Texas's Abortion Law and the Original Meaning of the Constitution

My brother and Me

With the Deviousness of the Texas's Abortion Law the Texas GOP theocrats have effectively found a way to gut Roe v. Wade, and it's disgustingly appalling to me.

I was talking with my older brother this past weekend who said Trump's nominees to the Supreme Court were the best actions of this twice impeached one term past President. He said the nine Justices ought to make their decisions based on the original intent of the Constitution. This should be the main qualification for Supreme Court Justices, since they are not part of the legislative branch of the government. 

We disagreed. Let me explain why originalism is a misleading misinformed bogeyman of conservatives.

Point 1 on the Constitution: Whose Intent?

When it comes to the so-called intent of the Constitution the first question to be asked is whose original intent matters? To the question of who wrote the Constitution, it was James Madison, who is known to be the chief architect of the finished product. But that oversimplifies things. For the Constitution was the result of nearly four months of arduous deliberation and compromise among dozens of delegates from twelve states at the convention, and accepted despite bitter 1787–88 debates over its ratification. Furthermore, each person and each state who signed on had a particular intent in mind, which may or may be agreed upon by others. The same things can be said about each of the amended Bill or Rights.

Point 2 on the Constitution: It's nothing but textual interpretation "all the way down".

Since there is no single person or state in the union who "owns" the authoritative original meaning of Constitution there's nothing left to do but interpret the text of the Constitution as best as can be done, given our current situations through the years. And the majority opinions (5-4 votes or more) of the SCOTUS at any given time are the final authority on that text. 

Sure, the The Federalist is a commentary on the meaning of the Constitution, as written by Alexander Hamilton, John Jay, and James Madison. So the Federalist should help the nine Justices in their decisions. But nothing said in it is, in itself, authoritative. Even the Federalist itself is subject to varying interpretations!

Point 3 on the Constitution: The Supreme Court must decide on new cases. 

Every time the Supreme Court takes up a case it demands some new understanding of the Constitution, or an application of the Constitution that hasn't been made before.

In other words, as new cases arise they have to find something in the Constitution to settle an issue, or else they would have to say the Constitution doesn't speak to that issue. But the highest court in the land must say something to settle these cases. They cannot wait for a Constitutional amendment, nor should we constantly be forced over and over again, several times a year, to keep amending the Constitution.

This is especially understood when it comes the the flurry of cases having to do with so many issues revolving around changing social ethics, science and technology, nuclear and chemical warfare, climate change, medical procedures, narcotics, cyber crimes, internet privacy/cookies/data, social media, surveillance rights, mask wearing and vaccines.

No matter what anyone says the Supreme Court has had to deal with many issues that the founding fathers living the 1700's couldn't have anticipated. So any so-called original intent (singular!) of the framers (plural!) of the Constitution--even if we could know it, which we don't--doesn't help that Court of nine Justices.

The "original intent" demand ends up being little more than a rallying call for antiquated fundamentalist values. That is, WASP values, old white wealthy straight guy values, puritan/protestant values, chauvinistic values, pre-scientific values, racist values.

In sum, I think the Constitution is a "living document" because it becomes a quagmire to determine which author's intent the Supreme court must consider when interpreting it; the original author(s), or the various intents of those who signed it (or who voted on the various amendments)? It must be used to help solve the current issues of our day since we need a third branch of the government that can solve them in a timely fashion. How these problems are solved depends on interpreting the text of the Constitution according to the values that provide for a good healthy society with rights for all, certainly not according the white supremist valves or the values of the billionaire class, or the values of Christian nationalists and theocrats like Texas.  

4. On Biblical Interpretation and Authorial Intent.

I remember a doctoral class on Hermeneutic Theory I had at Marquette University where we read and discussed Hans-Georg Gadamer's book, Truth and Method. At the time as an evangelical I had accepted the arguments for authorial intent found in E.D. Hirsch's book, Validity in Interpretation. What I came to think, and still do, is that authorial intent is not important in interpreting the Bible or the Constitution. Only the text itself is important. Authorial intent is only important when the author is still alive to comment further on how someone interprets what was said. And even then, authorial intent is not the only thing important since one could still argue that one's original words lead readers to a different interpretation. One could still debate with the author, saying, "No, you said x, don't back out of what you said."

Let's put it this way in practical terms. There are times when friends will say something badly. So there are times when I will respond by telling them what they really intended to say. Upon hearing my interpretation they might respond by saying, "yes, that's what I meant to say." So there are times when the listener (or reader) can understand what someone meant to say better than what was actually said. The difference is that after authors die we can't ask them what they meant to say.

The most important factor for interpreting any document is the text itself. While the author in his cultural situation is also important for understanding a text like the Bible, the intent of the authors is not decisive since we have no access to it. 

I would say it this way: Biblical scholars cannot ethically reinterpret a text when the text does not allow for that reinterpretation. And that should be all one needs to say about it. 

This goes equally for the SCOTUS and the Constitution. The text of the Constitution constrains what interpretations the SCOTUS can allow. 


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