What everyone else said; too many to quote individually. Mostly, they had a great chance to fuck it up and instead they hit it out of the park. Three branches of government? Limits to executive power? Who’da thunk it? And as long as people are including the Bill of Rights, whoa – no unreasonable searches of my home? and I can say anything I want? and I can worship a moldy cupcake if I want to? This system has proven remarkably resilient over the course of our very tumultuous (though brief) history, and its framers deserve the reverence with which they’re treated.
@Revenant Threshold
I, like you am from the UK.
Before I studied politics I held fairly radical opinions, but found them rapidly eroded when I compared gradualism with ‘revolution’.
If things have been around a long time, then people know how they work, cause and effect becomes predictable.
In my analysis, the ‘rules’ themselves are not very important, what is vital is that they are clearly understood and enforced.
The easiest and most reliable way of getting such a setup is to build on history
- just as Christianity bolts on the Old Testament, we need to hark back to precedents
Put crudely if everyone is singing from the same hymn book, then people have a chance of knowing which page to turn to.
The US constitution might be a bit odd, but it is the best that they have got.
Part of the “reverence” of the founding fathers in legal circles has to do with the “original intent” movement in legal thought.
Starting approximately with Franklin Roosevelt’s depression-era New Deal and continuing through much of the remainder of the 20th Century, there has been a changed legal interpretation of Constitutional rights, resulting in an increase in the power and reach of the federal government and a broader shift toward Constitutional protection of individual civil rights. One example of this is the “right to privacy”, a right that is not found in the language of the Constitution, which was found in Griswold v. Connectitut to be the basis to invalidate a prohibition against birth control and later applied in Roe v. Wade to form the basis for an Constitutional right to abortion.
Some legal legal scholars and judges have found some elements of this trend regrettable, and have concluded that it is appropriate to look to their interpretation of what the “original intent” of the founders was in enacting the Constitution. They feel that the creeping changes in 20th Century Constitutional law have diverged from the “original intent”, and that Constitutional issues must be looked at afresh based on the language of the Constitution and scholarship on what the 18th Century founders believed when they wrote it.
This originalism is a prime feature of the jurispridence of Justice Antonin Scalia of the Supreme Court and many other politically conservative judges and scholars. As such, reverence for the founding fathers is politically tied to the conservative movement and the desire to scale back or slow the development of such 20th Century “liberal” political trends as federal government regulation of business, strong criminal defense rights, broadly enforcable civil rights for disadvantaged groups and acceptance of abortion and other elements of personal sexual morality.
I tend to be pretty cynical and not all that jingoisticaly patriotic, but lately I have seen the real wisdom of things like separation of powers. The current administration has begun to gather more and more unchecked power and you can see that it quickly leads to fairly egregious abuuses. Congress has thus far failed to exercise its power of oversight, but I think that will change soon.
The 2000 election is another example. Whether you agree to the SC’s decision or not, it held and a constitutional crisis was avoided.
Reverence for the founders existed long before Antonin Scalia was born or before medically induced abortion of pregnancy. Both sides of the aisle have looked back to the founders for support, and have interpreted the founders actions and words to their own advantage. So to characterize reverance for the FF with conservatives or anti-abortion movements is really not correct in my opinion.
Also, here’s one passage from Griswold v. Connecticut:
“Government was meant to have the power…” although not explicitly stated it is quite obvious that even the liberal Warren court, favorable to contraceptives and etc, was talking about what was “meant” to be. That implies to me that they’re talking about the intentions of those who created the Constitution, and I think that is a pretty clear implication.
The intentions of those who created the Constitution is important to jurists on both sides of the aisle, and always has been from what I’ve seen.
While agree with your previous paragraph, the 2000 decision was more an example of corrupt partisan hackery than anything else.
I think what Billdo was getting at – and I’m sure he’ll correct me if I’m wrong – is that politically conservative jurors, legal scholars and lawyers have been using the doctrine of “original intent” as a stalking horse to disguise their purely partisan intents. They dislike government regulation of business, privacy rights for women, etc., but instead of openly acknowedging their political views, they claim that they’re just interpreting the Constitution in a methodical way. The fact that the method by which they’ve chosen to interpret just happens to favor their political viewpoints in almost every instance is, we are told, just a coincidence.
So that’s how you know an originalist is lying. His lips are moving.
“Well, we can’t protest on Tuesday because ‘America’s Funniest Home Videos’ is on.”
“No, you’ve got that word misspelled on your protest sign. It’s C-O-N-S-T-U-T-O-O-S-H-U-N-N. That’s right, only 3 N’s.”
Certainly, there are examples of this sort of intellectually dishonesty (e.g. Judge Bork takes the positions you list in the name of originalism, and yet rejects the notion that the Second Amendment guarantees an individual RKBA even though that position is utterly incompatible with originalism).
However, it does not follow that all originalism is intellectually dishonest.
That’s right. That’s why originalists like Scalia said that a flag burning statute withstood Constitutional scrutiny. And why Clarence Thomas (really more a natural law guy) voted to strike down laws banning virtual child pornography. Because they secretly like that stuff.
Actually, the idea behind looking at the Framers’ intent is that we all agreed on the framework for our government when we passed the Constitution. We’re essentially a nation governed by the people through democratic processes. The Constition derives its authority from the fact that we, as a nation, agreed on the rules by which we’d be governed. The laws are passed by the democratically elected representatives. And if the people want to change their laws, they have direct influence over their democratically elected representatives in Congress.
On the other hand, (federal) judges are not democratically elected, and are appointed for life. So they’re protected from the democratic influences of society. If they make law, then they’re not answerable to the people. So when judges make laws, those laws are decidedly un-democratic, especially since the “law” created by judges frequently can’t be overturned except by amending the Constitution, which requires a super-majority in the legislature.
Thus, judges potentially have a huge amount of power. That’s why their role is supposed to be circumscribed. They’re supposed to merely interpret the laws put in place by the democratic processes. They’re not supposed to inject their own political opinions into their decisions. They’re supposed to look at the laws passed democratically, and try to put them into action according to what they believe the democratic bodies meant when the laws were passed. They’re not making law, they’re just interpreting it. So if a judge is interpreting a statute, and he’s not sure what the legislature meant, he’s not supposed to just guess, and he’s not supposed to inject what he thinks would be best. Rather, he’s supposed to look at other sources – like legislative histories and committee meetings – to determine what the democratically elected representatives meant when they passed the law.
Our supreme laws are found in our Constitution. And the Constitution was created and passed by the guys we call the “Founding Fathers.” So in interpreting the Constitution, originalists are trying to figure out what the democratic bodies meant when they said stuff in the Constitution. So it’s not so much reverence for the great guys that we call the Founding Fathers, as it is deference to the democratic processes.
Ack! Scalia voted to strike down the statute banning flag burning.
Sorry.
By the way, here’s Scalia in Romer v. Evans describing his view of the role of judges in the democratic process:
“Reverence” for the founders and originalism are two completely different things. Originalism simply tries to construe law (both statutory and constitutional) as that law was intended by its authors. But it makes no difference if the author lived in 1776 or 2006. Originallsim is not averse to change, it simply defers to the people themselves to make that change either directly or thru their elected officials.
To clarify my comments, I think there are multiple areas of reverence for the Founding Fathers.
First, there is a general reverance for the individuals who through personal intgerity, wisdom, risk and toil fought for independence and established this country with its then-unique form of government. They are quite properly (along with Lincoln, King and a few others) our national heros. Most of the posts prior to my first post dealt with this general reverence for the accomplishments of the Founding Fathers in negotiating the Constitution and setting up our federal government.
Second, there is reverence for the Founding Fathers in light of the debates over current Constitutional topics, which is what I see the OP as asking about. Much of the time when the Founding Fathers are brought up in a political or legal debate, they are raised to support an interpretation of what their “original intent” would be on a Constitutional question. It isn’t just that the Founding Fathers were wise leaders whose views are worth considering, it is that the intent of the Founding Fathers (as we can pick out from the 21st Century from their often sharply different views of the political issues of the day) is more relevant and useful in determining current Constitutional issues than later scholarship or Consititutional developments.
Indeed I will correct you as that was not quite what I was getting at. I am sure that most honest conservative jurists and scholars (and I would absolutely count Justice Scalia among them) genuinely believe that they can interpret the Constitution in light of the Founders’ “original intent” and that they come to their conclusions based on a good faith attempt to find that original intent. I don’t think that they are using original intent as a political stalking horse, except to the extent the 18th Century atmosphere of little governmental economic regulation, limited personal civil rights and more repressive personal morality is consistent with their personal political views.
My more significant problem with originalism is with my belief that it is very nearly impossible to determine what the Founders’ original intent was because so much of the Constitution was negotiated as a compromise among widely divergent views, because the fragementary writings of the Founders’ from the time can be used to prove nearly everything and that exclusively considering the 18th Century perspective (or more accurately, the 21st Century prespective on what the 18th Century prerspective was) on a document that has been interpreted, reviewed and re-examined for the intervening two centuries is unrealistic.
That’s a good point, but originalists like Scalia, who take a textualist approach, don’t try to devine what the Founder’s intent was except as it can be understood from the text of the constitution itself. We do, after all, have the abitlity to change that text if we don’t like what was written, or if we find that there was something missing that should have been written down.
An interesting thread!
I’ve often wondered why the Founding Fathers are held in such esteem in the US- Your average Australian couldn’t name the country’s first Prime Minister, much less any of the people responsible for getting the Commonwealth Of Australia Constitution Act passed in 1900. We seem to be doing alright for ourselves, although I sometimes lament the lack of a “Right to own firearms” clause…
I have to confess I do wonder why the views of people who lived 200 years ago should have extra special relevance over the people who are alive today.
Sure, I understand that you don’t want your Constitution getting amended so often it looks like a Wikipedia article (“Amendment CXLII: Every person currently residing in a Trailer Park or Temporary Accommodation shall have the right to appear on “The Jerry Springer Show” at least once in a given four year period”), but making it so hard to amend the Constitution to the point where it’s just not worth bothering (the problem we have in Australia- the last time it was amended was in 1977, on a matter of no real consequence to most people) doesn’t strike me as particularly right, either.
One can’t help but wonder if the circumstances surrounding the birth of the US as a Nation might have something to do with it?
Well, I think they’re using it as a stalking horse. It’s politically hazardous to say, “I’m a reactionary troll and I want to force women to have babies against their will, keep minorities down where they belong, dump as many civil rights as I possibly can and generally be a fucking roadblock in the path of human progress!” It’s much safer to say, “Look, I’m trying to be reasonable here but I believe my role can only be to interpret the Constitution and the law as written, and for the life of me – try as I might! – I just can’t find any basis for a woman’s right to privacy anywhere in the Constitution or for court-mandated solutions to gross inequalities in our society, however they may rankle at my heart!” (Sprinkle liberally with crocodile tears, heavy sighs, etc.) “Perhaps you gentlemen would care to amend the Constitution in some way?” (Evil grin. More about that later.)
It is simply too neat a coincidence that the Constitution and the intent of the framers dovetails so neatly with the political leanings of conservative legal types. They sound like Mafia goons protesting that they keep guns out of interest in target shooting. It’s that fucking obvious, from where I’m standing.
If you believe that the Supreme’s new conservative majority isn’t planning to impose its resolutions on all Americans, I have a bridge in Brooklyn I’m willing to sell you at a really great price!
C’mon, the odd outlier of a judicial perspective proves nothing. To return to my Mafia analogy, it’s as if you’re saying that because Al Capone gave money to destitute widows, he can’t possibly be the sort of person who creates widows. I’m very glad that Scalia and Thomas respect the First Amendment, but this does not constitute absolute proof that their other decisions are objective readings of the Constitution and the law as written.
It’s just as hard, if not harder, to amend the US Constitution. You have to get a supermajority in both houses of Congress to get an Amendment started, then you have to get 3/4 of the US states to ratify it, which is incredibly stinking hard. And while I agree that it should be hard to amend the Constitution because who wants to get stuck with a Constitution that says anybody named Bush an do anything period? Anyway, the point is, when originalists or textualists suggest changing the Constitution, it’s really just a way of saying “Fuck you if you don’t like it,” with that evil grin I alluded to earlier.
I agree, it was a travesty on so many fronts. But what was amazing is that Gore accepted the decisision and a constitutional crisis was avoided.