Originalism

 

“Originality is Simply a Pair of Fresh Eyes”
~Thomas Wentworth Higginson

If someone calls you an “O.G.” take it as a compliment. The abbreviated term is usually short for, “Original Gangster,” or “Old School.” It is often an homage to the style or approach of a person, usually older in age, whose tactics, values, or beliefs were likely popular during an era from years past. The qualities embodied by an “O.G.” can sometimes be unconventional, dated, yet effective. But not everyone is an “O.G.” When you were young, you certainly knew of an older person whose thinking and beliefs were dated and not reflective of our community’s current values. One reason beliefs become outdated is because as people we evolve.

When a Supreme Court Justice calls themself an “originalist” it often means they recognize the United States Constitution to be a fixed, original document that defines the law of the land. They frequently interpret the Constitution through a lens of the framers’ 1787 intent. Contrary to an “originalist” is a style of constitutional interpretation, understanding the document as one that lives and breathes, adapting with the times regardless of a formal amendment.

Justice Amy Coney Barrett described her originalist view in her Senate confirmation hearings as, "I interpret the Constitution as a law; I understand it to have the meaning that it had at the time people ratified it.  That meaning doesn't change over time and it is not up to me to update it or infuse my policy views into it."  

At the time people ratified the constitution women weren't full citizens, Black people weren't recognized as people, but as property, and indigenous people in this land weren't recognized as citizens of the land they inhabited for years prior to Europeans arriving.  

The fascination with originality in this country remembers the good but forgets the bad.  Because the true origins of this country were founded on the false idea of white supremacy.  that false ideology, with the biases accompanying it, permeated many of the policies that created the historic injustices of this country.    

There are certainly some redeeming qualities of the all-white, male version of the U.S. Constitution written in 1787, most notably the separation of powers designed to avoid tyrannical rule.  But to be loyal to a 234-year-old document in its original format and intentions can only come at the expense of the rights and dignity of the marginalized communities who were not invited to the Constitutional convention in Philadelphia, PA.

With age often comes wisdom. But this idea applies to people, not documents. When people revere the U.S. Constitution, they must acknowledge its deficiencies which we’ve been correcting through movements, legislation, and amendments since its adoption. Justice Barrett is not an “O.G.” and perhaps the next appointment to the Supreme Court bench will view the U.S. Constitution with 21^st-Century values of equity in mind.

William C. Snowden, is the Founder of The Juror Project and proud son of Billy Ray and Kay Snowden.

CHOOSING JUSTICE OVER EXPEDIENCY by John Celichowski, OFM Cap.

  

In his moving book, Just Mercy:  A Story of Justice and Redemption, lawyer Bryan Stevenson posits that the true character of our society and our commitment to justice, the rule of law, and equality are not found in how we treat people who are wealthy, powerful, and privileged but rather how we treat "the poor, the disfavored, the accused, the incarcerated, and the condemned."

Stevenson's judgment is echoed in Catholic Social Teaching.  "A basic moral test" the Catholic Bishops of the United States have noted on their website, usccb.org, "is how our most vulnerable members are faring.  In a society marred by deepening divisions between rich and poor, our tradition recalls the story of the Last Judgment (Mt 25:31-46) and instructs us to put the needs of the poor and vulnerable first."

I write this brief reflection on Good Friday.  As we reflect on the unfathomable depth of God's self-sacrificial love for us, we also confront the injustice of Jesus' persecution, trials, condemnation, and execution.  Contemporary historical accounts of Pontius Pilate suggest that he could be callous and cruel.  In the gospels, he is described more sympathetically, but that has more to do with the polemical needs and theological purposes of the authors than his character. 

In dealing with Jesus, Pilate was driven more by expediency than justice.  In trying, condemning, and executing Jesus, he was giving the mob what they wanted and making sure that everyone knew that he was "a friend of Caesar." 

In a similar way, our system of criminal justice is driven far more by political and bureaucratic expediency than by justice.  Mercy is either an afterthought, the refuge of the privileged, or derided as weakness and being "soft on crime."  Appearing tough while spending billions of dollars dealing with the consequences of centuries of prejudice and failed educational and social policies is more likely to garner votes than doing the hard work of confronting those prejudices, challenging and changing those policies, and reprioritizing our public spending. 

The engines of failed system are fueled by racism, classism, fear, and anger.  As Bryan Stevenson points out in Just Mercy, "Fear and anger are a threat to justice.  They can infect a community, a state, or a nation, and make us blind, irrational, and dangerous."

Jesus found himself before Pilate primarily because of fear and anger.  Those who accused him feared him and the gospel he preached, and they were angered by what they perceived to be his arrogance, unorthodox teachings, and his claims to be God's Son.  Their fear and anger mailed him to the cross.  Pilate, who mockingly placed a sign in several languages proclaiming Jesus "King of the Jews," provided the wood, nails and legal machinery to accomplish it.

In the wake of Stevenson's Just Mercy, Michelle Alexander's The New Jim Crow:  Mass Incarceration in the Age of Colorblindness, and Isabel Wilkerson's Caste:  The Origins of our Discontents, as well as the killings of George Floyd, Breonna Taylor, and Elijah McClain by law enforcement officers, there are renewed cries for reform of our criminal justice system.  That will be a daunting task.  Fixing our broken legal machinery is daunting enough.  Addressing the fear, anger, and other dark forces that have forged and fueled that machinery will be even more difficult.  It has taken generations for us to get here.  It will take years of sustained effort to change.

 John Celichowski, OFM Cap.is the Director at the NAPCC Novitiate in San Lorenzo Seminary & Friary in Santa Ynez, California..