This week Washington was kept busy not only by Monday’s House Intelligence Committee public sitting with FBI Director James Comey but also by the confirmation hearings for President #Donald Trump’s nominee for the Supreme Court, Judge #Neil Gorsuch. This sitting has once more highlighted the legal theory supported by the man that Gorsuch will probably replace.
Constitution
As we all know the American Constitution originated in the 18th century during the struggles of the 13 colonies for independence from the British Crown. The document was born in a world radically different from that we now live in.
Since then the world has changed radically, yet there are those who want to interpret the Constitution in matters that its drafters could not have imagined.
Justice Antonin Scalia whose death left the vacancy that Gorsuch will fill was an “Originalist” and was supported in this by another Justice, Clarence Thomas. They believe that the Constitution should be interpreted in the manner that the Founding Fathers intended that for it. As has been revealed during the hearings Judge Gorsuch too is an Originalist.
The Supreme Court of 2017 and the future face issues that could not have been foreseen by the men who wrote the rulebook on which American Democracy is based.
Changed world
The world of the 18th century did not have artificial birth control methods, the medical technology of the time did not allow people’s lives to be maintained well beyond the limits of the body and particularly the mind and therefore assisted suicide and euthanasia were not matters of the high levels of debate we see not only in the United States but in many countries.
The issue of equal rights for the gay, lesbian and transsexual communities would not even have been a figment of the imagination of the men who wrote the Constitution.
In addition, the developments in other forms of technology such as the internet, modern communications, the high polluting level technologies that are the subject of the climate change debate and the horrific threats of nuclear warfare and the consequences of nuclear technology would have been unimaginable more than 240 years ago.
The list could continue but these items are enough to understand that nobody in 2017 can predict with certainty the original intentions of the drafters on matters such as these. Although an Originalist would reply, as did Gorsuch, that research of the original documentation would give us an idea still does not allow for a new world radically different from the past.
Tomorrow
The 27 amendments of the Constitution are proof of issues that were not foreseen by men who allowed slavery as part of a “free” America in the 18th and part of the 19th centuries, just as they did not give equal rights to women.
In effect the Constitution of any country is a living document. The basic rights and principles remain the same but the applications change as society changes over time. The slaves and women without voting rights of the 18th Century are now fully fledged citizens of the country just like the men that were the main subject of the document at its birth.
As we watch the confirmation hearings in television or follow it on the internet on a news site let us remember that we are doing something undreamed of two centuries ago and therefore not covered by the original Constitution.
Thus we should remember that limiting the Constitution to a strict literal interpretation does not reflect the world that we now live in. The Constitution belongs to the country and should reflect the changes in the nation, in every way.
