"We would have liked to hear her boldly defend the idea of the Constitution as a living document, one that changes with the times."

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Were last week's confirmation hearings for Supreme Court nominee Sonia Sotomayor a squandered opportunity for the left? The New York Times thinks so:

At times, she too willingly ceded ground to her conservative questioners. We wish she had spoken out forthrightly in favor of empathy, a quality President Obama has said he is looking for in his judicial nominees. We would have liked to hear her boldly defend the idea of the Constitution as a living document, one that changes with the times. And we would have preferred if she had used the hearings to explain to the public that the much-mentioned distinction between judges making and applying the law has little meaning.

Not exactly a ringing endorsement, is it? For a more useful take on where the Sotomayor confirmation fell flat, don't miss Radley Balko on how nobody at the hearings was interested in talking about criminal justice or the rights of the accused.

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  1. We would have liked to hear her boldly defend the idea of the Constitution as a living document, one that changes with the times.

    They wanted her to fail.

  2. That’s either sloppy writing by the Times, or its editorial views are really out there regarding the meaning of the Constitution. I like to think that “originalism” and “strict construction” are the right ways to approach reading the Constitution, but I can understand arguments that certain terms within the Constitution are deliberately imprecise (like “cruel and unusual”) such that their meaning may change over time. That’s not an argument that the document “changes with the times,” but rather that the document itself allows for societal changes to affect the original meaning.

    The Times’s statement seems to be consistent with the conservative caricature of the paper’s position — that the Constitution “means” whatever 5 justices decide it means at any one point in time.

  3. The Constitution isn’t some nebulous document that can mean anything based on the time. I think there are clauses which are imprecise that may be interpreted that way, like Jonny said. But this idiotic idea that the Founding Fathers wrote “the right of the people to keep and bear arms shall not be infringed” could be interpreted differently based on the time.

    Some of the language was pretty damn precise after all.

  4. The 2nd amendment is hardly the example I’d use to illustrate precise language in the constitution.

  5. It’s a toss-up between who is more pathetic; her or the Times.

  6. The NYT criticism is the most positive thing I’ve heard about Sotomayor.

  7. The hearings were disappointing but hardly a surprise. Her job was to get confirmed without starting a mindless media circus about something. Yeah, I’d like for the role of the courts to be defined by something other than Federalist Society talking points once in a while, and not just because those talking points are so egregiously dishonest.

  8. The 2nd amendment is hardly the example I’d use to illustrate precise language in the constitution.

    Why? Trouble with prefatory and operative clauses? Even my mildly retarded redneck brain comprehends the idea.

  9. “changes with the times”

    Yeah, liberty, individual rights and the rule of law are so, like, from the 18th century, you know? We have wise latina women now.

  10. “The 2nd amendment is hardly the example I’d use to illustrate precise language in the constitution.”

    ….the right of the people to keep and bear Arms, shall not be infringed.

    Pretty simple really.

  11. I suppose most Times readers really do think that a “living Constitution” is what people want if only the case were made. Afterall, everyone they know beleives as much.

  12. It’s a toss-up between who is more pathetic; her or the Times.

    The Times is definitely more pathetic, hands down.

    But at least writers for the Times most likely know that the phrase is “imminent threat” and not “eminent threat”.

  13. The 2nd amendment is hardly the example I’d use to illustrate precise language in the constitution.

    Are you stupid?

    Also: shut the fuck up, New York Times.

  14. But at least writers for the Times most likely know that the phrase is “imminent threat” and not “eminent threat”.

    The copy editors do. The writers don’t.

  15. “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”

  16. ….the right of the people to keep and bear Arms, shall not be infringed.

    Pretty simple really.

    Yeah it is pretty simple when you replace the first clause of the amendment with ellipses in order to ignore it. Any language that takes centuries to interpret is not what I’d hold up as an example of the constitution’s precise language.

  17. Tony – first of all, I doubt that what you know about constitutional or statutory interpretation could fill a thimble. In what way are the Federalist Society’s ideas about constitutional jurisprudence dishonest or wrong? Keep in mind I’m in both the Federalist Society and the ACLU, so you better come packing heat, little man.

    Secondly, do you know how to read statutes? Given that “the right of the people to keep and bear arms, shall not be infringed” is in parii materia with a number of other Amendments where “the people” clearly meant “individuals”, what about the interpretation “the right of individuals to keep…” is not clear or obvious to you? Show your work.

  18. We would have liked to hear her boldly defend the idea of the Constitution as a living document, one that changes with the times.

    For the benefit of the board, I speak fluent Bullshit, so allow me to translate:

    We believe the Constitution means whatever five liberal justices say it means– like the good old days. The Constitution ceases to be a living document when conservative justices are in the majority.

    Any language that takes centuries to interpret is not what I’d hold up as an example of the constitution’s precise language.

    Tony, it didn’t take centuries to interpret it. Hell, it was only written a little over two centuries ago. No for most of the first century and a half, it was pretty well understood that the people had a right to bear arms. Only when we (The New York Times) decided it was a Llllllllllllllllllllliiiiiiiving document… weeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee! did the meaning come into question.

    I have to give liberals credit though, I really do. Who’d have thunk they’d also reinterpret the first amendment? I mean, what a dumbass I was. During my formative years, I always gave those kooky kids with the ponytails and tie-dyes the credit for being the keepers of the First. Remember the 2-Live Crew thing in the 80’s? Yeah, I do too. Can’t ban any speech because it might slide toward banning political speech. Man, times a’change, don’t they Tony?

  19. “Yeah it is pretty simple when you replace the first clause of the amendment with ellipses in order to ignore it.”

    How about this version as originally read at the 1st Congress in the House of Representatives by James Madison:
    “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

    It was changed and modified before the final version was approved but reviewing supporting documents and speeches of the time, there is little doubt as to intent.

  20. I once again repeat my observation: The Angry Optimist is a stupid, foul-mouthed douchebag with such little intelligence that he has to replace argument with insult. I have never once seen him make an argument without attacking someone.

    You, sir, are a piece of shit, and may you soon realize that nobody cares what you think.

  21. Since most of the federal government is clearly not authorized by the constitution, but they favor even more of it, the Times editorial staff is in a difficult position. They either have to admit that the existence of most of the government is unconstitutional, or spout the popular “living document” bullcrap.

  22. Of course, I just re-read his last post and found this interesting tidbit: he’s in “both the Federalist Society and the ACLU.”

    Ah! So he’s either a lawyer or a law student, probably the latter, which explains the overblown sense of ego and importance as well as his undying conviction that the world hinges on every word he speaks.

  23. such little intelligence

    Is it only joe’s law if you misspell an attack on someone’s grammar, or does intelligence count? Also, is it still joe’s law?

  24. and like I told you, Fred, I politely invite you to die in a fire. if you don’t like my style, there’s a scroll button. Other than that, piss off.

  25. It’s always nice when Fred brings his civil and rational arguments to the table. Well done, Fred.

  26. Also, I’m really glad that reason doesn’t moderate the comments, because that would be coercive, whereas allowing insults and defamation to occur is real freedom and not at all coercive or violative of anyone else’s rights to have free, unimpeded discourse.

  27. No, no, Mr. Optimist — if you want to dish insults, you’d better take them. Otherwise, learn to make an argument without insulting people.

    But don’t worry…once you get out of law school, you will have decades of being talked down to and plenty of people to show you just how stupid and full of shit you really are.

  28. Zeb — fuck off. I’ll stop insulting Mr. Optimist when he stops insulting everyone else.

  29. I’m not about to get into a debate about the meaning of the 2nd amendment. For the record I do think its intent is to allow individuals to be armed (but not for the purpose of individual self-defense). The only point I’ve made is that it’s not the best example to hold up when expressing the opinion that the document is rigidly precise in its language and that every right-thinking person will automatically come to the same interpretation of it.

    But I actually take back what I said earlier: even the final clause is not crystal clear, since both “the people” and “arms” are vague terms when taken outside of historical jurisprudential context.

    In what way are the Federalist Society’s ideas about constitutional jurisprudence dishonest or wrong?

    The whole idea of “originalism” is dishonest, not to say arrogant. As if Scalia alone has a psychic connection with James Madison. It’s one thing to have an agenda and interpret the constitution to align with it; the dishonesty comes by trying to shut down the conversation by claiming your agenda just happens to be in line with *the* interpretation, which implies that alternative interpretations are radical or downright heretical.

  30. Yeah it is pretty simple when you replace the first clause of the amendment with ellipses in order to ignore it. Any language that takes centuries to interpret is not what I’d hold up as an example of the constitution’s precise language.

    I figured this out when I was 20ish. If it takes centuries either I’m a genius or you’re a lot of people are retarded. (hint: I’m no genius)

    Or maybe it has been interpreted for centuries when it really shouldn’t have been for political purposes. Just maybe.

  31. For the record I do think its intent is to allow individuals to be armed (but not for the purpose of individual self-defense).

    Failure. The intent is neither implicitly or explicitly stated. (see interpretation comment)

    Any intent you attempt to apply is your interpretation.

  32. Yeah it is pretty simple when you replace the first clause of the amendment with ellipses in order to ignore it. Any language that takes centuries to interpret is not what I’d hold up as an example of the constitution’s precise language.

    Ok, so how about this? How bloody hard is this to figure out?

    The liberty to express oneself freely without censorship being essential to public liberty, the Congress shall pass no law abridging freedom of speech.

    Oh yeah, so fucking hard to figure out. Only if you’re like many lawyers and predisposed to reading the English language with weasely intent to make it mean whatever your argument wants it to mean.

  33. I’m not about to get into a debate about the meaning of the 2nd amendment. For the record I do think its intent is to allow individuals to be armed (but not for the purpose of individual self-defense). The only point I’ve made is that it’s not the best example to hold up when expressing the opinion that the document is rigidly precise in its language and that every right-thinking person will automatically come to the same interpretation of it.

    You’re absolutely right. People who have at best a conversational proficiency in English, but who are otherwise right-thinking people, might get confused. For native speakers, there is no excuse.

  34. The Constitution can, in fact, change with the times. There are these things called “amendments”, which can be proposed and voted upon. If passed, these “amendments” actually change the Constitution so that it is different than it was! Those Founding Fathers thought of damn near everything!

  35. Fred,

    TAO and I argue all the time without resorting to insults, even on hot-button flamewar topics like abortion.

    Tony is a griefer who constantly lies as a form of argument. Insulting him is all he deserves. If you don’t like how we use social ostracism to police bad faith on the boards, you can leave.

  36. The whole idea of “originalism” is dishonest, not to say arrogant.

    the dishonesty comes by trying to shut down the conversation by claiming your agenda just happens to be in line with *the* interpretation

    oh ho ho – do you think that this what “other” schools of interpretation try to do as well, or do they state that “Originalism and dynamic interpretation theory are simultaneously correct”?

    Come on now: all modes of interpretation believe that they have a “lock” on the proper interpretation, otherwise they wouldn’t interpret it that way. For you to single out originalism tells me about YOUR bias.

  37. Libertarians are a funny lot. The arrogance and condescension with which you hold your beliefs to be so obvious and true is matched only by the massive extent to which people don’t believe in them.

  38. No, no, Mr. Optimist — if you want to dish insults, you’d better take them.

    Et tu, Fred. Now piss off, tiny stuff. The adults are speaking.

  39. The whole idea of “originalism” is dishonest, not to say arrogant

    The thought processes aren’t too difficult to figure out. Even for laymen with a little free time. There are clues and consistencies and logical progression throughout.

    4th-the people (broadest sense, everyone)
    5th-the person (the individual, single man)
    6th-the accused (the accused, a man in conflict with government)

    Do you see the process. From everyone to the man accused. A narrowing of governments authority starting with all people to the most finite, the man accused of a crime by government. If you take it a step farther you can notice it goes from everyone’s property to the individual about to forfeit his property. Those guys were so smart.

    Originalism has its political statists and others looking to abuse the document just like the living document and progressive people.

  40. Reason’s own Steve Chapman mentioned on Jezebel.

    And it features an amazing feminist logic fail. Can you spot it?

  41. “We would have liked to hear her boldly defend the idea of the Constitution as a living document, one that changes with the times.”

    Just like it changed in the 1890s to permit separate but equal accommodations…and wasn’t it great how the living and breathing document changed with the times in the 1850s to deem black people not to be citizens..and again in the 1940s when the document changed to allow the consigning of Japanese Americans to concentration camps. Yes, let’s boldly defend the living and breathing Constitution! Who needs timeless principles?

    And while we’re at it. maybe that pesky clause about freedom of the press can change. I’m sure the Times editorial board will be all for that.

  42. The arrogance and condescension with which you hold your beliefs to be so obvious and true is matched only by the massive extent to which people don’t believe in them.

    Diagram that sentence. NOW.

  43. Shut the fuck up, Tony.

    NLNT. NLNT.

  44. TAO,

    What bullshit. Originalism comes with a set of interpretations bound by the nature of originalism: they can’t be altered or questioned.

    The idea that the constitution is dynamic necessarily means that it can’t be interpreted dogmatically.

  45. “Yeah it is pretty simple when you replace the first clause of the amendment with ellipses in order to ignore it. Any language that takes centuries to interpret is not what I’d hold up as an example of the constitution’s precise language.”

    Try this one:

    Attendance by the economically and culturally disadvantaged, being necessary to allow this institution to most fully serve its social purpose, no price of admission shall be charged for entry to the museum.

    Does this mean that any admission price can be charged, ever? Only if we know you can afford it? Only if you are not deemed “economically [or] culturally disadvantaged”? Only if you don’t agree with or, or your attendance serves to thwart the institution’s “social purpose” (whatever that might be)?

  46. Tony – let’s suppose that you believe in dynamic interpretation. Doesn’t that mean that you believe that originalism should be excluded from the constellation of interpretive schools?

    Sorry, but for you to single out originalism for having a set of bound interpretations, you need to take a look in the mirror, because adherents of any one school if interpretation necessarily bring a set of tenets to the table. You say that originalism is dogmatic; I say dynamism is unprincipled. But you only have a problem with the latter statement.

  47. “Yeah it is pretty simple when you replace the first clause of the amendment with ellipses in order to ignore it. Any language that takes centuries to interpret is not what I’d hold up as an example of the constitution’s precise language.”

    Shut the Fuck Up, Tony

  48. If a constitution isn’t dogmatic, what’s the point of having one?

    SugarFree, Tony’s not a griefer. He’s just a step below joe. Lonewacko, now, is a griefer.

  49. The Times should be happy that Sotomayer thinks that the Constitution intends for abortion rights to be incorporated as the law of the land, yet gun rights are only incorporated in the District of Columbia.

  50. For the record I do think its intent is to allow individuals to be armed (but not for the purpose of individual self-defense).

    So, I can have a gun, but if I’m attacked, I can’t use it to defend myself?

    WTF?

  51. Warty,

    I consider the constant bad faith he exhibits to be griefing. Just like his pal Chad, who has explicitly stated he comes here only to annoy us. joe, for all his faults and gross personality defects, at least had a handful of libertarian issues that he agreed with the bulk of the board on. Tony and Chad only show up to whine and lie and call us all crypto-Republicans.

  52. # Spartacus | July 21, 2009, 4:25pm | #

    # The Constitution can, in fact, change with
    # the times. There are these things called
    # “amendments”, which can be proposed and
    # voted upon. If passed, these “amendments”
    # actually change the Constitution so that it
    # is different than it was!

    Yes. This is the ONLY way I can see that the Constitution could ever reasonably be called a “living document.”

    What good is a written Constitution, if not to draw clear, sharp lines, beyond which government has no authority to pass?

    A document that changes its meaning with each new generation of interpreters is fit only as a prop for bamboozling and intimidating the rubes. And of course, that is certainly how the Constitution has been (ab)used in recent times.

  53. So, I can have a gun, but if I’m attacked, I can’t use it to defend myself?

    He’s probably using the old left trope that the militia part means that only the National Guard can have guns.

    The only wiggle room in the 2nd was left there out of the touching naivety of The Framers. They never imagined a movement intent on disarming people of hunting and personal defense weapons would come along and so grossly distort the notion of human rights.

  54. He’s just a step below joe.

    I am second to no one in my disdain for joe, but that, my friend, is an insult to the man from Lowell.

  55. What good is a written Constitution, if not to draw clear, sharp lines, beyond which government has no authority to pass?

    You shall not paaaaa

  56. guys, please, j** is gone. Stop mentioning him.

    Or….DRINK!

  57. Who says I’m not?

  58. TAO,

    I’m not condemning the interpretations that so-called originalists come to, though I often disagree with them. I’m simply condemning their dishonest claim to being the holders of the sacred, obvious original meaning.

    For all I care, interpret the 2nd amendment to mean you have the right to hang dismembered ursine appendages on your wall. Just don’t tell me it’s what Jefferson believed and any alternative interpretation is illegitimate on the grounds that you have special psychic access to the intent of people long dead.

  59. The man from Lowell deserves all the insults he gets, X. Yo, fuck him.

  60. “Tony is a griefer who constantly lies as a form of argument. Insulting him is all he deserves. If you don’t like how we use social ostracism to police bad faith on the boards, you can leave.”

    STFU, Tony!

  61. “go ahead and play Harry-butthole-pussy Potter!”

  62. I was struck by how weak kneed Sotomayor was towards the conservative senators. It was a marked contrast to how boldly she described her philosophy at liberal gatherings. Her tendency to flip flop to please what ever authority she is standing in front of worries me.

  63. Why so tense, TAO?

  64. Nobody has asked about Article 1 Section 10, “No state shall… make any thing but gold and silver a tender in payment of debts”… Not even Reason!

    This IS the issue of the day.

  65. Just don’t tell me it’s what Jefferson believed and any alternative interpretation is illegitimate on the grounds that you have special psychic access to the intent of people long dead.

    If only Thomas Jefferson had left some writings one the subject. Alas!

    I take it back, SugarFree. Shut the fuck up, Tony.

  66. I’m simply condemning their dishonest claim to being the holders of the sacred, obvious original meaning.

    Again, Tony, for the love of God, you think that you have the lone obvious original meaning. If you don’t, why do you believe it?

    Even so, how is it bad to state that your meaning the meaning held by the Founders? Why do you think that’s a bad, “dishonest” thing to say?

    you’re floundering and you know it.

  67. STFU, Tony!

    I was trying to have a little class…

  68. So did the Framers carry guns? Did they carry them while in DC? Is there any record of that?

  69. CD, if you have a point…

  70. “I was trying to have a little class…”

    How about a Tony & Chad story?

  71. “For all I care, interpret the 2nd amendment to mean you have the right to hang dismembered ursine appendages on your wall.”

    The right to bear-arms, you mean. Well, we’ll see about that, after we pass the amendment that recognizes the right to arm bears. Laugh while you can, monkey boy! Ursine Americans are awakening from their long hibernation and will no longer be the trophies over your mantels or the rugs under your feet! They shall have your pick-a-nick baskets for their own!

  72. Of course the point is that many of the most radical reinterpretations of constitutional law have come from the “originalist” wing of the court. All I’m saying is it’s a dishonest bit of rhetorical self-congratulations for the Scalia wing’s ideas about what the constitution means. Unnecessary if not orwellian.

  73. “CD, if you have a point…”

    Just poking you some, that’s all. ;0)

  74. Tony = Anal Chatter.

  75. Of course the point is that many of the most radical reinterpretations of constitutional law have come from the “originalist” wing of the court.

    Like what? Please cite.

    All I’m saying is it’s a dishonest bit of rhetorical self-congratulations for the Scalia wing’s ideas about what the constitution means.

    This is what you said originally:

    I’d like for the role of the courts to be defined by something other than Federalist Society talking points once in a while, and not just because those talking points are so egregiously dishonest.

    So, again, what is so ‘egregiously dishonest’ about originalism? The fact that adherents of that school think they are right? how is that dishonest?

  76. Again, Tony, for the love of God, you think that you have the lone obvious original meaning. If you don’t, why do you believe it?

    I’m just a lowly english major, I don’t have a personal constitutional interpretation. The only opinion on it I’m expressing is that it’s occasionally open to interpretation.

    Besides the fact that it’s plainly open to interpretation, otherwise there’d be no need for the supreme court, this is not because I have an agenda into which I want to squeeze the constitution. It’s because phrases such as “just compensation” and “cruel and unusual” are plainly open to interpretation, and I believe it makes some sense for the founders to have been purposefully vague on certain topics in order for the constitution to survive evolving social mores and values.

  77. …and technologies and social circumstances.

  78. Of course the point is that many of the most radical reinterpretations of constitutional law have come from the “originalist” wing of the court.

    And many have come from the progressive side and other sides. Maybe the problem is the interpretation and not the who?

  79. Besides the fact that it’s plainly open to interpretation, otherwise there’d be no need for the supreme court, this is not because I have an agenda into which I want to squeeze the constitution. It’s because phrases such as “just compensation” and “cruel and unusual” are plainly open to interpretation

    Oh zounds, so you’ve been yammering on about originalism without any vague notion of what that means. Originalism (either intent or meaning) is an interpretive school and is not “an answer into and of itself”. Go READ something, Tony. Start at Wikipedia and don’t just take marching orders from the Left. God, you and talk about right-wing lockstepping, and here you are thundering on about originalism and you think it means that there’s no interpretation to be done.

  80. oh yeah, and again:

    Of course the point is that many of the most radical reinterpretations of constitutional law have come from the “originalist” wing of the court

    CITATION. NEEDED.

  81. Who was it that said to be immediately wary of anyone starting a sentence with the words “Of course”?

    Oh, and Tony,

    The arrogance and condescension with which you hold your beliefs to be so obvious and true is matched only by the massive extent to which people don’t believe in them.

    Libertarians or Lefties? You decide.

  82. And many have come from the progressive side and other sides. Maybe the problem is the interpretation and not the who?

    Again, my beef is not with what interpretations are made, or even how radical they are, just with the claim that some interpretations have an extra sheen of legitimacy because Scalia says so.

  83. Tony, I don’t think that originalists believe that certain interpretations are legitimate because of something that Scalia says. I think they believe that certain interpretations are legitimate because of what the Constitution itself says, or because of what the founders thought it meant (as established by historical records and documents).

  84. How is it you guys are capable of reading Tony’s posts. Ya’ll have all the time in the world or something?

  85. Jonny,

    But every jurist believes that. Only originalists claim an extra strong connection with founders’ intent no matter how radical their rulings actually are. I see no evidence whatsoever that the Scalia wing adheres more completely to the original language or its authors’ philosophical underpinnings.

  86. tony – for the third time, cite the “radical” decisions you’re talking about.

    and, again, originalists claim that they have the correct, original meaning. how is that dishonest?

  87. you have one hour and three requests for these “radical” decisions, Tony. I am sure you’re frantically googling, but I already consider you a loser, so stop wasting your time.

  88. But Tony, of course Originalists think that they know what the Founders intended. That’s the whole point of being an “Originalist.”

    You can say that they’re mistaken, or lying, or whatever, but I don’t understand how you can find fault with them for believing exactly in the manner their philosophy demands.

    That’s like complaining that “living Constitution” adherents are full of shit because they think that the meaning of the document changes over time. It’s a criticism without any substance, because it simply re-states the obvious.

  89. 1. I would support a Tony & Chad fanfic.

    2. Tony, you just said you were an english major… so I’m going to assume you like reading.

    I suggest you go read The Federalist Papers, Common Sense (the Thomas Paine version), Letters on England by Voltaire, Persian Letters by Montesquieu, and for narrative spice, 1776 by David McCullough… then dig a little deeper and read through some of the correspondence between Jefferson, Madison, Franklin & others…

    The “interpretation” of the Constitution isn’t hard to ascertain, especially the Bill of Rights.

    The second amendment wasn’t for hunting, and it wasn’t for starting an Army. It was in part a response to the British Army attacking civilians who’s guns had been forcibly taken away from them by British decree.

  90. The thing is Tony, you may not agree with the interpretations of the “Originalists” (and i’m not talking about Scalia specifically here), but there ARE historical records available that make the Founders’ positions quite clear – especially those of Madison, Jefferson & George Mason who wrote the damn thing to begin with.

  91. I would *love* to see citations to the originalists who said that their method automatically solved every problem of constitutional interpretation and gave them a special pipeline into the minds of the Founders.

    There is some difference between the ‘original intent’ folks, who focus on what the people who *wrote* the Constitution were thinking, and the ‘original understanding’ folks, who focus (more sensibly) on how the public understood the various constitutional clauses at the time they were adopted.

    Now, guess what – some questions still remain tough, even if we’re sincerely trying to find the original understanding. Is the Internet part of the ‘press’ under the First Amendment? What constitutes a ‘case at common law’ for purposes of the Seventh Amendment? How far can Congress go to regulate commerce among the states? There is no magical crystal ball which automatically tells us. And, surprisingly enough, originalists don’t claim to have found such a crystal ball.

    But some questions which, to the non-originalists, are deemed open, are considered pretty well answered by the originalists. Does the Eighth Amendment categorically ban capital punishment? Originalists say no, pointing to the text, structure and history of the Constitution. . Non-originalists are split – some saying the death penalty always violates the Constitution’s alleged ‘human dignity’ principle, others saying it doesn’t always do so.

    If you can show me, chapter and verse, which originalists have said that they have a pipeline to James Madison, or (somewhat contradicting the first claim) that Justice Scalia is an infallible guide to the Constitution, just let me know and I will try to set those folks right.

  92. And come to think of it, I suppose there would be a non-originalist argument that the Constitution *requires* the death penalty for all convicted murderers. After all, if the accepted understanding of the Constitution is too constraining, then why not just pick and choose – hmm, the Constitution declares its purposes include to ‘establish justice,’ and of course, anyone who truly *believes* in fairness and justice will have to be a Kantian retributivist, so therefore only death is an acceptable punishment for murder, and any attempt to impose a lighter sentence violates due process and equal protection. Anyone who disagrees is simply wallowing in medieval sentimentalism.

  93. When I say a word, it means what I choose it to mean. I apply the same policy to the words in the constitution.

  94. So the NY Times editors wanted her to prove beyond a shadow of a doubt that she is completely unfit to be involved with the courts on any level in any capacity above janitorial services?

  95. Isn’t it kinda dopey to get all in a twist about the answers offered by a Supreme Court nominee? No one — from the Right or Left — is ever again going to give a totally open and honest accounting of their legal opinions. It’d be career suicide.

    If Sotomayor had given answers satisfactory to the asshats at the NYT, she’d be a nothing more than a footnote in American history by the end of the month.

  96. Scott Ross-

    What makes you sure that she would be nothing more thatn a footnote in AMerican history by the end of the month if she had given a totally open and honest account of her legal opinions?

    Do you really think that she would not have made it out of the judiciary committee?

    Assuming that she got the green light from the judiciary committee, do you think that a dozen or more democrats would vote no?

  97. Do you really think that she would not have made it out of the judiciary committee?

    Assuming that she got the green light from the judiciary committee, do you think that a dozen or more democrats would vote no?

    If she gave the answers the New York Times wanted her to give, for instance, a draconian, anti-individualist interpretation of the Second Amendment, Democrat Senators in Southern and Mid-Western States like Kay Hagen and Russ Feingold would have had to vote not to confirm. I’m not the first to say this, but the point is illustrative, the campaign commercials write themselves.

  98. The Constitution does not fucking evolve.

    Do you see it evolving? No you do not. It sits under a glass case and has the same fucking words it has had for two centuries.

    We have a process by which the Constition can evolve. It’s called “amending the Constitution.” It’s a very very difficult process by fucking design.

    Are we a nation of laws or men? It’s getting harder to tell.

  99. It changes depending on her time of the month.

    Her vagina hurts more today so this amendment means something different today.

  100. “And we would have preferred if she had used the hearings to explain to the public that the much-mentioned distinction between judges making and applying the law has little meaning.”

    You know why it has little meaning? Because of you same assholes claiming it is a living document that is supposed to change with the times. Evidently the whole living constitution thing condones using race to determine whether someone should be hired and believes empathy for certain classes of people should be more important than the actual facts of the case. Seems the Times wants the blindfold to come off of Lady Justice.

  101. “The 2nd amendment is hardly the example I’d use to illustrate precise language in the constitution.”

    Why not? It states plain as day that the right of the people to bear arms shall not be infringed upon. The only reason there is any debate over it at all is because of assholes like you claiming that of all the amendments in the Bill of Rights, somehow the right to bear arms, a right that pretty much everyone involved with the Constitution believed was a sacred right of the people, is a only a collective one.

    “The arrogance and condescension with which you hold your beliefs…”

    Seems your computer screen must be abnormally reflective.

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