Originalism and U.S. Constitutional intent

Jan 2009
3,333
Minneapolis, MN
#1
Here is a trend that scares me.

If Scalia Had His Way

How would America change if the Scalia originalist vision — embraced by many Tea Party members — were enacted by the Supreme Court? Justice Scalia believes that the Constitution should be interpreted in light of the original understanding of its 18th- and 19th-century framers and ratifiers. That, he has stressed in recent speeches, would change our constitutional universe dramatically.
 
Jul 2009
9,925
#2
Scalia has a job for life and can afford to be philosophical. The "framers" understood that conditions change, and the Constitution had to be adaptable - which it has been. We have gone far beyond the framers' intentions in many areas, but that is due to conditions changing more than they could have foreseen.

Supreme Court decisions, over time, have tended to follow election results....and probably will continue to do so.
 

Linschoten

Ad Honoris
Aug 2010
16,202
Welsh Marches
#4
But this point to a genuine problem, that if things are set down in stone in a constitution from ages ago, the courts engage in 'creative interpretation', to read things into the words that could never have possibly been intended. So you pretend to have a constitution in which everything is set down, and yet by your very approach to it, you deny that the words of the constitution have any inherent meaning. In my own country, I would be uneasy about the courts making major changes through creative interpretation, when those changes ought really to be made by elected politicians.
 

Linschoten

Ad Honoris
Aug 2010
16,202
Welsh Marches
#6
True enough, so maybe there's something to be said for having an unwritten constitution as we do in England! I would prefer that polticians should do the bending, though, rather than lawyers, since politicians are at least accountable to the electorate.
 
Dec 2009
11,340
Ozarkistan
#7
True enough, so maybe there's something to be said for having an unwritten constitution as we do in England! I would prefer that polticians should do the bending, though, rather than lawyers, since politicians are at least accountable to the electorate.
The American "lame duck" is accountable to no one! (And did I mention that nearly all politicians are, first and foremost, lawyers?)
 
Jul 2009
9,925
#8
But this point to a genuine problem, that if things are set down in stone in a constitution from ages ago, the courts engage in 'creative interpretation', to read things into the words that could never have possibly been intended. So you pretend to have a constitution in which everything is set down, and yet by your very approach to it, you deny that the words of the constitution have any inherent meaning. In my own country, I would be uneasy about the courts making major changes through creative interpretation, when those changes ought really to be made by elected politicians.
No one pretends "everything is set down." Your evolution has been different than ours (although the basis of common law is very similar).

The Constitution is a framework, not a stone tablet. It applies to the Federal government moreso than to the states, although most state constitutions are similar - not all. Louisiana uses the Napoleonic Code as the basis of it's state government.

Law and its interpretation is based on what is reasonable, what is "usual and customary" and on precedent. It is an enabling document, not a bible. The Constitution here works pretty well as yours does in the UK.
 
Dec 2010
2,331
#9
The Constitution was a document produced through compromise. Anybody who says it should be understood through the words of only a few of the forgers they agree with is silly.
 

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