Wednesday, February 2, 2011

What a racket

You already know what a geek I am, so I will go right ahead and confess to having been fascinated, long term, with Constitutional law. Since high school. When I somehow persuaded my parents to ship me off to a prep school experience for a summer (see my previous posts on The Official Preppy Handbook), and I took a course on law and society. We read the Greatest Hits, like Marbury v. Madison, the infamous Plessy v. Ferguson ("separate but equal"), and Brown v. Board of Education of Topeka.

We even read Roe v. Wade, which today might seem rather remarkable. Kudos to the instructors, whose names I no longer remember, for trusting me and a group of other high school sophomores not only to do the reading, but to be able to think and talk about it intelligently, reasonably, and respectfully.

We need more faith in each other, and schooling, like this.

However. I digress.

The racket to which I refer is "originalism." Here is what I learned from historian Jill Lepore in an article (in the January 17th issue of The New Yorker) that is well worth a read as it puts into perspective the current craze for "restoring" the Constitution to the "original intentions" of the Founding Fathers:

Consider the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Historical evidence can be marshalled to support different interpretations of these words, and it certainly has been. But the Yale law professor Reva Siegel has argued that, for much of the twentieth century, legal scholars, judges, and politicians, both conservative and liberal, commonly understood the Second Amendment as protecting the right of citizens to form militias.... Beginning in the early nineteen-seventies, lawyers for the National Rifle Association, concerned about gun-control laws passed in the wake of the assassinations of Martin Luther King, Jr., and Robert F. Kennedy, argued that the Second Amendment protects the rights of individuals to bear arms."

In other words, Lepore writes, originalism is as much "a serious and influential mode of constitutional interpretation" as it is "a political product manufactured by the New Right and marketed to the public by talk radio, cable television, and the Internet, where it enjoys a competitive advantage over other varieties of constitutional interpretation, partly because it's the easiest."

What strikes me also are the parallels that could be drawn between Constitutional originalism and religious fundamentalisms, be they Christian and Muslim or another doctrine or dogma: The words of the Founding Fathers and the Word of God?

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