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

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  •  Originalist Red Herring (none)
    This "originalist" red herring has a rich history of being offered up by those with a particular political point of view.  In Ron Chernow's Alexander Hamilton's biography, is it clear that there is a sensible group of people who believe that the Constitution must be interpreted to apply to the evolving context of a reality it could never have anticipated.  And it is clear that there is a group of people -- Virginians! -- who trot out the idea that the Constituion must be interpreted literally.  And it is clear (at least to me) that this literal interpretation idea was not held in good faith, but advanced merely to promote a political point of view (same as now -- that the government should be extremely limited in its functions).

    The thing of it is, not only is this debate nearly as old as the Constitution itself, but one side is clearly right and one is clearly wrong.  The idea that the meaning of the Constitution can and should be locked down to a particular point in time would render the document useless in no time at all.  This "originalist" point of view is not held honestly, as Scalia's comments on the 14tyh and 19th amendments makes clear.  His point is not that the Constitution must be amended by a formal process, as he says it is.  His point is that some interpretations go too far from sound constitutional theory -- and in this point he is surely correct.

    Everything on the right -- from the lower-taxes/smaller government business, to the strict constructionalist nonsense, to the hateful anti-gay marriage amendment, to the downright silly no-flag-burning amendment all share this in common: they are all criticisms of perceived excesses of mainstream liberalism (and by that I mean the liberalism that remains even now in the mainstream of American political thought).

    They critique.  We propose.  Right now, they've staged a switcher-oo, with our leaders being all-too-complicit.  We must have leaders who will call for what we're known for: progress.

    For example, how about the idea that the Constitution protects my right to say anything I want on a blog?   Let's promote that!

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