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

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  •  I wouldn't say... (none)
    ...that the Framers limited the document to 'cruel and unusual by 1787 standards' either.  But an originalist would argue that the document was ratified with 1787 ideas in mind, and those are the only ideas which are credibly supported by the document itself, excepting approval through Article V means.  If we wish to expand 'cruel and unusual' to today's standards, we must reratify the document to support such a translation, otherwise we have the document supporting ideas which have not passed the normal ratification process.

    As far as whether Congress is in charge of redefining things, my argument is simply that within the Constitution we have two actors that are allowed to act in changing the Constitution - Congress and the states.  Thus wouldn't it make sense that any modifications that were made later on, whether through interpretation or other means, should also be required to deal with Congress and the states at least somewhat?  Nowhere in the Constitution are is there any explicit allowance for the judicial branch to act as a branch that can change the Constitution through any means.

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