Two recent op-eds offer related views on the intentions of the "Framers of the Constitution."
Erwin Chemerinsky, Dean of UC Berkeley Law School, is not simply concerned with originalism and the intent of judicial review, but how that intent was to be carried out and actualized, and how the law was related to practice. His focus is on the "incoherence problem." In "Even the Founders Didn't Believe in Originalism," recently published in The Atlantic, he asks, "Was Judicial review imagined by the Framers of the constitution as a role for the Supreme Court?"
For Chemerinsky, the answer is "no". "Nothing indicates that the original meaning of the Constitution was to create judicial review or, if it was, that it was meant to create originalist judicial review. In fact, the evidence, including the Ninth Amendment, points to the contrary."
What is originalism? "Adherents believe that the Constitution has a fixed meaning and that it should be interpreted as it would've been back in the 1700s. Critics have made many compelling arguments against originalism, noting that it lends itself to a selective reading of history and that determining the Founders' intent is nearly impossible."
Chemerinsky argues further that courts could still "apply federal law, decide diversity cases, and resolve all of the other matters enumerated in Article III, Section 2," without necessarily ruling on the Constitutionality of a given law, or striking down laws or executive actions.
Given the influence of the British judicial system, Chemerinsky notes, "One would think that if the Framers meant for the Constitution to deviate from English law and practice in such a fundamental way, they would have been explicit about it."
For originalists, the Constitution itself ratified by "the people" is the ultimate argument for judicial review being a democratic mandate.
Yet, as is often forgotten, ignored, and/or dismissed by the rabid proponents of "American Exceptionalism," is that it is "factually wrong to say that 'the people' consented to the Constitution because less than 5 percent of the population at the time participated in ratification. No women and no people of color participated, and only a small fraction of white men did [author's emphasis]… If originalists consider it undemocratic that our laws are subject to the approval of unelected judges—who at least die or retire someday and whose replacements are appointed by elected officials—how much more undemocratic is it if society is governed by past majorities who cannot be overruled and are never replaced?"
For Chemerinsky, the conclusion is obvious, "Originalism would be justified under its own terms only if there was a basis for concluding that the original understanding of Article III was for judicial review to follow the original meaning of the Constitution. No support exists for such an assertion…following the original meaning of the Constitution, therefore, requires abandoning originalism as a method of constitutional interpretation." The Atlantic article is an excerpt from Chemerinsky's new book, Worse Than Nothing: The Dangerous Fallacy of Originalism, where he fully develops this line of argument.
Claudia Garcia-Rojas, visiting assistant professor in Africana Studies at Davidson College, in an op-ed in Truthout, "The Supreme Court Won't Save Us — It Was Founded to Defend White Supremacy," addresses the 5% of "the people" that ratified the Constitution and what they trying to protect, maintain and reproduce.
Garcia-Rojas argues that the Constitution has transformed the Supreme Court into a "national defense agency." Discussing religion, slavery, white Christian nationalism, patriarchy, and relations of power, Garcia-Rojas makes a powerful argument, "Instead of pushing merely to expand the Supreme Court by adding more justices, we should strip it of its authority by shrinking its jurisdiction and its outsized power over our lives. Better yet, we should be asking ourselves, what steps can we begin taking toward abolishing it?
Judicial review set aside for a moment, consider this perspective on the Supreme Court, "The most influential pre-Civil War Supreme Court justices viewed opposition to slavery as a threat to the national economy and security." This view made it absolutely necessary to preserve the social, political, and economic relations of domination, and enshrine those power relations into law.
Max Weber's study in Economy and Society on the transformation of institutions with the rise of global capitalist relations might be useful, "The result of contractual freedom, then, is in the first place the opening of the opportunity to use, by the clever utilization of property ownership in the market, these resources without legal restraints as a means for the achievement of power over others. The parties interested in the power in the market thus are also interested in such a legal order [my emphasis]." In other words, contracts are not (often or always) negotiated by parties that have the same position of power in society.
This dynamic of powerful political and economic elites creating the conditions for the reproduction of society with laws that maintain the economic order and social tradition reveals that "Placing the Supreme Court in the context of this history reveals a pattern. Since its inception, the court has generally operated to enshrine whiteness as the normative baseline in constitutional law, and to strengthen this baseline by consistently favoring and reinforcing the superior status of whites in the U.S." Or as Weber argues, "Every highly privileged group develops a myth of its … superiority. Under the conditions of a stable distribution of power that myth is accepted by the negatively privileged strata."
Perhaps the Constitution is actually a document of myth-making and counter-insurgency. Designed to justify the superiority of civilizational violence against the earth and earth's creatures, it functions to counter the insurgency of democratic living by kidnapped and enslaved peoples in Africa; Indigenous nations; and by women.
Check out Gerald Horne's, The Counter-Revolution of 1776: Slave Resistance and the Origins of the United States of America, which further historicizes Garcia-Rojas's argument. "The so-called Revolutionary War, Horne writes, was in part a counter-revolution, a conservative movement that the founding fathers fought in order to preserve their right to enslave others. The Counter-Revolution of 1776 brings us to a radical new understanding of the traditional heroic creation myth of the United States."
For perspectives on the US Constitution from Indigenous people, see Exiled in the Land of the Free: Democracy, Indian Nations and the US Constitution. "It is little known that the Revolutionary War and the writing of the United States Constitution and Bill of Rights were strongly influenced by Native American traditions. European philosophers of the Enlightenment such as Jean Jacques Rousseau had begun pressing for democratic reforms in Europe on the basis of glowing reports by early settlers about the New World and its native inhabitants… An aspect of American history that has been ignored and denied for centuries is the extent to which we are indebted to Native Americans for the principles and practices on which our democratic institutions are based. This is the first work to recognize that legacy and trace our model of participatory democracy to its Native American roots.
