Original Intent and Fundamentalism
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As I mentioned before, I am working my way through papers regarding the concept of Original Intent. I started this little project because the Constitutional Law text book we use is absolutely in love with the practice, but provided very little in the way of description or justification for its use. I assumed there had to be more than they had space for. So far, I think my assumption may have been wrong.
I am not done working through the material that I was pointed to (by, among others, Prof. Jeff cooper and Jay Reding, and, of course, my Prof.), so I will withhold judgement on the details of the argument until I have. However, what has struck me - and I am sure I am not the first to notice this - is the similarity between original intent and religious fundamentalism. Both forms of thought rely on a reverence for the past, and both forms of thought do not allow for possibility of wisdom.
On the surface, I admit, the connection may look a little tenuous. The type of Fundamentalism I am referring to is biblical literalism - the idea that everything in the Bible is an absolutely accurate account of a given event. Nothing is parable (unless words to the effect “the following is a parable” appear), nothing is poetic for effect, nothing is simplified for understanding. Original Intent is the notion that we can know what the drafters of the constitution meant when they wrote a particular passage, and we should base our reading of the Constitution on that understanding. In one case, literalism is supreme, in the other, interpretation and historical research. I believe, however, that both are essentially rigid, inflexible systems that allow for no growth in a society.
To a literalism, the story of Sodom and Gomorra(sp?) is a condemnation of homosexuals. I do not see that condemnation in the story of Sodom and Gomorra. Informed by the brutal history of mankind in the last two thousand years, and informed by the teachings of Christ as a whole, I see a warning about treating people - even strangers - kindly. I think a literalism would probably not make that connection, as it would not occur to them to read the passage as anything other than a history. Justice Scalia’s contention that Catholicism supports the death penalty because the Church once interpreted the scriptures so is another example. Scalia’s vision does not allow for the Church to have gained wisdom. It does not allow for the Bishops and Popes to look at the words of Christ and re-examine their meaning in light of what history and experience has taught them about the sanctity of life and the effects of the death penalty on the souls of their parishioners and the nations those parishioners inhabit. In other, words, the Church can never, ever learn from its actions - it must be forever tied to its original perceptions.
Original Intent has very much the same effect. Scalia believes that the death penalty is Constitution because, in part, the writers of the Constitution did not believe that the death penalty was “cruel and unusual punishment”. Because the experiences of the first generation of Americans taught them one thing, we as a people are never allowed to take what we have learned as a people and apply it to the words of the Constitution. there is no room for growth, no room for greater understanding, no room for anything but the past.
I am not the same man I was when I was eighteen. I have lived more, experienced more, and I like to think I have gained some wisdom in the process. The same can and does happen to societies as a whole. We should welcome that wisdom, but Original Intent does not. It runs from it, and tries to hide behind the revealed wisdom of the Founding Fathers, much as Biblical literalists depend upon the revealed wisdom of Scripture. Both modes of thought are a recipe for stagnation and, eventually, repression. Whether or not their proponents admit it, societies do grow. The people of those societies will not turn their back upon the wisdom they have earned, even if their lawmakers do. At some point, there will be a conflict between the hard earned wisdom of a people, and the revealed wisdom of the past. No society remains unchanged, and Original Intent limits the ability of our society to apply those changed wisdoms to our understanding of the Constitution. I believe the word for that process is “stagnation”.
Always thought there was some merit in “original intent” to keep perspective and balance but not a good tool for slavish devotion. And it is merely a phony intellectual tool for most of its adherents. I always tell the original intenters that means the 2nd amendment only applies to muzzle loaders.
Comment 9/24/2002
As to not being the same person you were at 18, Mark Twain said the following (this is a paraphrase):
“When I was 18 I was amazed at how little my father knew and by the time I was 30 I was amazed at how much he had learned in just 12 years.” :>>>
Comment 9/24/2002
People who give no respect for original intent give no respect for those who have come and gone and have handed over a country of freedom on a silver platter to future generations. To uphold past values gives standing and does not allow change to occur with a slight blowing of the wind.
“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”
…Alexander Hamilton, 1775
God’s wisdom be with you on your task..
Comment 11/20/2003