The originalism vs living document argument amongst the judicial set is a very long running argument, with many facets I don’t understand. But this summation from retiring Florida Supreme Court Justice James E.C. Perry in the Miami Herald seems succinct in his rejection of the originalist position:
Flaws of ‘originalist’ doctrine
Racist thinking has also penetrated some judicial thought, namely the “originalist” judicial philosophy of many conservatives, embraced by the late U.S. Supreme Court Justice Antonin Scalia, Perry said. That doctrine adheres to the notion that interpretation of law should be based on the original meaning of the text of the statute or the Constitution at the time it was enacted.
The doctrine was promoted by conservatives as a de facto litmus test for Gov. Rick Scott’s replacement for Perry on the court. Scott’s selection, C. Alan Lawson, described his approach as “very originalist.”
But to Perry, a descendant of slaves, the notion that jurists should interpret the Constitution through the lens of the original intent of the founding document is incongruous.
“They say that the Constitution is stagnant and I don’t think it is. I think it is living — like the Bible is living,” he said. “Should I want to be an originalist and go back to the original thinking of the Founders? No. Never. I’m not enamored by places called plantations. That doesn’t give me warm and fuzzies.”
Perry considers the Founders “flawed people” who were wise but not omniscient.
“They were slave owners,” he said. “These people didn’t have divine intervention. They had some great ideals, but it didn’t include poor whites. It didn’t include women. We weren’t even human beings, we were chattel. It didn’t include the Native Americans, and it didn’t include merchants. It included land owners, or planters, they called them.”
He noted that slaves were not allowed to marry, and black men had to submit to their owners at all costs: “They’d come in and want to have favors with your wife — whatever you call her — you would have to stand outside the door. Think about it, just in terms of human sense. How debilitating, how dehumanizing can you get?”
I wonder how he feels about stare decisis. While I appreciate that today bears little resemblance to 1776, I think what drives originalists a little nuts is that there’s no structure to constrain the power of judges.
