4 ms·

That all seems reasonable, though "living Constitution" sounds a bit silly to my ear—if that's used by advocates they should find a better name. On the other ha

by gruseom 13y ago

That all seems reasonable, though "living Constitution" sounds a bit silly to my ear—if that's used by advocates they should find a better name. On the other hand, the originalist thing seems flat-out dumb if it tries to deny that interpretations of past texts are always filtered through the present. One might as well exhume the authors and look for clues in their remains. But never mind that—I'm more curious about this: Otherwise, it becomes a tool for peddling minority social viewpoints, which undermines its legitimacy in other regards. We're already feeling the effects of that today. What minority social viewpoints and what effects?

rayiner 13y ago
> On the other hand, the originalist thing seems flat-out dumb if it tries to deny that interpretations of past texts are always filtered through the present. There is nothing all that silly about it. It simply interprets the Constitution in the way you would a contract--based on what the parties intended the document to mean at the time of the agreement. > What minority social viewpoints and what effects? The death penalty would be a good example. Right now, support for the death penalty is around 60% among the American public. If a Supreme Court came along and found that "the living Constitution" meant that the death penalty was unconstitutional, despite the death penalty being common at the time of the founding and also supported by a majority of the public, that would undermine peoples' faith in the Constitution and the Supreme Court as an actual common agreed-upon framework as opposed to just another political tool. Sometimes the Supreme Court has to spend that political capital, to bootstrap social change, but even when the decision is "right" in retrospect, it has an injurious effect on the institution itself. E.g. it becomes a lot easier for conservatives to dismiss the Supreme Court's opinion on something like giving Guantanamo prisoners habeas corpus rights when they can point to something like Roe v. Wade as evidence of the Court's political nature. It isn't just conservatives, of course. The Court lost enormous credibility among liberals in the 1920's and 1930's when it found all sorts of "economic rights" in the due process clause to strike down FDR's popular policies. At this moment in history, faith in the Constitution and the Supreme Court is at historical lows on both sides, as a result of decades of liberal Courts using the bench as an instrument for social change on issues where there was no clear-cut consensus. Now, I happen to agree with those specific social issues, but that doesn't change the fact that this change came at high cost to the Court itself. Originalism has a major advantage, and it is that when the Court isn't constantly finding new things in the Constitution, it can speak with far more authority on issues that were part of the original intent of the founders.
- gruseom 13y ago
  That is very interesting. Thanks!
- clicks 13y ago
  > There is nothing all that silly about it. It simply interprets the Constitution in the way you would a contract--based on what the parties intended the document to mean at the time of the agreement. For contracts relating to small situations that would make sense, but for a piece of writing that is meant to apply to a whole country written by a few old men centuries ago is that really the most prudent choice? We know so much more than they did -- e.g. science now tells us that we can actually quantify pain (both physical and emotional) with remarkable accuracy [1]. With the understanding and new knowledge that has become available in recent time it's likely that the founders would have had a totally different take on things, so I see slow and small nitpicky rectifications on minor points to be misguided in numerous respects since for all one knows founders' approach to several issues would have been altogether different if they had access to the abundant new findings and data that has only become available recently. I'll give you an example: before I started getting into John Rawls writings, some contemporary philosophy (a lot of Sam Harris stuff), some writings on determinism, I was a libertarian. It was my access to new knowledge that informed my world view with a new and more scientifically rigorous take on things. [1]: http://www.popsci.com/science/article/2013-04/brain-scans-offer-super-accurate-measure-burning-pain http://www.popsci.com/science/article/2013-04/brain-scans-of...

by gruseom 13y ago

rayiner 13y ago

> On the other hand, the originalist thing seems flat-out dumb if it tries to deny that interpretations of past texts are always filtered through the present. There is nothing all that silly about it. It simply interprets the Constitution in the way you would a contract--based on what the parties intended the document to mean at the time of the agreement. > What minority social viewpoints and what effects? The death penalty would be a good example. Right now, support for the death penalty is around 60% among the American public. If a Supreme Court came along and found that "the living Constitution" meant that the death penalty was unconstitutional, despite the death penalty being common at the time of the founding and also supported by a majority of the public, that would undermine peoples' faith in the Constitution and the Supreme Court as an actual common agreed-upon framework as opposed to just another political tool. Sometimes the Supreme Court has to spend that political capital, to bootstrap social change, but even when the decision is "right" in retrospect, it has an injurious effect on the institution itself. E.g. it becomes a lot easier for conservatives to dismiss the Supreme Court's opinion on something like giving Guantanamo prisoners habeas corpus rights when they can point to something like Roe v. Wade as evidence of the Court's political nature. It isn't just conservatives, of course. The Court lost enormous credibility among liberals in the 1920's and 1930's when it found all sorts of "economic rights" in the due process clause to strike down FDR's popular policies. At this moment in history, faith in the Constitution and the Supreme Court is at historical lows on both sides, as a result of decades of liberal Courts using the bench as an instrument for social change on issues where there was no clear-cut consensus. Now, I happen to agree with those specific social issues, but that doesn't change the fact that this change came at high cost to the Court itself. Originalism has a major advantage, and it is that when the Court isn't constantly finding new things in the Constitution, it can speak with far more authority on issues that were part of the original intent of the founders.

gruseom 13y ago
That is very interesting. Thanks!
clicks 13y ago
> There is nothing all that silly about it. It simply interprets the Constitution in the way you would a contract--based on what the parties intended the document to mean at the time of the agreement. For contracts relating to small situations that would make sense, but for a piece of writing that is meant to apply to a whole country written by a few old men centuries ago is that really the most prudent choice? We know so much more than they did -- e.g. science now tells us that we can actually quantify pain (both physical and emotional) with remarkable accuracy [1]. With the understanding and new knowledge that has become available in recent time it's likely that the founders would have had a totally different take on things, so I see slow and small nitpicky rectifications on minor points to be misguided in numerous respects since for all one knows founders' approach to several issues would have been altogether different if they had access to the abundant new findings and data that has only become available recently. I'll give you an example: before I started getting into John Rawls writings, some contemporary philosophy (a lot of Sam Harris stuff), some writings on determinism, I was a libertarian. It was my access to new knowledge that informed my world view with a new and more scientifically rigorous take on things. [1]: http://www.popsci.com/science/article/2013-04/brain-scans-offer-super-accurate-measure-burning-pain http://www.popsci.com/science/article/2013-04/brain-scans-of...