? Describe your position on the platform and its relationship to your office.” Item Seven, questionnaire for candidates seeking endorsements from the Nevada Republican Party. [Ralston]

One instant impression from glancing over the contents of the Platform is that Winston Churchill was correct:  “Why, you may take the most gallant sailor, the most intrepid airman or the most audacious soldier, put them at a table together- what do you get? The sum of all fears.”

A candidate who supports the platform as drafted for 2012 could easily state that his or her advocacy is representative of the fear of our own government, the fear of changing demographics, the fear of immigrants, and the fear of some ethereal and intangible loss of control.  The document begins with a discussion of their perspective of the U.S. Constitution, including the insertion: “We expect our elected representatives and the courts will interpret the Constitution using original intent and context.”  (emphasis added)  This, one supposes, is intended to relieve some of those fears.

Original Sins

Really? Because Originalism, as a framework for Constitutional interpretation, is  about as entangling and self contradictory as can be imagined.   Here’s an example:

The Constitution forbids “cruel and unusual punishment.”  What does that mean?   Does it mean that we should return to the interpretation applied as late as 1837 in North Carolina?

“…by 1837, North Carolina required death for the crimes of murder, rape, statutory rape, slave-stealing, stealing bank notes, highway robbery, burglary, arson, castration, buggery, sodomy, bestiality, dueling where death occurs, hiding a slave with intent to free him, taking a free Negro out of state to sell him, bigamy, inciting slaves to rebel, circulating seditious literature among slaves, accessory to murder, robbery, burglary, arson, or mayhem and others.”  [Frontline]

However, the death penalty for slave incitement, or other abolitionist activities wasn’t included in statutes in New York or Pennsylvania.  By 1815 several states had reduced the application of the death penalty to two crimes, but some southern states actually increased its application to crimes committed by enslaved persons.   With this history in mind, what did the framers of the Constitution intend? Did some intend that the death penalty was cruel and unusual in cases of burglary? Did others assume the death penalty was appropriate, and neither cruel nor unusual, for those who harbored run-away slaves?

If a person is to judge Constitutional intent based on the interpretations of the framers then it’s imperative to know which framers to follow.  Are we to follow the intent as conceived in North Carolina? Or Pennsylvania? Or New York?  At this point we come to the second obvious problem with Originalism, the context.

What context? Do we define the context as that applicable to the delegates to the Constitutional convention from North Carolina?  It seems absurd to try to tease out the original context of “cruel and unusual punishment” when half the nation had Slave Statutes on their books, and half didn’t.  Is “whipping” a cruel and unusual punishment?  Caning, whipping, and beating have virtually disappeared in western democracies, while still being retained in some Asian and African nations.   We would have to ask the Originalists what they would make of the 1994 outcry when an American teenager, Michael Fay, was caned for vandalism in Singapore.   Was that “cruel and unusual” by our standards? If so, then haven’t our “standards” (or our interpretation) changed since the early 19th century?  Cass Sunstein articulates the essential problem with any attempt to create the illusory context for Constitutional interpretation:

“Whenever circumstances change, originalists have to engage in some extrapolation, asking how the original understanding applies to problems on which We the People had no view. When they engage in that extrapolation, they aren’t asking a purely historical question, but instead about the best or most appropriate understanding of a constitutional principle in an unanticipated context — the very question that originalists want to avoid.” [Bloomberg]

The extrapolation becomes a highly subjective exercise, which contrasts sharply with the perceived objectivity sought by conservative Originalists.  What would Alexander Hamilton and Thomas Jefferson have thought of the Dodd-Frank Act regulating the bankers whose manipulations caused the recent financial crisis?  Hamilton favored a strong central government, but he was also a proponent of banking and commercial interests. Jefferson favored a decentralized government, but he opposed the establishment of a national bank.   Attempts to re-litigate the Federalist and Anti-Federalist positions on commerce and banking would have precious little bearing on the issues related to such recent adaptations as credit default obligations, and derivative swaps.

The arguments underpinning the Nevada Republican Platform on Originalism imply a fear of a changing legal environment, perhaps one in which rights are extended to groups of people not counted in the framers notions of citizenry, such as African Americans, but the contentions themselves demand the (1) selection of pertinent 19th century opinion makers; (2) application of a context in which to interpret a statute which may or may not be appropriate to the specific issue debated; and (3) pure guess work as to how those who wrote the Constitution might be inclined to opine on modern institutions.  The Originalism which starts out to be objective, steadfast, and true, quickly devolves into subjective, transient, and relative.

Based on the essential problems with Originalism as expressed in the Nevada GOP platform a person would do well to follow Jon Ralston’s advice on Item 7.

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