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ETA: I feel like this comment was sort of combative and harsh. I'm not really sure how to ameliorate that, though, so I'm just going to prepend an apology and s

ETA: I feel like this comment was sort of combative and harsh. I'm not really sure how to ameliorate that, though, so I'm just going to prepend an apology and say thank you for being more polite than me beforehand. :P > If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option. But this is true of all jurisprudential theories, not only of originalism. That's why people campaign to get bills passed, but merely sit around and cross their fingers when court decisions are made. > the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc. to adhere to originalist intent. This is completely untrue: you're making up requirements in order to support originalism. It's like saying that houses are supposed to be tall and dot the landscape, and therefore should always be built aboveground. Originalism is an interpretative tradition like any other interpretative tradition. It doesn't have a special place. You can favor it, but that's a personal inclination, and not actually justified. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.... (Posner is one of judiciary voices calling for IP reform.) http://www.constitution.org/cons/prin_cons.htm http://www.constitution.org/cons/prin_cons.htm (Especially #17)

bmelton 13y ago
No worries on tone. I do my level best to always assume good faith, and temper that with the knowledge that smart, reasonable people often disagree very loudly. ;-) As for my statement on originalism, I don't believe it untrue, but I do believe it was poorly stated. The two basic schools of thought express the judiciary requirement to either pay heed to original intent or original meaning, with perhaps strict constructionism coloring either side of the equation. Regardless, I think that my intent remains true, which is that politicians too often disregard both the original meaning, the original intent, or any strict or loose construction of the Constitution in order to bend the Constitution, through verbal gymnastics, into abstractly supporting whatever thing it is that they want supported. In short, it is simply disregarded, and if a Constitutional challenge is posed, it is easily circumvented by hand-waving and word play. This, despite the primary job of the federal government (IMO at least) is to uphold the Constitution, and every member of the legislature, executive and judiciary having sworn an oath to uphold it.

bmelton 13y ago

No worries on tone. I do my level best to always assume good faith, and temper that with the knowledge that smart, reasonable people often disagree very loudly. ;-) As for my statement on originalism, I don't believe it untrue, but I do believe it was poorly stated. The two basic schools of thought express the judiciary requirement to either pay heed to original intent or original meaning, with perhaps strict constructionism coloring either side of the equation. Regardless, I think that my intent remains true, which is that politicians too often disregard both the original meaning, the original intent, or any strict or loose construction of the Constitution in order to bend the Constitution, through verbal gymnastics, into abstractly supporting whatever thing it is that they want supported. In short, it is simply disregarded, and if a Constitutional challenge is posed, it is easily circumvented by hand-waving and word play. This, despite the primary job of the federal government (IMO at least) is to uphold the Constitution, and every member of the legislature, executive and judiciary having sworn an oath to uphold it.