Friday, June 10, 2005

Great column
Read it, and understand why I'm so frustrated by the current judicial nominations process. You can also learn a bit about my general constitutional philosophy (think: Thomas) along the way.


Dave Justus said...

I am in general agreement with originalism as well.

However, "decades of precedent (which might have, at first, taken constitutional liberties) become so ingrained in the life of the country, and so accepted as part of the understanding of the modern Constitution, that it is simply too revolutionary, too legally and societally disruptive, to return to an original understanding long abandoned." is a valid point as well.

Sometimes, we have to look at where we are, not where we wish we were.

My big problem with that philosophy is that it seems to reward the original taking of 'constitutional liberties' and provides no clear rational for why such liberities should not continue to be taken.

I would prefer, I suppose, a gradual return or originality. That probably would have to come from the legislature, not the courts though, and is unlikely in any event.

RFTR said...

Here's the problem with that, though... say society does begin to change back to the old way, and even gets to the point where 2/3 of the states and 2/3 of both houses of Congress wish things were interpreted the old way. The Supreme Court, by your standard, should continue to uphold that newer version of interpretation. (If you don't believe that, then you need to rethink things. If you think the Supremes should be swinging with public opinion, then it would seem you don't believe in originalism). BUT, how is Congress/the states supposed to amend the Constitution to provide for a more originalistic interpretation? After all, the text already says what they want it to say, but the courts aren't reading it that way...

I agree that precedent has to be included in our considerations, but I also think that whenever possible we should return to a clear-reading of the text at hand. If these new interpretations are so ingrained in our national consciousness, then it really shouldn't be all that hard to get an amendment passed. If it's not going to be at least relatively easy, then maybe we shouldn't be interpreting it that way in the first place?

In other words, by going along with Dave's idea, we may be simply lowering the standards necessary for constitutional amendments.

Dave Justus said...

I agree with you in a way.

Quite possibly many of these changes should have been ammendments. They won't be ammendments now, because as they are already expected and imagined to be part of the constitution there is no need to ammend things.

We supposedly ammend the constitution when something we think we need is ruled unconstitutional. What is the solution for something we think we need (and hence should really ammend for) is, possibly erroneously, ruled constitutional.

That has been probably going on for a while. It is a simpler and quicker process, but can make bad precident (leaving aside all the things of this nature that I disagree with.)

I can't imagine any one bothering to put together and pass an ammendment for something that already de-facto exists.

Perhaps a better plan would be to ammend, with clearer meaning, the troubling parts of the constitution. An ammendment to the commerce clause that clarifies what the federal level should be (and perhaps removes some percieved existing powers) has actual utility.

That is of course a legislative initiative, not a judicial one.