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Published on Saturday, July 9, 2022

’Originalism’ gives too much credit to ancients

Sunday July 3, 2022


One of my former computers had an operating system that allowed me to recover my settings and data if I made a catastrophic mistake. I could “restore” the system to a date before the mistake.

            Recent news suggests that Donald Trump, the Republican Party, and the U.S. Supreme Court run on a similar system. They want to restore America to a previous time.

            Donald Trump’s preferred “restore” date is fairly evident. His “Make America Great Again” campaign wanted to go back to the 1950s, when America was the world’s uncontested and most prosperous superpower.

            He hasn’t rebooted his mind since.

            The Republican Party, equally clearly, wants to reset America to before the Civil War. When white men still exercised authority over women and other lesser beings.

            You might think that the Supreme Court wanted to restore the nation to 1973, before the landmark Roe v. Wade decision gave American women the legal right to have an abortion.

            Not so. It goes further than that, says Morgan Marietta, a political scientist at the University of Massachusetts, and editor of the annual SCOTUS series published by Palgrave Macmillan. He argues that the six conservative justices on the Supreme Court have their operating systems locked on 1787, when the U.S. Constitution was adopted.


A different way of reading

            The ruling, says Marietta, signals “a massive change in how we read the Constitution, from a ‘living’ reading to an ‘original’ reading.”

            During the last century, Marietta explains, progressive judges treated the Constitution as a “living” document. That is, “the meaning of the document’s language changes as the beliefs and values of Americans change.”

            The Constitution must be interpreted in terms of current knowledge, actions, and practices.

            It must evolve with the nation.

            So, as attitudes change about women’s rights, about same-sex relationships, about medical science and environmental damage, the meaning of the Constitution has to be constantly re-evaluated.

            By contrast, he argues, the justices who overturned Roe v. Wade believe in “originalism.” That is, “the Constitution is static until officially altered by amendment. It does not evolve on its own without public approval. The role of the justices is [only] to determine the original public meaning of the text.”

            Which makes it a dead document. Not living.


Mummified documents

            “Originalism” refuses to consider what the original writers of the Constitution would have said, if they had access to today’s knowledge. Their words are frozen. Mummified.

            I happened to mention Marietta’s distinction between a living and a dead document to a friend.

            “But isn’t that also what we do with the church?” she replied.

            I hadn’t extended the circle that wide. She’s right. It’s the great division among churches. And maybe among other institutions as well.

            Religions also have their foundational texts. The Bible for Christianity. The Qur’an for Islam. The Vedas for Hinduism.

            Some religions treat those as “living” documents, whose meaning and significance evolves as the world changes. Others treat those same documents as fixed, inflexible, preserved in amber for all time.

            A clergy friend once jested that you could tell when a church got locked into its operating system by the garb that a priest or pastor wears while presiding at worship.

            The same might be true for the language used to express a church’s primary doctrines and beliefs. Islam relies on the original Arabic text; Anglican prayer books still use King James English.

            The same could possibly be argued for other institutions. In World War I, for example, British troops bogged down in Ypres and the Somme because their generals couldn’t reboot their tactics. Canadian forces succeeded, because they were not hamstrung by outdated operating systems.


The freedom to learn

            “Originalism,” it seems to me, denies the original writers of a document the right to have intelligence, to learn, to adapt to new circumstances. If they were writing today, would they still hold exactly the same views? I doubt it.

            The drafters of the original U.S. Constitution were intelligent men. They tried to apply the best wisdom of their time.

            They could not have imagined the developments since then in medical science, human relationships, electronic communication, space exploration, environmental crises, and psychology. Or the AR-15.

            “Originalism” is, at heart, a belief , not a reasoned policy. It’s a conviction that certain people long ago fully grasped of all the truth that anyone would ever need, for anything.

            And it is wrong.

            Neither our laws nor our social norms today should be held hostage by yesterday’s failures to foresee the future.


Copyright © 2022 by Jim Taylor. Non-profit use in congregations and study groups encouraged; links from other blogs welcomed; all other rights reserved.

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Your turn


Lots of mail about last week’s column, on trespassing on what had been indigenous land.


Lorna Gaidica called that column, ”A great synopsis/perspective/column/essay/message in a nut shell. ASKING for forgiveness seems to call for a corresponding action. What does that action look like? Then I wonder about GRANTING forgiveness. Is it possible?  Impossible?”


Dear friend Carol Jeffs told me, “I think it’s the best you have ever written! Many thanks and a great big hug.” 


Steve Roney wouldn’t agree with Carol: “You misunderstand the concept of terra nullius. It does not imply that a land has no inhabitants, or, of course, that the inhabitants are not human. It means a land with no government—“with no master.” When such a situation is encountered, a state of anarchy or gang rule, it is a moral and humanitarian duty to impose law and order.

            “The claim that Pope Urban II issued a Bull called, or about, ‘Terra Nullius’ is a myth. The idea that British or French control of Canada was based on a ‘Doctrine of Discovery’ is a myth. Pope Alexander’s rulings dividing the globe between Spain and Portugal were simply to preserve peace between two European powers in danger of conflict. It took no account of other European nations, let alone indigenous governments in the Americas.”


Tom Watson: A friend who grew up in Jamaica is a descendant of the Arawaks -- an indigenous tribe in Jamaica. When she was young, she discovered that she didn't ‘exist’ because where she lived had been claimed by conquerors who came there, and people such as her were at best sub-human. The Papal Bull ‘Inter Caetera’ issued by Pope Alexander VI in 1493 gave exclusive rights over lands and peoples to the conquerors. Sovereignty claimed by England and France did the same thing in Canada. We have a lot of ‘forgive us for trespassing’ to do.”


Ted Spencer asked, “What has changed in the past thousand years? Not much. Women are more or less invisible in the third world (in which bucket the USA fits nicely). Opportunists have cluttered the skies with space junk. Garbage is dropped on the moon, Mars, Jupiter, Venus, in the ditch in front of our farm... 

            “The mindset remains. Those we can’t, or won’t, see (often because they are obscured behind a political obstacle of one sort or another), simply aren’t in the equation. A too-big garden rife with weeds and little old me with a hoe seems like the only sensible solution.”

            Ted added, “Like you, I learned the Mearns poem several centuries ago, and had forgotten it. Books could be written on the psychological tentacles spreading therefrom. Schrödinger’s cat and the daily news make as much sense.”


Sandy (no last name in his/her email): I do not care if the First Nations also came from somewhere else...they were here in Canada thousands of years before the rest of us!  We did just move in and take over! 


Nenke Jongkind reminded me that indigenous peoples are not limited to North America: “Many, many years ago, Rabbi Dov Marmur introduced me to some wonderful family sagas taking place in Israel/Palestine. At that time I remember thinking that it too was ‘no one’s land.’ If it had been inhabited, who would have given them the land? I didn’t get it. Nor did I get how mean we can be! I’m getting so angry as I write this! That any sovereign state can determine who can go where? It is as though we have a screw missing in our makeup.”


Mirza Yawar Baig introduced me to “Seneca’s cliff” – the theory that collapse happens much more quickly than build-up: “We are at the top of Seneca's cliff and on the way down. You can guess the rest. We have been raised for too long on concepts of conquering, exploiting and using the earth to  our advantage without giving anything back. 

            “Yes, we need forgiveness – or more correctly, white people need forgiveness. But simply saying, ‘I am sorry’, is not enough.”


Vera Gottlieb: “Now residing in Switzerland I have started seeing things from a different perspective than when I was living in North America.

I am ‘white’ (as is all my family) and yet I can’t help but see the white race as culpable of too many ills (past and present) affecting the lives of too many other racial groups on this planet -- the European ‘culture’ destroying others.

            “I fail to understand whence the white race gets this idea of superiority, the idea it has the right to impose its will, the idea it has the right to wage war against all who dare see things in a different light, the idea that we have the right to exploit all other races for our benefit. We are as inhumane as we accuse others of being.

            Perhaps thanks to the advent of Internet communications the white domination is seriously being questioned and countered. In short…the shit is starting to hit the fan.”


I’ll give Anne McRae the last word: “If we forgave them and they forgave us and we all loved our neighbour, it would be a wonderful country, Let us do it !”






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To use the links in this section, you’ll have to insert the necessary symbols. (This is to circumvent filters that think some of these links are spam.)

            Wayne Irwin's “Churchweb Canada,” is an inexpensive service for any congregation wanting to develop a web presence, with free consultation. http://wwwDOTchurchwebcanadaDOTca. He set up my webpage, and he doesn’t charge enough.

            I recommend Isabel Gibson’s thoughtful and well-written blog, wwwDOTtraditionaliconoclastDOTcom. She also runs beautiful pictures. Her Thanksgiving presentation on the old hymn, For the Beauty of the Earth, Is, well, beautiful -- https://www.traditionaliconoclast.com/2019/10/13/for/

            Tom Watson writes a weekly blog called “The View from Grandpa Tom’s Balcony” -- ruminations on various subjects, and feedback from Tom’s readers. Write him at tomwatsoATgmailDOTcom (NB that’s “watso” not “watson”)



            The late Alva Wood’s collection of satiric and sometimes wildly funny columns about a mythical village’s misadventures now have an archive (don’t ask how this happened) on my website: http://quixotic.ca/Alva-Wood-Archive. Feel free to browse all 550 columns


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