Entry from May 8, 2010

Everybody knows, of course, that those of the progressive persuasion — whose recent abandonment of the word “liberal” may finally allow us to rehabilitate that fine old word — are smarter than other people and much smarter than conservatives. It’s what they base their principal appeal on: that they “get it” as those who oppose them do not. Yet for all their massive brainpower, they often prove remarkably inept at constructing a simple argument. Take the historian and one-time fabulist — about his non-existent Vietnam War record — Joseph Ellis who takes on the doctrine of original intent in The Washington Post:

The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don”t have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the “miracle at Philadelphia” was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document. Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court — Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito — claim to believe in it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence.

Not too surprisingly, he offers not a single syllable of evidence in anything they have said or written that Messrs. Scalia, Thomas, Roberts and Alito believe anything so preposterous. He merely asserts that they do. He himself has made up “the Immaculate Conception theory of jurisprudence” — and his apparent ignorance of what the Immaculate Conception is is all too common — and attributed it to them in order to make the work of discrediting them easier.

In other words, this is another of those straw-man arguments that even The New York Times noticed a year ago were so typical of our President — as when he kept saying that those who opposed his plans for health-care reform “want to do nothing” to reform health care provision. Sometimes those who find the original intent of the Founders inconvenient for their own purposes will accuse those who wish to adhere to it as treating the Constitution as “Holy Writ,” an argument of which Professor Ellis’s is a variation. The fact that most of them set no more store by Holy Writ than they do by the Constitution is not meant to spoil the usefulness of the analogy for them. But no one supposes there can be no authority short of a divine pronouncement of “timeless and transcendent truths.” The truths so happily hit upon by the Founders at Philadelphia were of the political variety, neither timeless nor transcendent nor omniscient. Verities may yet be verities without being eternal.

That the Founders themselves recognized this is evident from their inclusion in the Constitution of provision for amending it. But the processes for amending it they made to bear some resemblance to the processes by which it was written in the first place — that is, with the broadest possible democratic consent. Among the Founders’ original intentions, there can be few of which we can be more confident, yet those like Professor Ellis who sneer at the believers in original intent, and who want the Constitution to require or prohibit things that the Founders patently did not intend to require or prohibit, never seem to have in mind a constitutional amendment to make that document say what they want it to say. Rather, they rely on the conceit of their own superior intelligence and ingenuity (or possibly “empathy”) — and that of the sort of judges they favor — to find some warrant in it, however flimsy, for the doctrines and measures they favor. I think we’re supposed to thank them for it, and to feel grateful to their gigantic brains for getting around the cumbersome requirements of democracy.