Academia

Constitutional Interpretation: Originalism and Contemporary Ratification

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Before his death, the late Justice Antonin Scalia was the considered the most conservative Justice on the Court. His method of interpreting the Constitution, called Originalism, is proof of that claim. Scalia prefaces his argument with the assertion that, “…originalism is not, and had perhaps never been, the sole method of constitutional exegesis.” (231) Originalism, at its most basic comprehension, is the belief that in order to interpret the Constitution, one must apply the Framer’s intent. We are bound to the original intentions of the Founding Father who sculpted our Constitution and we are bound to interpret it as they would. Original intent, he claims, is the most beneficial interpretation; it requires putting yourself in the time, context, and minds of the Framers. This requires an “enormous mass of material” (233); ratifying debates, notes, books, an evaluation of reliable materials used as consult at the time, a political and intellectual atmosphere, even down to assuming the beliefs, philosophies, and principles that guided each individual Framer. Sounds hard, right? It is, and necessarily so. Original intent is not a defect of originalism; it is the feature. Scalia insisted that this is the proper interpretation because it does not require the need for constitutional guarantees to ensure that its laws will reflect the current values of the time. (234) In other words, we don’t need to check the Constitution every time we make a new law because we are already abiding by it in the most literal approach.

Yet even Scalia admits originalism is not the end of the debate. The chief concerns of originalism are justified; that it’s a strong medicine to take that requires great and careful consideration and a trained mind to successfully interpret, leading to many false interpretations of the theory. But the chief defect, he points out, is that it may be more appropriate for the given task it is applied to. Rather than being a defect with the theory, the defect lies within applying whatever task stands before the Constitution. So, if there was a law that does not adhere to Originalism, it isn’t the fault of Originalism but rather the fault of those trying to apply Originalism to that law. If that law cannot pass the original intent test, it is unconstitutional. Among Scalia’s concessions, he fails to acknowledge the inconceivable evolution of society. Scalia argued, “I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging. But then I cannot imagine such a case’s arising either.” That itself is a concession in the fault of originalism; the inconceivable is not accounted for in such a theory. One can argue that, for example, a right to privacy is outlined in several Amendments of the Bill of Rights and that we should interpret our right to privacy as a guarantee. However, I argue that the Framers may very well have believed in a right to privacy…but I don’t believe the Framers could fathom a global broadband network that instantly connects most of the human race, preserving all your personal information and the entire history of our species. And that is only after explaining what a “photograph,” “display,” and “audio file” are. These would be unfathomable to men and women who lived nearly 250 years ago and that is the problem. Because it is the unfathomable that tests the strength and resilience of our Constitution against time. And Originalism does not account for the unfathomable, even when it tries to.

Justice Brennan offers an entirely different theory. He believes that the Framers are not what bind us to the Constitution because the Framers could not conceive of the issues testing our nation a hundred years or more ahead of them. The Founders purposely included these broad, vague, noble principles for future generations to interpret; according to Brennan, the Constitution is an aspirational text full of values we should be striving toward. Values such as social justice and human dignity run throughout the Constitution and should not be overshadowed. Rather, we are bound to the traditions and aspirations that preceded us since the Founding. Brennan argues that it is impossible to put yourself fully in the shoes of the Framers because doing so would require one to abandon the principles and moral judgment one has lived with their entire life. Doing so is not an easy task, as Scalia pointed out. But I do find myself agreeing with Brennan slightly more. I don’t believe there is a way to properly let go of all your judgment and moral compassing to become fully immersed in the shoes of another…not to mention, another from over 200 years ago. Because exactly what you are doing is imagining. Imagination rightfully anchors us to our own aspirations and ideals, and as such we do read into the text what we want to find.

But Brennan also believes that the Constitution is not blueprint limiting government; it is instead a public text of our aspirations for this country in the contemporary society. “…Because ours is a government of the people’s elected representatives, substantive value choices should by and large be left to them. This view emphasizes not the transcendent historical authority of the framers but the predominant contemporary authority of the elected branches of government.” (238) Effectively, Brennan is suggesting that the nature our democratic republic necessarily requires a reading of the Constitution that is contemporary. The nature of our democracy elects the persons who best represent the ideas and goals of the people. Take gay marriage as an example; it is, I believe, safe to assume that a candidate running for President in 2016 will not be elected by the majority if s/he does not support or believe in same-sex marriages.

Scalia argues that if our Constitution no longer at any time meets the exigencies of society’s evolving standards, and an Amendment is required, there is nothing stopping the people or elected representatives from doing so in a proper and democratic manner. Brennan pushes that of course we look to the text and the intervening history for interpretation; but when that is unavailable to us, we must ask what the Constitution means in our own time. The problem I have with Brennan’s theory is that it makes space for far more fault than benefit. Following this interpretation leads to contemporary implementation, but also allows for an expansive government that prioritizes current societal trends over the protected rights of the people and the states outlined in the Bill of Rights.

The Cronkite Moment

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During World War II, much of American Journalism was fawning over a common noble theme: the great war was about “good people fighting a necessary war for a just cause” (Stepp). Now that is a far cry from the world we know and live in today- a world where trust in government is at an all-time low, where journalism can be overshadowed by 24-hour agenda-filled mass media parading around as credible news. My generation, the Millennials, don’t know what trust in government and honest reporting look or feel like. The trust deficit occurred well before we were born, after all.

The Vietnam War was a pivotal moment in American journalism. A turning point in the relation between journalism and government and government and its people. As outlined by Carl Sessions Stepp in The Powerful, Painful Journalism of the Vietnam War, skepticism and doubt flooded the minds and airways of journalism during Vietnam. Gone were the days of Murrow’s groundbreaking live radio report during the London Blitz, riddled with sounds of citizens on the streets, bombing raids in the background, and Murrow’s light banter and humor throughout the broadcast. Now, that’s not to say the London Blitz was cheery; rather, the reporting, the tone and language of Murrow himself was stern and concerning, but also lucid and metaphorical. Other war-time broadcasts seemed optimistic of the progress Allied forces were making. The moral support that rallied our country in WWII was noticeably absent in Vietnam. Be it the assassination of an American president two years’ prior, the fear of entering into yet another war, the politicization of the Vietnam War over communism, etc. American journalism had become cynical.

Americans call it the Vietnam War. Vietnamese call it the American War. From 1965 to 1973, The U.S. conducted aerial and ground missions in Vietnam in an effort to halt the expansion of communism. The U.S. participated in chemical warfare which contributed to the tremendous loss of life: nearly 60,000 U.S. soldiers, 1.3 million Vietnamese troops, and 4 million Vietnamese citizens were killed. Journalist David Halberstam’s reporting from Vietnam marked a separate turning point in American journalism that came to be known as “the credibility gap.” (Daly 323) The new approach to American Journalism was more skeptical, more creative in its’ reporting and investigation, and often times more honest. Which could have influenced the Cronkite Moment (the myth).

CBS News broadcasted a special report on February 27, 1968 titled “Report from Vietnam by Walter Cronkite.” The report detailed in full the effects of the War on the country and on U.S. troops. “We have been too often disappointed by the optimism of the American leaders, both in Vietnam and Washington, to have faith any longer in the silver linings they find in the darkest clouds.” Cronkite broadcasted the realities of the War in such a dark and sinister manner that, according to the legend, it brought President Lyndon Johnson to snap off the television set and yell, “If I’ve lost Cronkite, I’ve lost Middle America.” (Campbell 85) According to the myth, Cronkite’s program was so impactful that public opinion swayed almost immediately after its’ airing in opposition of the war. However, W. Joseph Campbell details in Getting it Wrong: Ten of the Greatest Misreported Stories in American Journalism that multiple news outlets had already declared Vietnam a stalemate months prior to the Cronkite report, public opinion had already begun to shift toward opposition, and, in fact, there would have been no way for President Johnson to have seen the live report as he was speaking at a birthday party for the Governor of Texas. It is possible Johnson saw the report later on, but not one of his advisers can confirm the “If I’ve lost Cronkite” reaction.

Despite the real possibility of the Cronkite Moment being totally fabricated, it served as a gold standard in American Journalism. And maybe it still serves as one, albeit an idea or folk legend rather than fact. It is an interesting contradiction we have taken with this story: an industry built on accuracy, information, and objectivity has largely adopted a fabricated story as its crowning achievement. Can this myth coexist with truth and reporting atop the pillars of journalism?

Perhaps the effects the Cronkite Moment had on American journalism can’t be seen in numbers or data points. Consensus’ collected months before the program’s airing showed a shift in American support into opposition of the war. Multiple news outlets began declaring the war a failure, with the New York Times calling it a ‘stalemate’ months before Cronkite even ventured to the war-torn region. Perhaps this Cronkite moment necessarily boosted the morale of journalists and journalism reflecting on a time when cynicism and doubt riddled the industry: Special Report from Vietnam provided the industry proof that journalism could influence the world. Even if it never actually happened.

 

 

Bibliography

BBC, News. Special Reports: Vietnam War: History. November 2015 <http://news.bbc.co.uk/2/shared/spl/hi/asia_pac/05/vietnam_war/html/build_up.stm&gt;.

Campbell, W. Joseph. “Debunking the “Cronkite Moment”.” Campbell, W. Joseph. Getting It Wrong: Ten of the Greatests Misreported Stories in American Journalism. Berkeley: University of California Press, 2010. 85-100.

Daly, Christopher. “Rocking the Establishment, 1962-1972.” Covering America: A Narrative History of a Nation’s Journalism. Boston: University of Massachussetts Press, 2012. 322-351.

Stepp, Carl Sessions. The Powerful, Painful Journalism of the Vietnam War. October 1998. November 2015 <http://ajrarchive.org/Article.asp?id=3404&gt;.