Justice Oliver Wendell Holmes said: ``I don't care what their intention was. I only want to know what the words mean.'' However, the First Amendment's words guarantee freedom of ``speech'' and ``press'' but surely the amendment's authors intended to also protect, for example, handwritten notes. So, is discerning intent -- what the Framers of the Constitution or the enactors of legislation expected would be the consequences of what they did -- one way of deciding meaning?
Tribe says justices must respect the ways in which the Constitution ``is a work in process, a body of law that 'We the People' do not in fact 'ordain and establish' all at once, in the originalist's equivalent of the physicist's big bang.'' But ``originalists'' strive to promote judicial restraint by stressing that the Constitution must be construed to mean only what the Framers and ratifiers of the text thought it meant.
One problem, however, is that what was originally thought can be unclear. Another problem is that what arguably was thought by an original majority is now simply unacceptable. For example:
In 1798, just seven years after the First Amendment was added to the Constitution, Federalists, then a congressional majority, said the Sedition Act was compatible with the amendment because freedom of speech meant only freedom from prior restraint -- from prohibitions on speaking -- not freedom from subsequent punishment for what was said. However, Republicans such as Albert Gallatin said it is ``preposterous to say that to punish a certain act was not an abridgement of the liberty of doing that act.'' Is the fact that Gallatin's view has prevailed a defeat for ``originalism''? If so, aren't you glad?
With its Dred Scott decision of 1857, the Supreme Court sought to solve the sectional crisis by ruling that under the Constitution slaves and their descendants could never count as U.S. ``citizens.'' Is it not arguable that this decision was (a) originalism and (b) activism?
Holmes, advocating judicial restraint in the name of majoritarianism, said: ``If my fellow citizens want to go to Hell I'll help them. It's my job.'' In the last decade alone, the Rehnquist court, in an unprecedented flurry of activism, has struck down more than three-dozen enactments by the people's representatives in Congress. Are you for such judicial activism or are you for helping us go to Hell? Or is this the fallacy of the false alternatives?