Who would the Founding Fathers vote for? Not who you think.
In the absence of strong political leadership these days, many activists are going back to basics. Move over Ronald Reagan, Americans are invoking Thomas Jefferson and James Madison in their discourse about the country's direction. Tea Party activists have even dusted off the wigs.
Originalism -- once a rogue splinter of constitutional interpretation -- is gaining ground. Originalism demands that we interpret the constitution in the same way its 18th century authors would have. It's a more provocative position than you think. Is whipping cruel and unusual punishment as prohibited by the 8th Amendment? Today that's an easy one, but not so for the Colonial American. So does Justice Clarence Thomas -- a self-styled originalist -- share the view that forty lashes would be constitutional?
But here's the ironic part. Many conservatives today -- even some so-called originalists -- are not as true to a constitutional drafter's intent as they think. Let me go a blasphemous step further. A liberal, in some cases, might be truer to the 18th and 19th century constitutional ethos than a Tea Partier in full regalia. Let me give you two examples.
As odd as it sounds, it's the whole debt limit thing that got me thinking. The central pickle is that in 1917, Congress said yeah, sure, the U.S. can borrow. It can borrow a lot. But it can't ever, EVER borrow as much as X. And every once in a while, the U.S. needs to borrow more than X. So Congress raises the debt ceiling. Unfortunately, it's happened dozens of times since the '60s. And in budgeting for 2012, Uncle Sam needed to borrow more than the debt ceiling. No surprise there. But this time, the Tea Partying House said, Not so fast, prez. You better cut your spending.
And so this game of chicken began. But amid all the financial pyrotechnics there's this itsy-bitsy constitutional clause, buried in the 14th Amendment of the U.S. Constitution. It says, "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." They put this in so all the Civil War veterans and bondholders wouldn't get shafted. Who would shaft them? That's right, all the Southern representatives stepping back into the House of Representatives from the states that just tried to secede.
But in a larger sense, the amendment said that fooling with debt couldn't be a political weapon. You can't hold the budget hostage. Uncle Sam must pay his bills -- no matter what. And yet, some originalists were pushing Representative John Boehner to let the U.S. default. That's not just ignoring the intent of the drafters of a Constitutional amendment. That's a slap in the face.
But that's not nearly as interesting as the ol' Privileges and Immunities Clause in Section 1 of the 14th Amendment. That was drafted to protect newly freed slaves. It says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
So what exactly do these privileges consist of? John Thayer, an 1866 senator from Nebraska and one of the framers of the amendment, meant for it to include "civil rights and immunities," such as sitting on a jury, voting, even running for office. And, of course, the right of oyster fishing. But many originalists spent the next 100 years gutting the thing through judicial interpretation. Especially to make sure blacks and women couldn't vote.
So, who is closer to the original spirit of the Constitution? Those who want America to pay its obligations while expanding social welfare and rights of political participation, or those who fiercely guard our treasury using imitation muskets bought at the Colonial Williamsburg giftshop? You tell me. Just don't let anyone pull a wool wig over your eyes.
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