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View Diary: On Constitutional Interpretation: Originalism v. A Living Constitution? (286 comments)

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  •  My understanding is... (4.00)
    that these "Originalists" are just another group of right wing people who wish to dismantle all of the protections and rights, namely equal, that the people have been granted over the last century or more.

    For the past three or four decades, the powerful people on the right who have hated how democracy has  prevented them from securing absolute power have needed a way to be able to dismantle our Democracy and it's civil protections without explicitly saying so. They can't come out and just say they hate America, because nobody would agree with them; which is why they always accuse us on the left of hating America. Instead, they just cover up their hate as "another point of view" in order to camoflauge their intent.

    They claim to offer another, but equally important understanding of the law, when in fact, they merely seek to roll it back to it's originally written form so that they may then re-interprate it, with prejudice, to say what they want it to mean, not what it was "meant" to be as in your statement of it being living document. They are just the Judicial wing of the right's war on America, Democracy, and Liberty.

    As far as I am concerned, they truly are the enemy within.

    Reason obeys itself; and ignorance submits to whatever is dictated to it. -Tom Paine

    by Alumbrados on Sat Jul 23, 2005 at 12:31:30 PM PDT

    •  Bingo (none)
      that is exactly my take on it all too. Well said.

      Let the Democratic Reformation Begin

      by Pounder on Sat Jul 23, 2005 at 12:34:34 PM PDT

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    •  If it was valid (none)
      to add those protections and rights other than by Constitutional Amendment, then it is now purely a political question of which rights you support.

      This is not necessarily a good outcome for freedom.

    •  Actually, many libertarians--myself included-- (none)
      are 'originalists' when it comes to Constitutional interpretation.  This is because, libertarians tend to be are driven by principle, are apprehensive of government power and understand the danger of allowing judges to pretend the constitution says things it really does not.

      An example: Suppose W believes abortion is wrong and wants to make it illegal...everywhere in the country.  Why not appoint judges that are willing to say that abortion is unconstitutional?  There is at least as much--and I believe MORE--language in the constitution that can be read to support such a reading as there is language that supports a woman's 'right to have an abortion.'

      Namely, what about the Fifth Amendment?  "No person shall be...deprived of life...without due process of law." All a right-wing activist judge would have to do is say that a fetus is a person and he would have an argument that abortion is unconstitutional.

      Farfetched interpretation?  Absolutely.  Any more far-fetched than the 'reasoning' used in Roe v. Wade?  I don't think so.

      That's why it seems to me that starting a precedent where judges can make up the law is only a recipe for disaster when one's own side is out of power later on.

      In my view--and in the view of a whole lot of others who support individual liberties including a woman's right to choose abortion--the only intellectually honest way to interpret the Constitution is the Scalia and Thomas do it.

      •  Self-contradicting... (none)
        But what, exactly, is "making up the law" about deciding that a developing fetus at some stage acquires those characteristics that define "person"? A justice can only rule on the facts in front of him and the statutes that he is provided. "Person" is a non-simple term if we think broadly; would a hypothetical alien be considered a "person"? Is a severely retarded newborn a "person"?

        To limit a justice to the narrowest or most literal interpretation of the law is to deny justice to the deserving but unrecognized.

        Such is the principle that has recently bogged down capital punishment. Also that which has given us Miranda, and so many other important definitions of our Constitutional principles. As a libertarian, I think you would see that this door swings both ways; without it, we rely strictly on the majority-driven laws of the Congress.

        True compassion is more than flinging a coin to a beggar. It comes to see that an edifice which produces beggars needs restructuring. --Martin Luther King Jr.

        by Phoenix Rising on Sat Jul 23, 2005 at 09:23:02 PM PDT

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