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When my mower breaks down, I don't de-construct the manual, or look for semiotic meaning. I read it, and fix the problem.
Much current constitutional interpretation is founded on the idea that words and sentences change their meaning over time. (I agree on explicitly variable concepts, like "cruel and unusual punishment," but that's only the start of the sorts of changes now advocated.) Of course, the concept is usually used to make them change in modern, progressive ways—the Constitution says something nicer today than it did yesterday. But it's a dangerous hermeneutic, as capable of wiping out rights as granting new ones. One might, for example, justly say that privacy is a dead-letter today, and so the Constitution no longer has anything to say about it.
Above all, I think, Scalia's brand of originalism debunks entirely the idea of the law as sacrosanct :
from the interview:
Pounds again. STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL …
But let's not pretend that originalism isn't as open to judicial bias as any other method of constitutional interpretation. It might be somewhat trickier to pull off, but it's still possible to discover the meaning that one wants to find by reading historical documents.
The Catholic Church has magisterium and councils to help with interpretations of difficult passages and to reinterpret things for our age. So does the constitution. If reinterpretation is good enough for the Bible, it is good enough for the constitution.
Granted there are many apples to oranges when it comes to the Bible and the Constitution, but that is why SCOTUS exists. Are they fallible? More so than the Pope, maybe, but then they are up against it more often. I do agree with Tim that we need people to interpret the constitution who are not always marrying the Spirit of the Times (what was it that Chesterton said about being widowed?) however to think that a 200 year old document could accurately guide us completely and fully in these times is small minded foolishness.
Like most things, it is not an either/or proposition, and when it is posited that way, we end up with a lot of silly nonsense.
You can stop there. There is neither an exegetical role, nor a need for one with regards to the constitution. That's precisely one of Scalia's points (among others).
As Scalia has stated elsewhere - and this from memory, but I believe I've got the gist - is that evolutionary assessment so often follows the exact same trajectory of one's own views. Well, howdy that!
SCOTUS exists not to make policy, but to evaluate resultant laws strictly within a constitutional context. Scalia exists to write dissents.
Are you SERIOUSLY saying this does not need an authoritative exegete? The way I read it, you only have the right to bear arms if you are in a militia. But my opinion is overruled by the courts reading. Which I accept.
Are you seriously saying that the first amendment is self-explanatory?
You are much wiser than that!
And yes, I was just discussing Scalia's stupid but constitutional rulings (or a current flavor of them) with regards to an abortion ruling elsewhere (barring a 16 year old ward of the state in Nebraska from obtaining an abortion without parental consent, I believe). Whether you agree with the results of the ruling or not (or the laws that led to the ruling) is an entirely different discussion than whether the ruling is correct within the current judicial framework.
One could argue that you don't actually have to belong to the well-regulated militia for the second clause to be valid. Then again, one could also ask whether the well-regulated militia is currently necessary to the security of a free state...
The sentence itself is much a clusterfuck. Someone like Scalia could argue that whether or not the sentence is a clusterfuck is not even germane to the discussion at hand about whether the gov't should limit/control gun ownership (And Tim, I know you consider yourself something of a second amendment absolutist, but how far does that go...? Private fighter jet fleets? Hand grenades? Rocket launchers? Biochem or nuclear weapons?) But the sacrilasation of texts is reminiscent of the worst aspects of our discussions in the "Let's Talk Religion" thread about how everything you need to know about the bible is in the bible.)
It can be done, certainly, but I think Scalia's 5/4 decision upholding flag burning on First Amendment grounds is the the acid test of his consistency.
If people read their Bible as Scalia reads the constitution, fathers could still sell their daughters into slavery, women would not be allowed to speak up in any worship service, and we could stone Shirley McClaine. (I would miss her in Steel Magnolias, but that is about it.)
They're different categories of documents. The Constitution is a law. It was voted into existence. It can be voted out, or changed by a vote. It binds the nation because they choose be bound.
Are you SERIOUSLY saying this does not need an authoritative exegete?
Clauses vary. Some seem pretty clear—when the Constitution says a 2/3 veto is necessary for a legislative veto, that does not become a 3/4 veto because our Constitution is a "living document." Others, like the one forbidding "unusual punishment" have relativity baked in. The 2nd Amendment is the only one to give a reason for itself. Maybe if that reason ceases to exist, the amendment ceases to exist too. At the same time, "infringes" is stronger than the other amendment's prohibitions--it's not merely abrogated, but touched at its fringes. So, yes, some things are up for discussion. I think the court went the right way on this one--there is such a right, but it has some limits.
It may be an "adult" interpretation, but it is an intellectually fraudulent one. Originalism, at its core, says that we should interpret the language of the Constitution in a manner consistent with the meanings that the founders would have given them. But there is no indication that they intended this to be the way the document should be interpreted, and a fair amount of evidence that they intended the exact opposite. To quote Jefferson:
"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
Originalism is inherently self-contradictory, as it cannot even support itself as a means of interpretation intended by the founders.
The first offer’s Scalia’s own defense:
from it: “My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult,” Scalia said.
The second, Cass Sunstein’s :
I always appreciate Sunstein’s clarity and here’s an excerpt:
As an "originalist," Scalia believes that provisions of the Constitution mean what they meant at the time that they were ratified. He thinks that originalism increases predictability and ensures the sovereignty of We the People*. The meaning of constitutional provisions is a question of history, not morality.
*Although, I’d prefer here a more simplified use of "self-governance".
Yes, but authorial intent is fraught with enough of its own problems. Assuming that their is one correct answer to that question (and that particular people are able to act as gatekeepers to that interpretation) is rife with more problems than it solves.
Also, his helpful reminder that "Lawyers are not trained to be moral philosophers". Not even close - law is technique - the rule of rules, and never approaches philosophy, moral or otherwise.
21: yes, to an extent, but does this impose or make necessary tea-leaf reading in perpetuity? (Believe me, I like the job security aspect, but it seems as though we'll be forever building and tearing down edifices).
Which can be loosely translated to being "worse" because it is hard to do. Fundamentally, being an originalist is to be a lazy jurist.
It's like listening to fuzzi, et al, discuss the true meaning of the bible elsethread. These "meta" conversations are pretty much unavoidable. Scalia's just randomly (with his own justifications) picked a turtle on the way down and decided to park it there. It's like the Amish deciding that technology is bad, but that applies to the internal combustion engine but not the wheel or plow.
I'm amazed you could think it means that Jefferson thought laws and constitutions should change without changing… uh… laws and constitutions. You're not misinterpreting but literally not understanding the words he wrote. See the first clause and the word "but." He is saying that, yes, he thinks laws and constitutions should change.
Incidentally, the original quote--before being mangled to support FDR's uses—makes it ever clearer:
"I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." - Jefferson to H. Tompkinson ( see http://teachingamericanhistory.org/library/document/letter-to-samuel-kercheval/ )
It is abundantly clear that Jefferson thought the Constitution should change. He proposes a number of amendments in the letter, including that Constitutions should have expiry dates, so the people can reassent to them, or change them. The letter nowhere indicates that it should change without being changed. Imagining that Jefferson—the absolute high-priest of anti-monarchical thinking among the Founders, and frequent champion of actual amendments—would want unelected, lifetime judges changing the Constitution on their own initiative is simply ridiculous.
I'm amazed that you think he's limiting his argument to textual changes, assuming that Jefferson was somehow unaware of the tradition of common law judicial interpretation that had been part of British (and therefore American) jurisprudence for hundreds of years. The level of historical ignorance required to hold that view is somewhat breathtaking.
A general rule of thumb: if the questions are longer than the answers they elicit, you've got a problem.