Mike Rappaport discusses a classic Star Trek episode, Omega Glory:
That is the one where Kirk goes to a planet and instructs the Yangs about their document, “The Constitution of the United States.” The Yangs – through centuries of decline – cannot even read the document properly and do not understand its meaning. Kirk corrects them. For many originalists, Omega Glory is a metaphorical tale of how the Supreme Court and the modern legal culture have misunderstood the Constitution.
In the rest of his post, Mike is responding to these earlier comments by Chris McGlothlin and the responses seem spot-on to me. But I thought I’d mention that this particular episode has made several appearances in originalist scholarship, and is particularly relevant to the “positive turn” in originalism I discussed yesterday.
In Captain James T. Kirk and the Enterprise of Constitutional Interpretation, Michael Stokes Paulsen writes:
We are, of course, the Yangs. True, our Constitution has not been forcibly buried away for hundreds of years by a nuclear holocaust. But it has been lost to the People, rendered very nearly unintelligible by the high priests who have assumed (and whom we have allowed to assume) the responsibility for interpreting it. The Supreme Court’s present style of constitutional discourse is the practical equivalent, so far as the mass of the People is concerned, of the Yangs’ inarticulate grunts. The Court speaks in terms of multi-part tests and tiers of scrutiny, language that corrupts the plain-spoken words of a document intended to be accessible to all, and to belong to all, by adding a [veneer] of pseudo-sophisticated legalese. This corruption serves to distance the people from their Constitution by rendering it inaccessible to common understanding. Simultaneously, it removes the Constitution from the People’s view and from their control. Thus corrupted, the words of the Constitution, our fundamental charter of rights and of government, have become the exclusive province of an elite cabal of high priests.
Paulsen intends this as an argument for originalism, and I used to think it was a very powerful one. But I’ve now come to think that this passage is more of a problem for originalism than a defense of it. Here’s what I say in response to Paulsen in the current draft of Is Originalism The Law? (coming eventually):
But if that is true—if it is really lost—then conceptual or textual arguments are not good enough to recover it. It is possible that we today use the document in a way that is contrary to what it says, and if we do in a sufficiently widespread and settled way, then that new understanding is the one that is the law. And if that new understanding is the law, then the old Constitution’s claims about how to interpret itself are beside the point, just like the Articles of Confederation’s instruction that it “shall be inviolably observed.” … So for the conceptual defenses of originalism to succeed, they need additional premises about the law of the United States today—that the original meaning of the Constitution itself remains the law of the land.
I am ultimately optimistic about whether that can be shown, but I do think that some of the work has yet to be done.