Comments on: The problem with constitutional originalism

By: Priya Lynn

Priya Lynn — Sat, 08 Jan 2011 14:49:05 +0000

Donny said “You can claim that it’s impossible to know what the framers and ratifiers of the Constitution intended, but as Eastside Jim said, there is a slew of documentation from those times that allows modern people to get a handle on what folks were thinking back then.”.

All that documentation may help explain some of what the U.S. constitution intended but I find it highly unlikely that it will explain it all.

Donny said “The inconsistency that I is see is that if you are against originalism (by which I mean legitimate originalism, not Scalia’s blatant misuse of history, law and logic), then you can’t also accept Judge Walker’s use of Proposition 8 campaign materials to determine that it was only possible to vote for the initiative out of prejudice.”.

That’s not a contradiction at all. It all has to be considered on a case by case basis. In some cases the external documentation may explain what people were thinking, in others it may not. The existence of additional documentation does not automatically mean all is clear every time.

By: Donny D.

Donny D. — Sat, 08 Jan 2011 14:35:55 +0000

I see an inconsistency in the position of the anti-Originalists here. You can claim that it’s impossible to know what the framers and ratifiers of the Constitution intended, but as Eastside Jim said, there is a slew of documentation from those times that allows modern people to get a handle on what folks were thinking back then.

The advantage we have in terms of recent legislation and initiatives is that courts can get spoken testimony and access to current forms of media. In this way, the original intent of campaigners and voters for California’s Proposition 8 was determined by Judge Walker in his decision against it.

The inconsistency that I is see is that if you are against originalism (by which I mean legitimate originalism, not Scalia’s blatant misuse of history, law and logic), then you can’t also accept Judge Walker’s use of Proposition 8 campaign materials to determine that it was only possible to vote for the initiative out of prejudice.

By: John

John — Fri, 07 Jan 2011 16:19:51 +0000

Just who gets to decide what the original intent of the writers of the Constitution? My understanding has always been that the intent was for the Constitution to be an evolving document, largely due to the fact that they made provision for amending it. I think they understood that this would be an evolving country and an evolving society and that the Constitution was not to be taken as written in stone. Nor do I believe they meant for the Constitution to be interpretable only by highly specialized lawyers.

By: Infovoyeur

Infovoyeur — Fri, 07 Jan 2011 01:21:53 +0000

Rationalizing (one’s prior, perhaps tacit) beliefs (and emotions) too often outshoves “reasoning.” A meta- or para-issue here is what are Scalia’s root reasons, prior pulsions, true motivations for his often-elliptical stands? Probably nothing more than what I label a (or the) “toxic strand” discernable here and there in “conservative” thought and maculating it. The syndrome is recently excellently illuminated by social psychologists in that landmark meta-analysis, “Political Conservatism as Motivated Social Cognition.” [But does Scalia even KNOW, what ultimately propels him?...] “Infovoyeur”

By: John B F

John B F — Fri, 07 Jan 2011 00:33:53 +0000

Tim-
I second (or third) that you submit this great piece to the NY Times. A breath of fresh air.

By: Lady Gaga

Lady Gaga — Thu, 06 Jan 2011 23:14:01 +0000

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By: Rob Lll

Rob Lll — Thu, 06 Jan 2011 21:22:42 +0000

Timothy,

Thanks for this eloquent and thoughtful post. Some great, astute comments in the thread here as well.

The men who framed and ratified the U.S. Constitution and subsequent amendments were far from perfect. But, to their credit, they *knew* this. They carefully chose broad language understanding they couldn’t possibly foresee every social or historical contingency that came down the pike. They knew there were things they didn’t or couldn’t know.

In this respect, they demonstrated a far greater degree of wisdom, self-awareness, and humility than Antonin Scalia will ever attain.

By: Priya Lynn

Priya Lynn — Thu, 06 Jan 2011 21:05:25 +0000

That’s what I said esurience.

By: esurience

esurience — Thu, 06 Jan 2011 20:51:58 +0000

With regard to the right to privacy, do remember the 9th amendment:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

It seems that amendment is often forgotten about. Just because a right is not explicitly listed in the Constitution, does not mean that we lack it. You have to remember what kind of government the founders were trying to set up, and who their influences were.

Personal autonomy and privacy are simply inherent in the kind of government the founders were trying to establish. It would be absurd to construe the constitution as denying the right to privacy.

By: EZam

EZam — Thu, 06 Jan 2011 19:35:23 +0000

Our defeat or success will depend on how many SCOTUSes share or reject Scalia’s interpretation.