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Original Unintent

February 20, 2017

I know some of you are going to hate me for this, but I've always believed that the concept of looking for the "original intent" of the so-called Founding Fathers (not to be confused with so-called judges) is unbelievably stupid.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

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I know some of you are going to hate me for this, but I've always believed that the concept of looking for the "original intent" of the so-called Founding Fathers (not to be confused with so-called judges) is unbelievably stupid.

There's no way those Father guys could have intended anything for most modern-day problems. Technology has taken us to places and situations none of them could have thought about unless they were science fiction writers, and I don't think any of them were.

If Ray Bradbury, Robert Heinlein and Isaac Asimov were Founding Fathers, I might take them seriously, but they're not. (At least I don't think so — one has to consider the possibility of time travel when dealing with science fiction.)

Besides, a lot of those Fathers (if not all of them) were sexist, elitist slaveholders. (Insert unfair joke here about the Trump administration.) So I don't want our courts taking their opinions seriously.

And even if you do take them seriously, you've got to admit that modern advances have created situations that they couldn't have intended anything about.

To prove the point, I bring you modern tales and dilemmas described in three lawsuits filed on the same day last week in Los Angeles.

The Sad Tale of Emma and Isabella.

This is a celebrity story. Yes, the Founders might have had notions about the concept of celebrity — but probably not the modern definition, i.e., special people to whom we must pay undivided attention for no readily apparent reason.

But what I really want to know is what the Founders would have originally intended when it came to deciding custody battles — over pre-embryos.

Not children. Not babies. Not fetuses. Not embryos.


This is the sort of thing that could easily go to an appellate court, so if you’re an original intent aficionado, you’ve got some serious imagining to do.

You may have seen news reports of this suit last week but probably without all the wonderful detail in the complaint.

The plaintiff is Sofia Vergara (a celebrity, for those of you who don’t know) and her lawsuit claimed a breach of a “Directive for Partners Regarding the Storage and

Disposition of Cryopreserved Material Which May Include Embryos.”

You can’t get much more romantic than that.

The suit doesn’t explain what a pre-embryo is, as opposed to a plain old embryo, so I hit the search engine. The most popular definition is an ovum within 14 days of fertilization before being implanted in a uterus.

These pre-embryos were created more than three years ago. Apparently, freezing stops the statute of limitations period for graduation to embryohood.

It does not, however, stop the clock on litigation. Before Vergara sued last week, a suit was filed in Louisiana on behalf of Emma and Isabella — the pre-embryos — that claims their inheritance “is prevented by (Vergara’s) refusal to allow the two pre-embryos to be brought to term.”

Vergara says the father, Nicholas Loeb, is behind the pre-embryo suit and the naming of the pre-embryos. So I’m guessing part of the problem is she doesn’t like the names.

Who really represents Emma and Isabella, and should they get their inheritance before they’re born?

I blame these problems on science.

Movie realism.

Did the Founders worry about political correctness?

Maybe they did, but I bet they didn’t talk about movies or Nazis.

This is from a complaint filed against a film director: “Coolidge demonstrated a severe — and inexcusable — lack of judgment when she decided to don Nazi SS garb, including a Nazi officer’s hat, during the production, including while shooting the picture’s Auschwitz concentration camp scenes. … Coolidge’s actions were particularly offensive to Mr. Z. Raczynski, whose father (on whom the picture was based) was imprisoned by the German Nazi regime.”

I’m looking forward to a sensitive, realistic portrayal of concentration camp life when this movie comes out.

Offensive homonym.

And then there’s social media.

A longtime tennis sportscaster named Doug Adler says he was fired by ESPN after he used a common term to describe a style of tennis: guerilla tactics.

Unfortunately, he applied this term to Venus Williams and part of the Internet went berserk — outrage hobbyists thought he said “gorilla.”

According to the sportscaster’s lawsuit, a New York Times writer who knew better but wanted to ingratiate himself with the Williams sisters tweeted that Adler said “gorilla” and “ignited the flames of anger and hatred against plaintiff.”

Maybe we should all stop saying and writing things in public.

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