“If Scalia Had His Way,” by Jeffrey Rosen (Week in Review, Jan. 9), about constitutional originalism, illuminates many of the difficulties inherent in the doctrine, but he does not mention a powerful objection to its fundamental principle.
If one had asked the founders, “Should a judge 200 years hence determine the meaning of a constitutional provision by relying upon opinions of men two centuries dead — not because those opinions are reasonable or wise, but only because they have become traditional?,” I think the founders’ reply would be obvious.
To surrender one’s independent judgment to traditional authority is to ignore the essence of the Enlightenment, which demands of us that we think for ourselves.
Douglas O’Keefe
San Francisco, Jan. 10, 2011
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To the Editor:
“Constitutional originalism is all the rage these days,” Jeffrey Rosen wrote, but the “rage” is about posture, not originalism. Self-styled originalist justices loudly champion states’ rights, but blatantly intruded into Florida’s elections in Bush v. Gore (2000).
Nowhere does the Constitution mention corporations as persons having the same rights as individuals, yet the court happily ignored this in Citizens United v. Federal Election Commission (2010).
The Constitution provides Congress — and not the president — with the right to declare war. Furthermore, by virtue of Article VI, the United Nations Charter is part of “the supreme law of the land.” It forbids intervention in the affairs of other countries. We have continually violated both without a whimper of protest from our “originalists.”
But none of this matters to rightist Supreme Court justices like Antonin Scalia, because they are ideologues committed to the primacy of wealth and power. They invoke the respectable mantle of originalism, while not really giving a hoot for the original Constitution.
Roger Carasso
Los Angeles, Jan. 9, 2011
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To the Editor:
Antonin Scalia’s originalist reading of the Constitution is based more upon historical fiction than true history; it is a subjective, not objective, interpretation. Most recently in Citizens United, Justice Scalia found a corporate right not only to become involved in the election process but also to keep the machinations secret.
At the time of the Constitution there were a few select corporations that were under the thumb of the legislatures. Now the corporations control the legislatures — and Congress — through financing of election campaigns and media ads.
Daniel G. Deneen
Bloomington, Ill., Jan. 9, 2011
The writer is a lawyer.
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To the Editor:
Justice William Brennan pointed out that trying to “find legitimacy in fidelity” to the intentions of the framers was “little more than arrogance cloaked as humility.” “It is arrogant,” Justice Brennan said, “to pretend that from our vantage we can gauge accurately the intent of the framers on application of principle to specific, contemporary questions.”
For Justice Brennan, the Constitution had no “static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
Stephen Rohde
Los Angeles, Jan. 9, 2011
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To the Editor:
Jeffrey Rosen’s observations on the ambiguities of “originalism,” coming a few days after the public reading of the Constitution in Congress, should remind us that the issue is not reading the text, which we all love, but what we read into it. That “originalism” has different meanings and conclusions highlights the universal fallacy to speak of “the Constitution.”
There is, as a practical matter, no Constitution; there are only interpretations of the Constitution. These may broadly be described as conservative (or strict) and liberal (or loose).
One can prove a particular document to adhere to one or the other interpretation, but one cannot prove either interpretation to be correct. Like vanilla and chocolate, a fondness for a conservative or a liberal reading is a matter of taste, not logic or evidence.
Manfred Weidhorn
Fair Lawn, N.J., Jan. 9, 2011
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To the Editor:
It is comforting to know that Justice Antonin Scalia has the good sense to refrain from following his originalist beliefs to their logical conclusion (“a faint-hearted originalist”) and stops short of following Justice Clarence Thomas over the cliff into an absolutist and dogmatic straitjacket.
A few days ago, the House of Representatives, spurred on by Tea Party fervor, treated us to a sanitized reading of our Constitution using a slippery argument to avoid embarrassing mentions of male voters and three-fifths of a person. They, too, were avoiding the troublesome implications of their ideology.
Steven Berkowitz
New York, Jan. 9, 2011