The Founders

What was the position of the nation's founders? We often hear this question in relation to an issue of how to interpret some aspect of the Constitution. Strict constructionists, those who believe that we should adhere to the actual text of the Constitution (and by extension, all laws), often are also originalists, which means that when it comes to interpreting ambiguous passages they look to documentation for what people originally thought the words meant. I understand the appeal of this thinking. We are, or at least we aspire to be, a nation of laws. Even when we try to accomplish horrendous things (e.g. the post Reconstruction disenfranchisement of Black Americans, the current voter suppression laws) we try to do it legally, i.e. by passing laws as the means to attain our nefarious ends. The weak point in any law, good or bad, is that there is absolutely no way for any law to cover all eventualities. For example, several years ago, the Nebraska State legislature passed a law exempting the sale of manufacturing machinery and equipment (MME) to companies engaged in manufacturing, from sales tax. It was left to state regulatory agencies to define manufacturing, "company engaged in manufacturing", and equipment. Would a company claiming this exemption have to be engaged primarily in manufacturing? Would parts of manufacturing equipment be exempt? It goes on and on. Pages of regulations were written, with some challenged in court. This is true for virtually any law that is passed and is exponentially greater on the federal level. For some laws, an enforcement mechanism must be written into the regulations, including penalties. 

What strict constructionalists and originalists do not take into account is how laws are not self-interpreting and that their application and administration is going to change as circumstances change. To cite another example from Nebraska tax law, outside of certain exceptions, the sale of all goods are taxable, while the sale of services is not. These laws were written before anyone had ever heard of computer software. So what is computer software? Is it a good or a service? If it's a "good", is it subject to Nebraska sales tax if it's installed out of state? What about cloud software? Currently there is a spider's web of rules and regulations that determine whether any particular software is taxable or not. How should an originalist view the taxability of software? It can't be determined with any surety, because the founders couldn't have conceived of something like software and therefore would not have had an opinion about it. Of course one can take the position that Modern "X" is just like Founders' "Y" and therefore "X" should be interpreted exactly like "Y", but it would be naught but speculation. 

Adherents to the originalist/strict textual interpretation tend to ascribe an almost godlike status to the founders that you don't often see outside of religion. They attempt to quash all argument by appeal to the wisdom of the founders, as if they weren't flesh and blood humans with human frailties. Let's not forget that aside from arguable mistakes like the Electoral College, they countenanced slavery. Is there anyone with an ounce of ethics who believes slavery is morally acceptable? So the question to ask in scenarios like DC statehood, or eliminating the Electoral College, isn't whether this was something the founders supported, or even envisioned, but whether it is a demonstrably good thing, something that is beneficial to our country. Viewing the Constitution or any of its amendments as a suicide pact that should be adhered to despite any harmful consequences is counterproductive. This is one of the reasons why the type of judges appointed to federal courts is important. Republicans tend to appoint "conservative" judges, defined as textualists, strict constructionalists or originalists, while Democrats lean toward "liberals" who are more apt to interpret the Constitution in a way that takes 200+ years of changes into account. As a practical matter, conservative judges are more likely to prop up the status quo, since the status quo is naturally a result of two centuries of originalism. With the new 6-3 conservative majority on the Supreme Court we're already seeing a continuation of solidifying of power centers. One example is the way the rights of organizations to enforce religious beliefs has been given priority over public health and individual rights. 

The Founders were men (yes, all males, not a woman in the bunch), many of whom owned other human beings and were shaped by the culture of their times. Times have changed.