A curious feature of the "original intent" school of constitutional theory is just how close it comes in form and attitude towards the "biblical literalism" form of Christianity. Both insist on "interpreting" a sacred text according to how it was originally "intended" and in no other way.

Fred Clark writes:

From their perspective, community standards have been devolving ever since Mt. Sinai. The idea that the Constitution, or any revered text, might be read differently over time due to evolving community standards is the very idea these folks have been fighting against for the past century.

This is simply a continuation in a new arena of the fundamentalist/modernist controversy of the early 20th century. The fundamentalist “battle for the Bible” has escalated to include the battle over another sacred text: the U.S. Constitution. The terms of this battle are exactly the same. So too is the underlying motivation. It’s all about control.

A “living Constitution” threatens that control as surely as the living word of the Bible. Neither text can be allowed to be “living.” They must both be killed and carefully dissected to be understood properly. They must be fixed to the lepidopterist’s board and carefully catalogued. A butterfly in flight -- a living creature free and wild -- cannot be pinned down, cannot be studied, cannot be understood. Cannot be controlled.

Ben Allen offers an interesting comment:

What’s always seemed a bit of a reductio ad absurdum of the original-intent argument is that under their reasoning reinserting an amendment can cause a significant change in the meaning of the constitution. For example, if a new amendment were to be passed, reading:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

this 28th amendment would in almost no way mean the same thing as the 5th:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

I hadn’t thought of that, but it appears that he must be right: if the only thing that matters is “intent,” then inserting the whole of the Constitution into a new amendment to the Constitution would change everything. That, however, would be contrary to how the average person would understand the situation — they would immediately see this originalist position as sheer nonsense.

Geoff Arnold offers possible explanations for why this happens:

A superficial reaction would be to assume that the fundamentalists of both types adopt this stance - authority instead of reason - because they are incapable of defending their positions rationally and reasonably. A more nuanced view is that capability has nothing to do with it: conservatives are temperamentally drawn to arguments from authority. (This is perhaps the fundamental distinction between the conservative and liberal worldview, although many conservative intellectuals might disagree.) And finally a cynical view is that conservative leaders - intellectual, organizational - adopt this stance simply because it is a path to power, to command and control the mass of people. Demagogues have always known the power that comes from unshakable conviction coupled with unquestionable authority.

I will go with the “nuanced” view. Daniel Bell wrote in 1963 that what the “right” in America is fighting is “modernity,” that “complex of beliefs that might be defined most simply as the belief in rational assessment, rather than established custom, for the evaluation of social change.”

Read More:

• Religious Right
• Religious Right News