Friday, May 07, 2010


An Original Intent To Obscure Original Meaning

Joseph Ellis, noted author of Founding Brothers and a history professor at Mount Holyoke, steps outside his areas of expertise and tries to play legal commentator in today’s Washington Post.

He succeeds only in displaying his remarkable ignorance of his chosen subject.

Entitled Immaculate misconception and the Supreme Court , the misconception is of his own making, botching as he does the theoretical underpinnings of the best minds on today’s Supreme Court.

“The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. …

“Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court -- Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito -- claim to believe in it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence.”

Yeah, you might call it that…and you shouldn’t be surprised if all four justices named then agreed with you. Professor Ellis is obviously confused as to the difference between “original intent” and “original meaning” – the latter being the term more closely aligned with the originalism we hear so much about.  Justice Scalia especially would be surprised to hear of anyone attributing the sin of “original intent” to him; his scorn for the parsing of legislative history being fairly well-known among those who pay attention to such stuff….a group which apparently does not include Professor Ellis.

Also laughable is his attempt to use Thomas Jefferson to bolster his irrelevant argument:

“If we were to put the doctrine of original intent on trial, the most eloquent witness for the prosecution would be Thomas Jefferson. Here is what he wrote to a friend in 1816:

"Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did beyond amendment. . . .”

Again, who disagrees? The Constitution clearly outlines a methodology for amendments of which Mr. Jefferson was well aware; after all he had been an important voice pushing for a Bill of Rights. But to suggest that, were he still alive, he might be leading the charge against the judicial philosophy of Justice Scalia et al reflects a willful blindness to the real life Thomas Jefferson. He was a leading figure in the fight against a National Bank precisely because it was not in accordance with the original meaning of the Constitution and his Kentucky Resolutions certainly do not reflect a cavalier attitude towards the words of the Constitution.

I’ve read Founding Brothers and was impressed with the scholarship therein. It would have been nice had Mr. Ellis applied those obvious research skills toward a better understanding of some more modern day figures before publishing a hit piece more worthy of the Huffington Post.

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