Constitutional Originalism - A Mistake Big Time

[emanymton]

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Associate Justice, Antonin Scalia, as well as others on the current Supreme Court, advocates the interpreting of the Constitution strictly according to its original meaning. The constitutional originalist legal philosophy on interpreting and following the Constitution of the United States goes along the concept that the Constitution is a fixed limiting document (contract).

The meaning of the Constitution and its amendments must only be interpreted to mean exclusively what is stated in the document and understood by the signers/ratifiers at the time the document was signed/ratified. The application of the Constitution does not change under any circumstance.

Following this line of reasoning, it is reasonable to conclude the second amendment applies to the arms available to the framers and ratifiers of the Bill Of Rights at the time they signed the document (contract) in 1791; black powder, muzzle-loading flint-lock weapons.
--- Then does it not follow that everything not available at the time of signing/ratifying, is not protected and thus subject to government control?

The meaning of press in the first amendment, at the time of signing/ratifying, referred to newspapers, magazines, periodicals and letters.
--- Again does this lead one reasonably to say everything else not in existence at the time and understood by the signer/ratifier; telephones, radio, internet, email, web sights/pages, is subject to government regulations?

Keeping mind that which construed 'cruel and unusual punishment' at the time of signing/ratifying of the Bill Of Rights, the constitutional originalist legal philosophy will allow USA to bring back public executions and display of punishment.

The constitutional originalist legal philosophy approach to law also leaves open the prospects of having to renegotiate continually, the Constitution. The day after a Constitutional Convention signed/ratified a new document, any new development after the date, would not be covered by the document.

The narrowest approaches of constitutional application as described by constitutional originalist are a mistake. These changes in the process can lead to no Constitution at all.

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[jody]

1. Does that mean public schools, welfare, etc. that did not exist in 1790 are unconstitutional? n/t

[emanymton]

2. One Could Try To Make That Argument.

[TexasObserver]

3. Determining Original Intent is a goal of all who study the constitution.

One does not have to be Scalia, or to agree with him 10% of the time, to understand that starting with Original Intent is a sound beginning to determining what the law of the land should be today.

The Supreme Court makes policy decisions, remodeling the constitution every few years here and there, allowing for the new directions of society. The entire basis of federal funding and involvement in the business of the states is constitutionally specious, but it's become part of the bedrock of how the constitution is interpreted, so we all act as if dragging everything in through the 14th amendment equal protection clause is actually a sane way to view that amendment.

Anyone who only looks at original intent is an idiot, Scalia included. It matters knowing where we started in the law, but that's just for purposes of starting the discussion. We follow the case law until the present, we look at the way the high court has evolved the constitutionality of the various amendments, and we call it THE LAW. It's different today that it was yesterday, and it'll be different again next week. It is ever changing, because laws get passed on one hand, while new trends in society tug on the other hand.

Original Intent: Good to know. Not dispositive of any issue today, however.

[Auggie]

4. I'd love to see the Constitution and Bill of Rights updated...

if only there were people without ties to special interests to do it. Good luck!

It would be Pandora's box otherwise.

[End Of The Road]

5. Ah! Just like taking the Bible literally!

And that has worked so well throughout history, hasn't it!

Seriously, my experience with organizations is that those that don't grow and adapt to meet the changing needs of the members (while still serving its fundamental purpose) decline and often fail. Societies change, and inflexible government equals ineffective government.

[Malidictus Maximus]

6. And what about all media besides manual printing presses and town criers?

In seriousness, I think the fundamental idea of the constitution and it's application was/is sound- it is a limitation on what the government can do. It is implied and even stated that any power NOT specifically given to the (federal, before the 14th) government is reserved to the individual or the states.

The only real problem, to me, is that the founders did not envision how powerful corporations would become, and the largest drawback to a very weak state (in terms of being able to restrict individual rights) is that it is not powerful enough to keep corporations from oppressing individuals. I like the idea of a government that simply does not have the power or authority to outlaw pot, guns, abortions, releasing the Pentagon Papers. But the other side to that is a government that would be impotent in dealing with Clear Channel, Blackwater. Standard Oil/Microsoft, the KKK..... Same conundrum with regard to 'States Rights'. a federal government 'intrusive' enough to desegregate lunch counters is also intrusive enough to pursue a 'war on drugs' despite the desires of the citizens of a state like California.


:kick:

[alarimer]

7. He believes in originalism EXCEPT with regard to the Second Amendment.

THAT decision was based on the "Constitution as living document" because it overturned nearly 70 years of precedent. Not that he was wrong necessarily to do so but it does seem terribly inconsistent at best and probably means that Scalia, et al, pretty much make their rulings based on their political opinions and nothing more.

[fasttense]

8. Just another dogma used to hide the real intentions of the wealthy elite.

They can't come out and say we want to go back to the 1700 where every form of slavery and abuse of workers was approved and sanctioned. They can't say we want to go back to the 1700 where the poor knew their place and kept their mouths shut while starving to death quietly in the streets. They hide behind the ideology of Constitutional Originalism like they hide behind the ideology of "free trade", religious fundamentals, creationism, no child left behind and school vouchers. It is all a ruse to put otherwise untenable authoritarian corporate power policies into place.