Activist Judge "Jackass" Jones' pseudo-originalism

Judge "Jackass" Jones, poster child for activist judges

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There has been a big debate going on over the legitimacy of "originalism" as a means of constitutional interpretation [link] [link] [link -- group of blog articles concerning originalism ], but Judge "Jackass" Jones' "Founders' true religion" interpretation of the establishement clause is not even genuine originalism -- it is pseudo-originalism. If originalists like Robert Bork and Justices Antonin Scalia and Clarence Thomas are often regarded as crackpots, then what can be said of Judge Jones?

Judge Jones said in a commencement speech at Dickinson College,
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Ironically, but perhaps fittingly for my purposes today, we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Judge Jones claimed that he got the above "true religion" idea from his undergraduate days at Dickinson College, but the statement is actually a quote mine plagiarized from a book that was published long after he graduated. [link] Some have claimed that it is not a plagiarism because quote marks and a citation are shown in the Dickinson College website's copy of the speech, but the quote marks were not added for several days and the oral speech itself had no indication of quotation. Furthermore, it is not a merely a quote but is a quote mine because the original statement was selectively quoted in a way that changed the original meaning. [link]

Two of the principal kinds of originalism are "original meaning" (a kind of "textualism") and "intentionalism." Wikipedia says of original meaning,

Original meaning is the dominant form of the legal theory of originalism today. It was made popular by Supreme Court Justice Antonin Scalia. It contends that the terms of the United States Constitution should be interpreted as meaning what they meant when they were ratified, which is to say, it asks the question: "What would a reasonable person living at the time of ratification have understood these words to mean?"

"Original meaning" is a kind of textualism, which can be the current meaning of the Constitution or other legal authorities. The problem with original-meaning originalism is that it does not recognize changes in circumstances and societal standards. For example, in regard to changes in societal standards, the Founders had a much different view than we do in regard to how Constitutional protections should be applied to women and racial minorities and what Constitutional protections are needed by women and minorities. In regard to changes in circumstances, the Founders never had to consider how the establishment clause would apply to the teaching of evolution, so original-meaning originalism is of little or no help in illuminating that application of the establishment clause.

"Intentionalist" is defined as follows:

Intentionalist: An originalist who gives primary weight to the intentions of framers, members of proposing bodies, and ratifiers.

Intentionalism is on particularly shaky ground as a method of interpreting the Constitution. Some problems are: (1) There were many Founders and they had different intentions; (2) after a span of more than two centuries, it is difficult to discern the Founders' intentions; and (3) as with original-meaning originalism, it does not recognize changes in circumstances and societal standards.

But for original meaning or intentionalism to be applied at all, there has be to something in the Constitution to be given meaning or intent. For example, intentionalism might illuminate the Founders' reasons for putting "well-regulated militia" in the 2nd amendment's right to keep and bear arms. But the establishment clause only says that "Congress shall make no law . . . respecting an establishment of religion." There is nothing there that has anything to do with "true religion." There is nothing there that can be given meaning or intent in regard to "true religion." "Intentionalism" does not mean that any idea can be just pulled out of the air and be claimed to represent the intent of a particular clause of the Constitution. Even if it can be shown that all or most of the Founders held a particular idea, there is no reason to believe -- and good reason to disbelieve -- that they wanted that idea to be part of the Constitution when they did not put that idea in the Constitution. Judge Jones' "true religion" idea is as bad as the fundies' idea that the USA was established as a "Christian nation."

It might be argued that Judge Jones tacitly repudiated or retracted his "true religion" idea. I have not heard him repeat the idea -- for example, he did not mention the idea in his talk at Case-Western Reserve University last year. However, I don't think that his "true religion" statement can be lightly dismissed as just a gaffe or a faux pas -- the statement must have represented his true beliefs at the time and probably represents his true beliefs now. The statement implies that Jones would go out of his way to attack anything he thinks might be associated with organized religion. The statement showed extreme prejudice against intelligent design and the Dover defendants, regardless of whether or not ID is a religious concept.

Judge Jones says that he is not an "activist judge." Bullshit. He is a poster child for activist judges.
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