Wednesday, November 16, 2005

What Original Intent means... to me, at least.

Though it appears at this point we have farmed out the Executive Traits line, I can't resist responding to the point about "if Hillary didn't care, why should we" to ask if that is intended to bait me (success) or a real statement of total moral relativism. If the former, I'll congratulate you on your ability to get me to once again restate that I think it is wrong to cheat on one's spouse.
However, if the latter, I'm not sure how to proceed. If we agree it is wrong to cheat on one's spouse, do we really not care when it is done? How is that different from a husband who beats his wife, but then says he only does it because he loves her, which his wife often supports? Surely the fact that one involves a bruise (or worse) and the other doesn't can't support a notion that they are inherently different things.
The only other conclusion I can come to is that you are positing a notion that (1) it's not wrong to cheat on your wife or less extremely (2) it's only wrong to her. While I recognize this as the same line of logic that argues that prostitution shouldn't be illegal because if the prostitute enters the trade willingly, it is a victimless crime, I can't accept it. Moral relativism may be desireable in some places, but surely we can agree that a difference of "opinion" is unacceptable on certain topics.
For instance, I don't believe killing is always wrong. After all, I believe war is sometimes necessary and I support capital punishment. I'm prepared to accept that some, or even many, do not agree with me that this justifies killing. But surely we can all get on board that killing another for no reason, or for money, is wrong. Period. My view of betrayal is the same.


Having exhausted that topic, I'm eager to move onto the more firm ground of judicial appointments, and talk about how "far right intellectual activists" have dreamed up this concept of original intent. To begin, I will readily identify myself as a conservative intellectual, and hopefully one of the "brighter third". Either way, I will also out myself as one who believes in original intent. However, I think the concept deserves some discussion before it is offhandedly dismissed.
To me, and I can only speak personally, Original Intent means that judges should engage in dialogue/thinking about the principles which underlied the Founding. Contrary to popular belief, this does not necessarily mean that simply because the Framers did not include blogging in the First Amendment, that blogging should not be entitled to First Amendment protection. But it does mean understanding that the Framers meant the First Amendment to apply to more than just prior restraint, and specifically meant it to apply to avenues of inherently political (as opposed to commercial) speech. As such, as blogging challenges the MSM as a way of reporting on the way in which the country is governed, it is and should be due full 1st Amendment protection.
Secondly, Original Intent means that judges should respect that while a particular outcome may be desireable, that does not always give them the authority to determine it is. Judges must respect that the Framers actually came up with a way to amend the Constitution to allow the People as a whole to engage in dialogue about major, Constitutional issues, and have their voices be heard on the subject. As a for instance, when the women's sufferage movement began to gain steam, they didn't pursue it in the courts under some equal protection understanding. Instead, they pursued the Amendment process, and the result was the 19th Amendment. I'd argue that as a result, they were able to avoid the kind of retrenchment and outright opposition that has been the result when similar debates have been mandated by the Supreme Court.
This last point, more than any other, emphasizes why we far-right crazies so respect original intent. In a weird way, it is because we trust the democratic process to deal with big picture issues, like abortion or affirmative action, which are more readily understandable by the population at large. When courts usurp those types of decisions, they deny the American people a chance to engage in the truly great social debates which marked other major reform movements. More importantly, they engender opposition to what is correctly viewed as a decision by un-elected elites.
This obviously leaves open the question of what exactly was the Original Intent? But that is how it should be -- better a debate about the principles which underlie our identity as a nation that arguing over whether or not something is a "super-precedent".

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