Albany Times Union Op Ed

Original intention still evolves

The recent death of Supreme Court Justice Antonin Scalia will hopefully bring an end to the silliness engendered by the vaunted “original intent” judicial philosophy he espoused.

This doctrine begs a question: Whose original intent? Although Justice Scalia routinely answered that query with a simple, “Why, the Founding Fathers, of course!” I pose additional questions: “Which Founding Father, and in what context?”

Although it is appealing to look back at the words and intentions of the true geniuses who drafted our Constitution and built the foundation for our government, I find the “original intent” pathway decidedly unfulfilling, for the simple reason that the intentions of the founders were not always consistent. Nowhere is this truer than in the religious freedom provision of the First Amendment.

The prime architects of the Establishment Clause, Thomas Jefferson and James Madison, endorsed the final verbiage (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”), but they had considerably different intents. Madison, who wrote the First Amendment, was focused on protecting religion and the religious from government interference. Jefferson, whose “Bill for Establishing Religious Freedom” was a template for the clause, was intent on protecting government and individuals from religion.

Those are not mutually exclusive concepts by any means, and I would argue that the Constitution contemplates and incorporates both. But they are different and, in an “original intent” analysis, that distinction could be pivotal.

I experienced that constitutional tension two decades ago as the lead plaintiff in Board of Education of Kiryas Joel Village School District vs. Grumet, a U.S. Supreme Court case involving a bill signed by Gov. Mario Cuomo that unconstitutionally established a public school district for a religious sect in Orange County. When the Supreme Court agreed to hear the case, it set up a battle over what was “intended” by the Establishment Clause — freedom of religion or freedom from religion, or as I maintained, both.

Louis Grumet is an attorney and former executive director of the New York State School Boards Association. His forthcoming book, “The Curious Case of Kiryas Joel: The Rise of a Village Theocracy and the Battle to Defend the Separation of Church and State,” coauthored by John Caher, will be released April 1 by Chicago Review Press. He lives in Manhattan.

Scalia, we knew, would approach the analysis in his usual fashion, searching for a sense of what the Constitution meant to “reasonable” people at the time it was ratified in the late 18th century. I thought this was a flawed methodology for several reasons.

First, deciding what a reasonable person would have thought 200 years ago is an act of futility. We can’t simply go with what we might imagine the founders intended, especially in an Establishment Clause case, because, as we have seen, Jefferson and Madison had different intentions.

Second, how in the world would we know what the founders thought about religious involvement in a public school system, since there was no public school system when the Constitution was drafted? Is it really reasonable to conclude that the founders envisioned solutions to problems that wouldn’t exist for 200 years? I think not.

And finally, the post-Civil War amendments dramatically, and inarguably, altered the meaning of the Constitution and made the original intentions (keeping in mind that the original Constitution did not intend to ban slavery or permit women to vote) moot.

In the Kiryas Joel case, I prevailed 6-3, with Scalia penning one of his most scathing dissents, where he presumed to read the minds of the founders and stubbornly adhered to his strident perception of the Constitution as the static, unchanging treatise of white, Anglo Saxon men who had figured out for all time the entire spectrum of rights included in the natural law.

I fervently disagree with that perception and believe that the Constitution is a “living” document that was meant to evolve and transform and conform to modern realities, and not one enslaved by the intentions of men who obviously could not see into the future. Rather, I share the view of two of the founders, Thomas Jefferson and John Marshall, a member of the Virginia Ratifying Convention and later chief justice of the United States.

Jefferson remarked that in a free society “nothing is unchangeable but the inherent and unchangeable rights of man.” Marshall said the Constitution was “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” So, ironically, while advocating for a jurisprudence based on originalism, it appears Scalia ignored the original intent of Jefferson, Marshall and, I would argue, the Constitutional Convention.

There is a difference between judicial restraint and dressing one’s own policy preferences in constitutional clothing, and at times that distinction seemed lost on Justice Scalia. It is my hope that the next justice appointed to the Supreme Court will appreciate the fact that the Constitution, written with a quill pen, has survived to the era of the microchip precisely because it is a living, breathing, evolving declaration of natural rights.

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