Jan Resseger writes here about the misfit between an “originalist” interpretation of the Constitution and the field of education, which has evolved very far from its condition in the 1770s. It is likely that an originalist, as Judge Amy Coney Barrett claims to be, would have nothing to say about contemporary issues in education, since there were no public schools, no Catholic schools, no organized system of education at all in the time that the Constitution was written.
Resseger writes:
For a couple of weeks now, since the publication of Derek Black’s history of the constitutional basis for American public education, this blog has been reflecting on the meaning of constitutional principles in our nation’s founding documents and the 50 state constitutions for defining the role and meaning of our nation’s system of public schools. (See here, here, and here.)
But this week, Judge Amy Coney Barrett, who defines herself as a constitutional originalist, went through hours of Senate confirmation hearings leading to a Senate vote on her confirmation in the next week or two as President Trump’s latest appointment to the U.S. Supreme Court. All week we have been considering what it means for our society today when members of the U.S. Supreme Court define themselves as originalists who are bound to interpret the constitutionality of today’s laws according to the precise wording of the U.S. Constitution of 1787.
The other day when Chicago Mayor Lori Lightfoot, trained in the law and formerly a federal prosecutor, was asked whether she is an originalist, Mayor Lightfood replied: “You ask a gay, black woman if she is an originalist? No, ma’am, I am not. The Constitution didn’t consider me a person… because I’m a woman, because I’m black, because I’m gay. I am not an originalist. I believe in the Constitution. I believe that it is a document that the founders intended to evolve and what they did was set the framework for how our country was going to be different from any other. But originalists say that, ‘Let’s go back to 1776 and whatever was there in the original language, that’s it.’ That language excluded, now, over 50 percent of the country. So, no I’m not an originalist.”
Like Mayor Lightfoot, many people today worry about originalist legal interpretation. In Linguistics 101, students learn that language changes and evolves over time as particular words become archaic, fall out of common usage, or evolve to mean something different. Dictionaries are descriptive, not prescriptive. We cannot know precisely what the founders intended, but we can be sure that the words they used in 1787 may connote something much broader or narrower today.
Schoolhouse Burning, Derek Black’s new book is, in essence, the history of how the meaning of the guarantee of public education as a right for every child has changed and become more inclusive in the over two hundred years since our nation’s founding. Some people say that because the Constitution itself does not mention public education, public education is not a fundamental right, but Black disagrees because public education is so carefully planned in the Northwest Ordinance, passed as a sort of companion document in the same year as the Constitution. As Black traces the history of our understanding of the right to public education, it’s clear that Derek Black is certainly not an originalist. His book is the story of how our history—the civil war, the development of the constitutional principles of the 50 states, Jim Crow, the Civil Rights Movement—has informed and further defined the meaning of the founding principles: “The foregoing principles—the right to an adequate and equal education, making education the state’s absolute and foremost duty, requiring states to exert the necessary effort (financial or otherwise) to provide quality educational access, placing education above normal politics, and expecting courts to serve as a check—are all in the service of something larger: the original idea that education is the foundation of our constitutional democracy. Education is the means by which citizens preserve their other rights. Education gives citizens the tools they need to hold their political leaders accountable… Democracy simply does not work well without educated citizens.” (Schoolhouse Burning, p. 224) Black reminds us, however: “The founders articulated educational goals not with any certainty that they would spring into reality simply by writing them down, but in the hope that we might one day live into them.” (Schoolhouse Burning, p 71)
“Originalist” legal interpretation doesn’t pay much heed to how we have lived into the goals and principles declared all those generations ago. How has the meaning of the constitutional protection of equal education evolved over the history of our country?
Originalists are actually an improvement over televangelists. They are only 244 years behind the times.
I thought televangelists only went back to the invention of the TV.
Jerry Falwell believed that teenagers were holding Satanic rituals in our forests at which babies were sacrificed and eaten. This kind of thinking goes back to Roman court documents, which accused, ironically, Jews and early Christians of such practices. Ofc, I was referring to their ideas, and ofc, you were joking.
For a fascinating account of the origins of medieval Christian notions about witchcraft rituals in charges made by the Romans against Jews and Early Christians, see Norman Cohn’s superb history of this, Europe’s Inner Demons.
Televangelist with no TV?
Would televangelist be?
If folks had no TV?
Or would he be Tweetangelist
With thumbping Twitter hand-ness?
Or maybe it’s
With Trumping Twitter handiness
You see, poems are not written, but discovered.
Like the truths of math, they have always been there.
And as a great mathematician once said, if I have seen farther than sum, it is by standing on the shoulders of Geometers.
Or, as John McCain once said, if I have seen farther than Russia, it is by standing on the shoulders of Sarah Palin.
If I have seen farther than frost, it is by standing on the shoulders of burns.
If I have seen farther than Fauci, it is by standing by the tweetings of Trump.
“But originalists say that, ‘Let’s go back to 1776 and whatever was there in the original language, that’s it.’ ” In this statement, Lightfoot gives them too much credit. As was pointed out in another post here, the Heller decision, of which Scalia was proud, was anything but originalist, despite what Scalia himself said.
Originalist interpretations of the constitution are pretty much like literalist interpretations of scripture: they choose the things that sound solid and support what they want to believe.
Original Intent
Original intent
Of God, at the Creation,
Was Fire and Brimstone sent
By BigBang and Inflation
Original Intent (take 3)
The Universe is fated
For randomness and death
And Old One, he has waited
So long, with baited breath
a key point: leaving out what doesn’t suit the agenda keeps the masses in line
Unfortunately, originalists like Crony Barrett go back to the Garden of Eden
The Original Originalism
Original intent
Of Adam, in the Garden
Was really Heaven sent:
“For woman, there’s no pardon”
Amy Coney Barrett tied to far-right religious cult that believes women should “submit” to husbands
https://www.salon.com/2020/09/29/amy-coney-barrett-tied-to-far-right-religious-cult-that-believes-women-should-submit-to-husbands_partner/
Original Intent
Original intent
Of God at the Creation
Was Fire and Brimstone sent
By BigBang and Inflation
My original intent was to post that after Roy’s comment above, but unfortunately, the Original Intent of the WordPress happiness engineers is to assign replies randomly.
Excellent! Thanks for sharing Joe Stoner
On Wed, Oct 21, 2020 at 9:00 AM Diane Ravitch’s blog wrote:
> dianeravitch posted: ” Jan Resseger writes here about the misfit between > an “originalist” interpretation of the Constitution and the field of > education, which has evolved very far from its condition in the 1770s. It > is likely that an originalist, as Judge Amy Coney Barrett cla” >
OK, a little thought experiment: Suppose that having reached a certain maturity, you decided to write a book of practical advice for your grandchildren about how to live their lives in a fulfilling, rewarding way. Would you expect that this advice would hold, in all its details, 250 years from now, for your distant descendants?
Of course not. You wouldn’t be that stupid. You know that the world changes and that our ways must adapt to those changes.
Well, an originalist is someone who seems to think that the founders were that stupid.
This is so crazy an idea that one wonders whether those who espouse it actually believe it or simply use it to rationalize backward views. Certainly, so-called originalists like Barrett’s mentor, Scalia, are quite willing to throw originalism out the window when it suits their purpose to do so. Political action committees and corporations in their current forms didn’t exist when the Constitution was drafted, so Scalia couldn’t justify, based on originalism or textualism, his vote on Citizens United, which allowed modern PACs and corporations to spend any amount of money, at any time, to influence an election–an exercise, the decision argued, of their “free speech” rights. At best Scalia could say, “I’m an originalist when I feel like being one.”
Or perhaps Scalia’s principle was, “I’m a Troglodyte seven days a week and an Originalist on alternate Tuesdays.”
The Origin of Feces
The Origin of Feces
Is dated to Scalia
Who saved the little pieces
From all his diarrhea
lol
You know, I actually laughed out loud at that one.
Sometimes it just works out perfectly.
with a pun on “works out”
“What’s all this I hear about endangered feces?” –Gilda Radner
UGH!
There are many definitions of intelligence. One of the best, I think, is this: the ability to conceive, plan, and execute adaptation to a changing environment.
A corollary to that: Originalism is the opposite of intelligence.
Scalia was a practicing Catholic, so here, from the Douay-Rheims Bible:
Who also hath made us fit ministers of the new testament, not in the letter, but in the spirit. For the letter killeth, but the spirit quickeneth. –2 Corinthians 3:6
Or, to modernize the language a bit: Abiding by the letter kills; abiding by the spirit leads to life or prospering or flourishing or eudaimonia.
This was Christ’s verdict on Originalism in law.
The letter kills.
The spirit thrives.
Scalia had scales
over his eyes.
That’s “Second Corinthians” to Christians and “Two Corinthians” to Trump, as in “Two Corinthians and a penguin walk into a bar.” LMAO.
A couple of high visibility men resigned in the past couple of days over incidents, The first is the Boston School Committee Chair and, the second is Penn State’s Basketball coach.The Committee Chair self described as Italian and Catholic. The incident description as reported by media, suggests he was channeling a version of the GOP politician who repeatedly mispronounced Kamala Harris’ name.
The Coach is the youngest of 12 children and is described as Catholic. Prior to Penn State, he coached at Villa Nova and Boston College. Reportedly his defense in the incident is that he meant the Biblical “yoke” but, “noose” came out instead.
The Origins of Human Intelligence
Intelligence has origin
With monkeys in the trees
Who didn’t want the floor to win
And bring them to their knees
Love it!
The Origins of Stupidity
The origin of dumbness
Is failure of the brain
A mind affecting numbness
That makes you quite insane
So, in summary: Interpret the SPIRIT OF THE LAW IN LIGHT OF CONSEQUENCES IN CURRENT CIRCUMSTANCES. Yes, I recognize that this is more difficult, but even Conservatives might learn how to do it, with some expansion of their horizons, increased empathy for those not like them, and willingness to live in the real world.
Doesn’t Article 1, Section 8 provide for public education (and universal health care for that matter): to provide for the general Welfare.
Article I
Section 8
Clause 1
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
And regarding the 2nd Amendment and militias, Article I, Section 8, Clause 16:
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
I would say that it’s pretty clear that militias are groups of people not individuals but the ammosexuals conveniently ignore that reality in the 2nd Amendment.
Scholars reading the other writings of the authors of the Constitution (almost 100 men were involved in its discussions) have come to the conclusion that the “Original Intent” was that it be a living document that evolves with the realities of society as time goes forward. Thus “Original Intent” and “Living Document” are one and the same. Those pushing “Original Intent”, such as Nino Scalia established that a corporation counts as a person and should be allowed to give as much money as it wants to any political organization. It is doubtful, in the extreme, that this is anything like what the original framers intended. Justice Brennan pointed out that the framers published no commentary as to what they “intended.” It is meant to dealt with in this naked form by future generations. The Constitution is what is on the pages for all to see. Those pushing their idea of “intent” should be made to present their Crystal Ball whereby they determined what this ‘intent’ was.
Dammit, I forgot to get Derek Black’s book. My leaning tower of books will bend a little more after I pay more tribute to Jeff Bezos.
As I purchased this book this evening, I came across a book titled Charter School City and found this comedy gold in Arne’s comment: “The schools in New Orleans have gotten better faster than perhaps any other district in the country. To see this progress, in the wake of the trauma and devastation from Hurricane Katrina, is just awe-inspiring. In this ground-breaking book, Harris provides a full and careful picture of how the community did it and what others can learn from it. New Orleans shows us what’s possible, and it gives all of us reason for hope.” Whoo, boy!
Did he know that almost half the charters in Nola were rated D or F by the state last year?
Nola F
Nola F
No laugh
A half
Were rated D or F
Diane
You are a poet and you don’t know it.
Question: Does the theory of Deconstruction apply to the Constitution? Does it argue against originalism?
Another wonderful piece by Ms. Ressenger! This phrase, in particular, is masterful: “how we have lived into the goals and principles declared all those generations ago.”
I’m so sorry. I keep wanting to put an “n” into this brilliant person’s name!!!! I had good friends, years ago, who were named Ressenger.
There are undoubtedly some folks who would like to put an “n” on my name as well
SomeDAMn Poet
You’re damned if you do, damned if you don’t! Hee hee
Oops. That’s damned if you do, dammed if you don’t.
And for those who already interpreted DAM as “damn” , its actually an acronym for Devalue Added Model.
Although I suppose it is really a distinction without a difference.
lmao
This description of an originalist reminds of those people who want to interpret the Bible literally, and hence they are convinced that the Universe is less than six thousand years old.
Sugggest this view of the meaning of originalism is inconsistent with the view expressed by Judge Barrett. Paraphrasing: We all go to the original meaning, then give that meaning greater or lesser weight. Originalists; Greater weight; Non-Originalists, Lesser weight.