Fantastic Post

Here is a fantastic post on Constitutional interpretation and a theory of a living constitution that has me wondering whether it is possible to have a static constitution within a legal system that makes opinions in individual real-life cases. Any respect for law limits (slows) change, but any interpretation of law is necessarily from some judge’s perspective. Even judges who claim to interpret the constitution as the founders originally meant it are really interpreting it as THEY think the founders originally meant it. It is, therefore, interpreted from a current or modern perspective: it can not be any different.

The “originalism” argument is a trope. It isn’t about process it is about results. Those who claim to be originalists are really saying that they like the result that their modern belief about what long dead 18th century men thought. There really is no debate about whether the constitution is a living document or not. It is alive: indeed it wouldn’t be relevant if it were not. All judges want to change what they think are incorrect decisions even if they feel constrained by relience or “stare decisis” from making a change. This human desire to fix what is perceived as broken is what makes the constitution alive.

What originalists are really saying is that they want to make changes that result from their modern prejudicial view of what the 18th century was about. Nothing more. All that the label “originalist” tells you is what arguments for change are most likely to work with that person.

Here is a great Lincoln quote on this, as presented in the post linked to above

“Faced with a deeply unjust decision, Dred Scott v. Sanford, Abraham Lincoln once said
that Dred Scott was law, and should be respected until it is altered or
overturned, but “we mean to do what we can to have the Court decide the
other way.”Here Lincoln articulated the basic premise of a living Constitution as a process.”


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s