What are your thoughts on the originalism versus living constitutionalism debate?

Futurist

Ad Honoris
May 2014
21,131
SoCal
#11
Originalism has never made sense to me in that change is the only constant in human life and society.
r
We should not expect to be explicitly governed by the rules of 1789. Life has changed too much. I think that is why common sense approves of the action of CJOTSC John Marshall and the doctrine of judicial review. It should not be a surprise to any one that nine of the states had the doctrine in law before 1803.
Would you be willing to apply that logic to overruling explicit constitutional text, though? For instance, would you be willing to embrace this Fifth Amendment argument in favor of getting rid of the natural-born citizen requirement for the US Presidency? :

https://repository.jmls.edu/cgi/viewcontent.cgi?article=1287&context=lawreview
 
Sep 2014
1,207
Queens, NYC
#14
I favor originalism. I roughly analogize the situation to a co-op or condominium-we take the apartments subject to the offering agreement. We prefer changes to be made as a result of our choice, rendered in a formal setting. We would probably object to someone's changing things against our express wishes, or at least without our expressed consent. retexan599 sets my position exactly.

Also, to be honest, I think the Founders and their contemporaries were often wiser than many of those who came after.
 
Likes: Futurist
Jul 2017
292
Srpska
#15
If something is clearly and explicitly written, there is no need for interpretation. But more importantly, it is evil, basically unconstitutional, unethical to twist something that is clear and explicit, and to introduce potential conflicts.
However, there are cases on which the Constitution is not pinpoint clear, or the Bill of Rights is not clear, maybe it does not appear broad enough to cover the case. In that case, a court can interpret it broader or narrower. Such is the case with constitutionally protected sex privacy rights for example. They were created out of the bundle in the BIll of RIghts.
Or, what constitutes cruel and unusual punishment. They wet a finger in the air and see which way the public winds blow to decide what that means.
 
May 2019
162
Salt Lake City, Utah
#16

Futurist

Ad Honoris
May 2014
21,131
SoCal
#18
If something is clearly and explicitly written, there is no need for interpretation. But more importantly, it is evil, basically unconstitutional, unethical to twist something that is clear and explicit, and to introduce potential conflicts.
However, there are cases on which the Constitution is not pinpoint clear, or the Bill of Rights is not clear, maybe it does not appear broad enough to cover the case. In that case, a court can interpret it broader or narrower. Such is the case with constitutionally protected sex privacy rights for example. They were created out of the bundle in the BIll of RIghts.
Technically speaking, though, the US Supreme Court's creation of a constitutional right to privacy was criticized.
 
Likes: thegreathoo
Feb 2013
4,324
Coastal Florida
#20
If something is clearly and explicitly written, there is no need for interpretation. But more importantly, it is evil, basically unconstitutional, unethical to twist something that is clear and explicit, and to introduce potential conflicts.
The problem with this is that, after extensive arguments and disagreements over every little point, our founders agreed only on the words which would be printed. They still had strong disagreements about what the sentences and clauses actually meant. You can discern a neutral semantic meaning only by examining contemporary dictionaries and grammars. Of course, many hate this approach because it results in clashes with popular interpretations of partisan sacred cows within the text. For instance, contemporary grammars clearly demonstrate the grammar and syntax of the 2nd Amendment require that the right to bear arms is conditioned upon the perceived need for service in the militia and many people who champion gun rights refuse to accept that. The Federalist Papers are highly regarded as guides to our understanding but, in actuality, they're mere newspaper editorials representing the personal opinions of only a couple of people rather than the consensus of the Convention. It seems to me there is no discernible real or precise original intent on any point of minutiae because the founders consciously and knowingly failed to provide us with a consensus about what they intended all the details to mean. Collectively, when delivering the document to Congress, the founders merely attested they agreed to the particular words which were used. They acknowledged that significant disagreements about the complete meaning still existed but, nevertheless, they implored the states to accept it because they didn't think anyone could do any better. As a result, the ink barely had time to dry before political factions emerged and began our long tradition of fighting over its meaning. There are some broad concepts we can find consensus on. For instance, the Convention unanimously endorsed the proposition that state sovereignty was significantly curtailed and federal powers over the states were significantly expanded under the document. However, they failed to clearly delineate the complete limits of that proposition. The later attempt to fix this with the 10th Amendment also failed to do this as it's likewise imprecise. Thus, we've had arguments over states' rights ever since. Despite their claims of applying any number of theories of Constitutional interpretation, Supreme Court justices are usually only applying the personal opinions they like best when they rule on a particular matter. While we may not like to think of it that way, in my opinion, that's just the way it is and, perhaps, we just have to do the best we can to live and work with it because, like our founders, I'm not sure we could do any better today either.
 
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