The Originists

Originist appears to be the in vogue term for Supreme Court justices who believe the Constitution should be interpreted according to the original intent of the members of the Constitutional Convention that created the document. Just how the intentions of a group of men in a meeting kept secret from the public, relying on the notes of members, well over two hundred years ago, using terminology no longer in use, with a vastly different experiential background is to be ascertained is a matter that has been given heightened concern by the Republican appointees to the current Court who have now confirmed that corporations are persons and can spend their vast wealth to support candidates of their choosing.

However, my concern is not to dwell on the dispute between Originists and what are now being called Living Constitutionalists, who argue that the Constitution was created to be modified as time and conditions change. Rather it is to note that the Original Intent interpretation is always preferred by conservatives and to explore one of the reasons I think this is so.

Interpreting the Constitution as closely as possible to the intent of men in circumstances substantially different from our own generates an increasing gap between the Constitution we live under and the circumstances we live in. In a large, technology-driven, multiethnic, society such as ours and in a world of transnational mega-corporations, rapidly moving information, not to mention movement of people and cultures, the Constitution is at risk of becoming an ancient artifact, venerated but of little use in dealing with the real world in the interests of "we the people." What, in other words, does free speech for a Rupert Murdoch mean other than the ability to drown out other speech with his Hannitys, O'Reillys and Becks. What does our right to vote mean when the Constitution is subverted by supporting the powerful corporations rather than protecting the electoral environment of the people. The veneration of the past that is a consequence of the Originist doctrine makes the Constitution almost a sacred document as incapable of meaningful change as was the Catholic Church when faced with the doctrine-challenging evidence of science and not inconceivably, with the same results.

Let us focus a little more on the corporation as a case in point. The corporation began as a device by which investors could avoid the full impact of corporate failure. Only the money invested in the corporation would be lost, not the rest of the investor's funds. While this diminution of personal risk freed up the flow of money, it also created a different class of people. An individual, even a partnership risked their total resources in case of failure. This form of business can be expected to breed more caution than the corporate enterprise, e.g. Enron. Initially the corporation also had the legal advantage of having a monopoly, as in the case of the East India Company, generally regarded as the first corporation. It was granted a charter by the English crown in return for a share of the profits. It was this monopolistic form of the corporation that Thomas Jefferson urged killing at its birth.

One question I ask is who benefits by the increasing gap between the Constitution and the circumstances it is used to govern. I think it is the corporations. As the gap increases there is an increasing amount of economic activity that is only marginally controlled at best simply because the Constitution makes no mention of it, at least as interpreted by the Originists. This lack of control means wealth and power gradually shift to the corporations, which become major power centers seeking to either wrest control by the state for their own purposes or to control the state by economic subversion of its electoral, legislative and administrative processes. This has become increasingly the case as corporations, unlike nations, have become global in their structure and access to resources.

The corporate power that has built upon this gap is sufficient not only to challenge the power of government, it is more flexible and devious in controlling the populace than the more rule-bound government and can infiltrate government via many channels, not the least of which are our representatives. In brief the Constitution needs either a major overhaul or replacement if it is to be of continuing use to our citizens. In my judgment the United Nations' Universal Declaration of Human Rights is not a bad place to begin. For example, article 24 states " Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality." Wouldn't that be a switch?

Bob Newhard