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

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  •  "Originalism" = Stupidity (none)
    Anyone thinking for more than just a few minutes will quickly dismiss "originalism".  Anyone knowing their constitutional history will dismiss it with scorn.  

    First, among the founders there was vigorous disagreement RIGHT AWAY about what the words of the constitution meant in practice.  There had to be a further "living agreement" about how to apply it.  If the founding fathers couldn't agree about their own words, how silly can it be for someone in 2005 to pretend to be able to enter some imagined-to-be devinely inspired head from 1787?  Just who's head are they trying to crawl into?

    The next problem with originalism is context.  Situations exist today that did not exist in 1787.  Pollution beyond horse poop in the streets was not a significant issue.  It sure is today, and it definitely is an interstate issue.  For originalists to argue that the commerce clause cannont be used to regulate pollution because such issues didn't exist is absurd.  The commerce clause was deliberately written to be slightly vague, relying on the good sense of posterity to regulate themselves.

    Similarly, broadcast medium didn't exist in 1787. Congress and the courts grappled with the issue for a long time before deciding to regard broadcast information as "press."  Personally, I think it is a terrible mistake to equate the two, (That would be a whole different diary.) but some sort of court rulings had to take place to clarify how we would think of broadcast medium within our traditional legal framework.  

    The people arguing for Originalism probably wouldn't like it even if they got it.  Prior to the civil war the bill of rights was generally understood to restrict the actions of the federal government, not states.  Some states did restrict freedome of the press, or ownership of firearms.  It was only after the "incorporation rulings" of the late 1800's that the rights enumerated in the bill of rights were considered real and universal individual rights (with some hypocritical exceptions regarding race/gender).

    Yet another problem with originalists is their rank hypocrisy with reagard which "living constitution" rulings they don't like.  Note the deafing silence on the right about the several court rulings giving corporations the rights of individuals.  The founders must be spinning in their graves at the power handed to corporations by the courts.  Madison specifically warned against coroporate power in his federalist papers.  The constitution refers to persons, congressmen, citizens, etc.  Corporations, other than the constitution, are subsequent creatures of legislation.

    So let's summarize:  The "Originalists" believe in a "Living Constitution" that furthers their current right wing corporate agenda.  They would never advance their agenda by arguing it openly so they invent confusing arguments such as "Originalism". Got it?

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