Wednesday, November 30, 2005

Original Intent: The Worst Way Except All the Other Ways?

Thank you for the birthday wishes. I had planned to take it easy this year--so much for my "original intent". Ha ha. Wow that sucked, even for a lawyer joke. Anyway, I agree with you about a lot of this, but draw different conclusions. I don't think outcome based judging is a healthy way to go about things either. But there are serious problems with Originalist thinking.

One, the Constitution is like the Bible--it means whatever you want it to mean (interesting that Antonin Scalia always knows exactly what God and the Founding Fathers were thinking). Two, a lot of people with a lot of differing ideas of what the Constitution "meant" converged in Philadelphia; consensus was an imaginary ideal from the onset. Three, how do you square a conservative judicial viewpoint with the civil rights movement? It appears self-evident that Alito & Co. would have voted with the majority in Plessy and dissented in Brown.

On one hand, what's the alternative to original intent? If the Constitution's not anchored in something, then it's meaningless. On the other, as soon as you admit that there's no one known correct interpretation, aren't you also admitting that conservatives could very well be wrong? Especially since the notion that liberal justices are somehow more likely to overturn legislatures is well documented rubbish. And it is, my friend, nothing short of dishonest to equate Scalia's quaint take on morality with that of the meaty middle of the bell curve of American populism.

Now, what of minority rights? Minority rights are the difference between pluralistic society and mob rule (and Republican leaders often sing their praises when lecturing other countries). There's a fine line between the democratic process and the tyranny of the majority.

Plus I don't think the 19th Amendment is a particularly illuminating example; as important as it was, it doesn't lend itself well to parallels. Woman's sufferage was an idea whose time had come. New Zealand led the charge and was soon followed by other successful western countries. America was simply keeping up with the times. Now, I'm not belittling the importance of Constitutional Amendments here, but the fates of other Amendments that the American public wasn't really ready to accept were markedly different. The 18th did wonders to help establish an Italian middle class, but was widely ridiculed (and ignored). And with the exception of turning corporations into human beings before the law, Amendments 13-15 didn't bear fruit until nearly a century after their inception.

Besides, do you really want a sodomy amendment, just so we can be clear that consenting adults can do as they please, whether or not they live among prudish fundamentalists? You're a conservative, would you be opposed to a privacy amendment? Would this be because it would infuriate social conservatives or because you genuinely don't think it is a good idea?

The religious right likes to do a little judicial ju-jitsu here, claiming that their rights are oppressed by a secular elite. One has to willfully ignore the distinction between public and private behavior to draw that conclusion. Although I do sense some compromise potential here--we'll allow religious symbols in public, but you have to allow sex in public.


PS- Concerned Alumni for Princeton? Troubling.


At Tue Nov 29, 11:36:00 PM GMT-5, Anonymous Anonymous said...

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