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> Any interpretive method that purports to “update the constitution with the times” almost by definition cannot be invoked to overturn democratically-legitimate

by krapp 1y ago

> Any interpretive method that purports to “update the constitution with the times” almost by definition cannot be invoked to overturn democratically-legitimated laws and executive actions. By what non-tautological definition? Of course it can, because that's the method the court already uses and has always used. That they cover their personal and political interpretation with the thin veneer of "originalism" doesn't matter - it doesn't really exist, it's a farce. Their decisions are obviously correct when you agree with the outcome and radical legislation from the bench when you don't. We need to stop pretending the courts at any level are any less partisan or political than any other branch of the government, and that requires disabusing ourselves of the premise that the Constitution was ever not a "living document" in practice.

rayiner 1y ago
>> Any interpretive method that purports to “update the constitution with the times” almost by definition cannot be invoked to overturn democratically-legitimated laws and executive actions. > By what non-tautological definition? The definitions invoked by proponents of "living constitutionalism." The steel-man version of their premise is that judges should interpret the constitution "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (Warren, J.). But courts rarely hear cases that involve social standards that have actually evolved. Nobody is challenging outdated adultery laws in the Supreme Court because the social standards have evolved and nobody is getting prosecuted under them. An honest version of "living constitutionalism" would be an extremely narrow principle, reserved for unusual cases where someone has taken action contrary to the accepted social consensus. > We need to stop pretending the courts at any level are any less partisan or political than any other branch of the government, and that requires disabusing ourselves of the premise that the Constitution was ever not a "living document" in practice. That's just an argument for drastically curtailing the jurisdiction of the courts! We already have two political branches. We don't need a third.

by krapp 1y ago

rayiner 1y ago

>> Any interpretive method that purports to “update the constitution with the times” almost by definition cannot be invoked to overturn democratically-legitimated laws and executive actions. > By what non-tautological definition? The definitions invoked by proponents of "living constitutionalism." The steel-man version of their premise is that judges should interpret the constitution "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (Warren, J.). But courts rarely hear cases that involve social standards that have actually evolved. Nobody is challenging outdated adultery laws in the Supreme Court because the social standards have evolved and nobody is getting prosecuted under them. An honest version of "living constitutionalism" would be an extremely narrow principle, reserved for unusual cases where someone has taken action contrary to the accepted social consensus. > We need to stop pretending the courts at any level are any less partisan or political than any other branch of the government, and that requires disabusing ourselves of the premise that the Constitution was ever not a "living document" in practice. That's just an argument for drastically curtailing the jurisdiction of the courts! We already have two political branches. We don't need a third.