Politics

Should It Be Illegal to Interpret the Constitution as a Living Document?

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Originalism is the school of legal thought which holds that the Constitution should be interpreted according to its original public meaning at the time it was written and ratified. One of the virtues of this approach is that it forces both lawmakers and judges to grapple with the document's text and history, rather than simply treating the Constitution as a blank slate where they might write out their own policy preferences.

Brian Nieves, a Republican state senator from Missouri, is apparently so taken by what he perceives to be the charms of this approach that he wants to outlaw all other forms of constitutional interpretation. To that end, Nieves has introduced a bill, SJR 45, that would amend the Missouri constitution to require all state officials to "interpret the Constitution of the United States of America based on its language and the intent of the signers of the Constitution at the time of its passage." Moreover, the bill continues:

Any interpretation of the Constitution based on an emerging awareness, penumbras or shadows of the Constitution, a theory of the Constitution being a "living, breathing document", or any interpretation that expands federal authority beyond the limited powers enumerated and delegated to the federal government, without an amendment to the Constitution, shall be deemed to exceed the limited powers enumerated and delegated to the federal government.

There are a lot of big problems in this little passage. For starters, the field of originalism long ago abandoned the quest to determine the subjective original intentions of the Constitution's framers. As conservative legal icon Robert Bork, one of the initial proponents of the theory of original intent, later clarified in his 1990 book The Tempting of America:

The search is not for a subjective intention. It is important to be clear about this. If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay and collect taxes was not what other people meant, that would not change our reading of the Constitution in the slightest. Nor would the subjective intentions of all the members of a ratifying convention alter anything. When lawmakers use words, the law that results is what those words ordinarily mean.

The fact that Nieves employed the suspect phrase "intent of the signers" suggests he might not entirely understand the legal methodology he claims to support.

But it gets worse. Let's say Nieves correctly drafted the language of his bill to refer to originalism as seeking the original public meaning of the text (what Bork called "what those words ordinarily mean"). Who gets to decide whether or not Missouri lawmakers and judges are actually following that instruction? To put that another way: Originalists disagree all the time about matters of constitutional interpretation. Just yesterday, in fact, at National Review's legal blog Bench Memos, conservative lawyer Ed Whelan and libertarian lawyer Paul Sherman debated whether or not the Constitution protects the unemumerated right to economic liberty. In my view, Sherman made by far the stronger originalist case, but that doesn't mean every self-proclaimed originalist is going to buy it.

And then there's the growing school of progressive originalists to factor in. The lawyers at the left-leaning Constitutional Accountability Center, for example, also justify their arguments by appealing to the Constitution's text and history. Will they get a free pass under the proposed Missouri amendment? I think we can safely assume that Nieves never intended that result.

If originalism is going to win out over other theories of constitutional interpretation, it will do so in the marketplace of ideas, not via a sloppy and incoherent piece of legislation.

[Thanks to The Originalism Blog for the link.]

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  1. Well, if we want to change the plain meaning of the Constitution, we have the amendment process.

    Where that meaning is gray or really has been changed by circumstances, then it might be okay for the courts to throw in their two cents. After all, the Constitution itself leaves gaps in its meaning at times. For instance, Congress really can make some laws restricting the freedom of speech. It was doing that at the time (copyright, perjury, maybe some other stuff).

    1. Yeah, I don’t know why the concept of amending the constitution is become garlic to the vampire.

      I guess because passing amendments is hard?

      1. Exactly. You’d think the fact that they needed an Amendment to ban alcohol would clearly demonstrate that the commerce clause isn’t as strong as the courts have made it.

        1. You know, this is a really excellent point. Man, such a short, to the point comment, and it’s given me a whole new line of argument against the broad interpretation of the commerce clause.

          Sir, have yourself one internet. No, amend that and make that two.

        2. Come on man, that was almost 100 years ago. Times change and we have to change with them. Do you think the Founding Fathers would have added the 2nd amendment if they knew automatic weapons could be made so small and cheap?

          1. This is the go-go 21st century. We don’t have time for your old-fashionee amendmenty fall-der-all. Zip-zap-zippidy-doo and we have some new 21st century rights and fancy new bootheels to our necks.

        3. That’s an excellent point.

          1. It’s the only kind I make.

    2. Where that meaning is gray or really has been changed by circumstances, then it might be okay for the courts to throw in their two cents.

      That’s the living Constitution, in a nutshell.

      If the words on the page are no longer appropriate to changed circumstances, change the words on the page via amendment.

      1. No, that’s not what I meant, though I concede that maybe it should be amendment or nothing in the second scenario. I just meant that there could be some interpretation needed where we’re talking about things clearly not contemplated in the original document–like space travel or the Internet.

        For example, a strict construction argument might say that the Second gives me a right to own a nuclear weapon. That’s probably not a great idea (though I think I’m probably more trustworthy than many governments, but we’ll let that be for the moment). So a court determining that I have no right to a nuclear weapon under their reading of the Constitution seems reasonable enough.

        Whether that’s a hopelessly slippery slope is where I’m not sure. Maybe we should just be amending whenever something like this comes up?

        1. Why does the Constitution that is written in english have to be interpreted? Have you ever heard of a chemistry or geography book thay has to be interpreted?

          1. Why does the Constitution that is written in english have to be interpreted?

            Because it is written in general terms, and things happen in the world in specifics. Bridging the gap between general language and specific situations often requires interpretation of the general language.

            1. Interpretation is one thing. Maiming and killing plain meanings are another.

              1. Such as: “Congress shall make no law…”?

            2. Give me your favorite example of general terms that were interpreted into our specific world by the Supreme Court.

      2. Where things are gray, I think we have to accept some level of interpretation by the courts. But only to the extent that language is gray. Making the Commerce Clause into a grant of general police power is clearly an order of magnitude beyond “interpretation,” as is letting presidents declare war on their own, or permitting Congress to delegate legislative or judicial power to executive agencies.

    3. One problem I have is that a select few (rich white men basically) in the late 1700s not only got to draft and ratify the Constitution, but also determine that you would need a supermajority to amend it.

      I believe some founding fathers like Jefferson and Paine were weary of this and I believe for good reason.

      I do believe the US could use a process that at least puts down the threshold for an amendment down to 60%. The irony is we would need an amendment for that.

      1. Sorry RR, but as soon as I hear or see ‘rich white men’ I shut down. Didnt read past that…

        1. How about slave-owning men?

          1. That was the norm at the time. Get over it. Slavery will never return.

            1. Don’t be so sure. We’ll be enslaving doctors soon.

              And, as I’ve noted a hundred times here, the 13th does allow us to enslave–legally enslave–people convicted of crimes.

              1. Exactly. Just make it a crime for doctors not to offer their services at artificially low set prices. Play ball or go to jail, the favorite Catch-22 of the state.

                1. We’ve already enslaved librarians. Ever see one change jobs? See what I mean?

                2. Just make it a crime for doctors not to offer their services at artificially low set prices.

                  Already there Saccharin Man. It just hasn’t been expanded to encompass all aspects of medical delivery. Yet.

              2. We’ll be enslaving doctors soon.

                What do you mean, “soon”?

              3. Which, if they bothered to prosecute, would be everybody. We’re all potential slaves!

            2. That is not really the point though. My point was that the Constitution was not crafted in a truly representative fashion at all. It only took into account the viewpoints of about 10% of the population.

              1. My point was that the Constitution was not crafted in a truly representative fashion at all. It only took into account the viewpoints of about 10% of the population.

                So? The way the Constitution was designed, it allows for expansion via the amendment process. Generally, when I see these types of points raised, the argument devolves into “The amendment process is too hard!”

                Just because a small number of delegates wrote the document, does not invalidate either the process or the soundness of the precepts contained therein. It also does not allow for the empirical notion of “The Living, Breathing, Silly Putty Document” doctrine, as pointed out by commenters, specifically RC Dean and Pro’L Dib.

                1. I was talking about old-timey slavery, the kind Team Bluetards mean when they piss and moan about “states rights”.

                  1. Oh, right. That’s right out. Enslaving the general population? That’s progressive thinking.

                2. I do believe the amendment process is too hard (that is why I want it changed), but to say it does not matter that the dictates of a small, homogeneous segment of the population over two hundred years ago is dictating the way in which we can change our governing document is folly in my eyes.

                  I do believe the Constitution is in need of some serious reforms (it does not need to be completely scrapped, but a lot has changed over the years and more specificity would be nice), but the notion of a living document is not something I was even remotely tlaking about above.

                  1. I do believe the Constitution is in need of some serious reforms

                    Specifics please.

                    1. 1. Giving naturalized citizens the ability to become President

                      2. Giving Washington D.C. residents congressional representation

                      3. Term limits for judges (at the very least Supreme Court judges)

                      4. Explicit guarantee of privacy rights

                      5. Explicitly giving only Congress the ability to deploy troops unless the US has already been attacked

                      6. Establishing a vote of no confidence to remove the President from power if a certain percentage of Congress finds his/her leadership to be severely lacking.

                    2. 1) No problems with that. Added caveat of a minimum number of years of naturalization and residency though.

                      2) Make it a state first. And I don’t think the capitol should be granted statehood, so nope.

                      3) I have no problems with that.

                      4) This would need to be clearly defined to resolve competing privacy rights, specifically Internet and electronic media.

                      5) Nope. It would be no different than what we have now. In fact, troop deployments would increase because of bleeding heart Ticks on missions of mercy (Libya, for example. And soon to be Syria, as another.)

                      6) I like this idea in theory, but I’m not totally sold on this. FDR immediately comes to mind. Also, when Congress has super-majorities, like TEAM BLUE for 40 some odd years, it would quickly devolve into a Politburo. Perhaps a popular or electoral impeachment by the directly governed?

                    3. Your suggestions have merit and I forgot to mention an amendment to abolish the death penalty and possibly 23-hour a day solitary confinement.

                      I do think it would be rather hard for the populace to exercise the powers you suggest for 6. Would it be like the recall process for a Governor just on a larger scale?

                      I believe the residents of DC deserve representation just like every other community has, so an exception should be made

                      I think troop deployments was the wrong word. Perhaps, use of military resources would be better and I don’t know if deployments would increase since the polls I see often suggest such actions are generally unpopular.

                    4. abolish the death penalty and possibly 23-hour a day solitary confinement.

                      Definitely abolish the death penalty. Solitary, no go. There are horrible miscreants that, while do not deserve the death penalty, are a legit danger to other prisoners and are just reprehensible sub-human trash.

                      Would it be like the recall process for a Governor just on a larger scale?

                      Yes.

                      I believe the residents of DC deserve representation just like every other community has, so an exception should be made

                      We then agree to disagree. Puerto Rico has more standing to become a state. Yet time and again they decide not to, and they have no representation in Congress, preferring to remain a commonwealth.

                      Perhaps, use of military resources would be better and I don’t know if deployments would increase since the polls I see often suggest such actions are generally unpopular.

                      That’s true, and it is a bit of a head scratcher, because I’m not a total isolationist. It’s a challenge, because I can see where the term “military resources” could easily be bastardized into something that a military force should not be doing for flagrant political gain (read: a militaristic Peace Corps), as well as a politician’s personal boondoggle.

                    5. I’m not saying they shouldn’t be kept away from the general prison, but I do believe 23-hours is inhumane and I believe psychological studies have found a significant impact on the mental health of persons placed under such detention. My understanding is that violent offenders are not the only ones put under such conditions as I know the famous con man Steven Jay Russell is.

                      It also goes back to one of the big issues I have with the death penalty, which is that our legal system makes mistakes. Should we really allow potential innocents to go through 23-hours a day of solitary confinement? Obviously, abolishing the death penalty would be the top priority though.

                3. I don’t give a shit about the “Elites wrote it!” meme. So what. It protects the rights of all of us, including minority interests. Maximizing liberty is far more important than maximizing democracy.

                  1. It originally did not (if we are talking about women, blacks, etc.) and I believe minorities would have gained certain rights faster if the amendement barrier was not so high.

                    I care because I also believe certain provisions of the Constitution need to be scrapped or revised (not the Bill of Rights by any means). I do not believe it should require the arbitrary 67% and 75% support 10% of the population thought it should back in 1787 to say give judges term limits, put in an explicit provision guaranteeing privacy rights, or provide people in Washington DC congressional representation.

                    You are welcome to disagree, but I believe the Constitution is in need of change and I just feel that it is unfair that a select few made the barrier to change so high a few hundred years ago.

        2. That was what they were though. It wasn’t like women or minorities had any say.

          1. We know, I suppose, that women and minorities wouldn’t have included the parts about slavery or about how the govt can disenfranchise them. Those defects have been corrected – by amendments.

            So what else would the women and minorities have done differently if they’d been in the convention in 1787 and 1789?

            Separation of powers? Federalism (which at the time meant that states could go from allowing slavery – as most did then – to prohibiting it)? The composition of the Senate? Export duties? The Bill of Rights?

            1. And they may have been eliminated earlier if the requirement for one weren’t so high.

              I suppose we’ll never know as their opportunity for education was serverly restricted, but maybe they would have disagreed with how the votes of citizens in smaller states have greater weight than those in the larger states when it comes to the Senate.

              Maybe an explicit right to privacy that would make bills like the Patriot Act far more difficult to become the law of the land?

              I could be wrong, but I do believe these are isssues and would like to see them addressed. And I’d rather see the amendment threshold at 60%, which to me would be an improvement over the current threshold.

      2. You don’t absoulutely have to have an amendment – the original framers of the constitution didn’t have some orderly process. [see Declaration of Independence]
        Insurrection is always on the table.

        1. That’s the reset button and is a different matter altogether.

        2. “Insurrection” is fully recognized in legal history as “common law”.

    4. On thurdsay, April 19,at 2:28 pm, Pro Libertate, normally a staunch advocate for individual liberty and limited government, had a giant brain fart. In an attack of delerium the notion of the living constitution momentarily seemed appealing and he attempted to make a case for it.

      The rest of the Reason commentariat sentenced him to thirty seconds in time out where thankfully, he was able to gather his senses.

      1. No, no, no, I didn’t mean it that way. I just meant that there is a little wiggle room in the Constitution. Not anywhere near where the courts go.

        My main point, which I mistakenly thought I was making, was that anything actually changing the meaning of the Constitution requires an amendment, not “interpretation.”

        1. “anything actually changing the meaning of the Constitution requires an amendment”

          On thursday April 19, at 3:13 pm, Pro Libertate’s normally sound reasoning abilities returned to him and the entire commentariat breathed a sigh of relief.

          Whew!

          1. I thought that’s what I said in the first place. Oh, well.

        2. I understood what you meant and I was just teasing. The way you worded it could have been construed as an argument for the living constitution thingy, thats all.

          Has anyone ever considered that a living, breathing thing is also a shitting thing? A living, breathing consititution would shit all over us.

          1. What irks me is that the first rule of interpreting legislation or constitutional provisions is to look at the text itself. Next is to look at the legislative history or, in the case of the Constitution, the supporting documentation, like The Federalist Papers.

            If a court does all of that, there’s no way at all you can gut the Commerce Clause, give the president legislative powers, etc. The whole mess is an obvious power grab. In fact, it’s not inaccurate to label most of the last century as a slow coup d’etat by the three branches in evil concert.

            1. Agreed. The power-grabbers, the left in particular, but the right also in more circumscribed areas, have been waging a war of attrition on us and our constitution. It has gone so far that I think a very good case can be made that they have deligitimized themselves to the point where the current federal government is no longer the legal government of the land.

              1. I sent before I was finished. Sorry, I am about to go fishing and the peak time is 3-6….which is fast approaching., so I am distracted.

                I meant to add that because they are waging a war of attrition on us, we have to be very careful not to give them any openings. That is why I was teasing you before. give ’em half an excuse and the next thing you know we have an unlimited commerce clause, unlimited detention, socialized medicine……..

                1. Well, I’m just talking semi-scholarly bullshit here. If I were a politician or a public figure, I’d probably be more pointed in my skepticism about “interpretation.”

            2. Pro Libertate, “looking at the text itself” will tell you if the author was comprehensible. After that, turn off your over-active imagination.

  2. Should It Be Illegal to Publish an Article as a Alt-Text-less Document?

    1. I think I smell a 28th Amendment.

      1. I for one, would vote for Obama with Santorum as his VP if they vowed to get this Amendment passed.

  3. Sometimes I’m really impressed by how some idiot legislator can gin up a whole lot of press about their stupid bill that’s unlikely to even make it out of committee.

    Call me when more than two people think this is a good idea.

    1. *crickets*

  4. Who gets to decide whether or not Missouri lawmakers and judges are actually following that instruction?

    The three branches, just like they do now.

    This is nothing more than a limiting instruction on judicial interpretation and use of legal canons.

    To put that another way: Originalists disagree all the time about matters of constitutional interpretation.

    Which is fine, so long as they couch those disagreements over the actual words and intent at the time of signature.

    There are problems with the drafting, but I don’t see this as a big deal. Nothing in American jurisprudence or law says that all options have to be on the table all the time for judges. Legislators already restrict use of legislative history in some of the bills they pass, so why not restrict other modes and manner of interpretation?

  5. This bill would violate the 1st Amendment, so it would make itself illegal.

    Ouroboros.

    1. Yes, by the original meaning of the constitution it is unconstitutional to mandate that people think or say certain things.

      Betcha the guy gets re-elected though. It is a great stunt. Hell, if I were in his district, I might even vote for him.

    2. Uh, that’s not what it’s doing at all. The bill says STATE OFFICIALS have to interpret the constitution in a certain way. Presumably that means in the course of state business. They would still be able to think/say whatever they want in their non-official capacity.

      I don’t see how this is a liberty issue at all. It’s a bill about how one branch of the state (bureaucrats) reacts to the other (constitution). What does a slave care how the master makes the overseers treat each other?

  6. Conservatives: Ruining good ideas since 1972.

  7. I’m troubled by the prohibition on interpreting the constitution in light of “emerging understanding”. The founders were some of the most intelligent, forward-thinking minds of their day, yet they didn’t know jack about lots of things.

    Jefferson, for example, didn’t believe in meteors. His orderly view of the cosmos didn’t allow for anything as random as stones falling from the sky. That’s just one concrete example of the explosion of human knowledge and understanding that’s happened since 1789.

    I’m also suspicious of pretending that you can divine the founders’ answer to any question through studying their writings.

    It’s a slippery slope either way. No good answers.

    1. I’m also suspicious of pretending that you can divine the founders’ answer to any question through studying their writings.

      This. Even the historical text will be open to interpretation. Somewhere, someone’s going to be ‘interpreting’ or ‘discovering’ meaning.

      Why can’t we just continue the tradition of publicly savaging jurists who utter “living constitution”?

      1. This. Even the historical text will be open to interpretation. Somewhere, someone’s going to be ‘interpreting’ or ‘discovering’ meaning.

        Or just cherry-picking their sources, as courts have been known to do when finding an “intent of the framers” that miraculously matches what they wanted to do anyway.

      2. Does ‘savaging’ involve tar and feathers? If so, I am all for it. And, dont be so stingy, legislators shouldnt be invited to the party also.

        1. Sorry, ‘should’.

      3. Paul has my vote about “savaging jurists”.

  8. It’s ok. Judges will just interpret Nieves’ law to mean that their way of interpreting the law is correct.

    1. Ha! Maybe.

      I wonder what the enforceability of this is. Does the legislature convene to determine whether the law has been complied with and, if it has not, then determine that they are not obliged to follow the court’s ruling?

      Anyway, I kind of like this bill. There’s nothing sacred about the ways courts interpret rulings, and it lets citizens file suit to overturn rulings on the basis of statutes.

      Of course, what would really be interesting is if the court found this bill unconstitutional. Hmm.

  9. Besides the problems identified above, this bill is also effectively a form of nullification, since it “prohibits the Missouri legislative, executive, and judicial branches of government from recognizing, enforcing, or acting in furtherance of any federal action that exceeds the powers delegated to the federal government,” while requiring those state officials to apply a different mode of interpretation of the U.S. Constitution than any branch of the federal government does. I kind of hope it passes just to see the sheer train wreck it would cause.

    1. We need more nullification.

      Im still hoping for a governor to nullify federal drug laws with an armed militia.

  10. New constitution necessary.

    1. I’d settle for just acting like our old one matters.

      1. It matters kind of like a Big Chief pad. You scribble all over it until you can’t understand it anymore, then you just go get a new one.

    2. Be very careful what you wish for.

      1. Is there anyone here who looks at the possibility of a modern constitutional convention with anything other than abject horror? I mean, there’s no chance at all that we’d end up with anything remotely like a limited government at the end of it.

        1. Given the modern debasement of “right” into “entitlement”, and the prevalence of the idea that every single fucking thing that could bother someone, somewhere, merits a massive federal intervention, I fear you are right.

          1. Look at the Universal Declaration of Human Rights. It starts off great, then veers off into “rights” that are really just claims by some to a “right” to be supported by others.

            We’d be constitutionally enslaving some of us to the benefit of the majority if we had a convention today.

        2. If it ever happens, I will do whatever it takes (including possibly violating the NAP) to make sure Im a KY rep to the conconv.

          Actually, considering how they have been gaming the caucus process, Im not sure Paulites couldnt have a majority at a new ConConv.

          1. You know, as pessimistic as I am about a modern convention, there is a fairly compelling case to be made that the Constitutional Convention was a kind of minority coup. The delegates went way beyond their mandate, after all.

            On the other hand, the states did ratify the document, so there’s no real argument that it didn’t ultimately gain legitimacy.

          2. Your lips to god’s ear.

            Libertarians are such a rare species in Louisiana, if the party were allowed a delegate I would probably have no trouble getting on. Really, there are practically none here.

        3. Is there anyone here who looks at the possibility of a modern constitutional convention with anything other than abject horror? I mean, there’s no chance at all that we’d end up with anything remotely like a limited government at the end of it.

          I think we’ve talked about this before, and my prediction is that we’d craft something akin to the European constitution that took a dump a few years ago.

          There used to be a site called the WikiTution which attempted to crowd-source a constitution, but like all things wiki, it got closed off to non-registered members (hey now) because it was constantly getting vandalized. You know, like our living constitution does.

        4. Pro Libertate, the U.S.A. has changed into a beacon of tyrany for libertarians. A constitutional convention will leave no other people douting this.

  11. This is okay:

    interpret the Constitution of the United States of America based on its language

    This is not:

    and the intent of the signers

    Trying to divine “intent” is a game statists routinely play to stretch the law beyond what the words on the page clearly say (not that laws today aren’t so broadly written that they can be used to justify any all abuses).

    1. You mean to say that “Congress shall make no law” actually means “Congress shall make no law”?

      No fucking way!

  12. I say Missouri should go for it. Then the rest of can see how it works out.

  13. So if it is illegal can they throw judges in jail for violating it?

    This idea is bad for the simple reason that it takes power away from the judicial branch and gives it to the executive branch.

    Why even have a judicial branch if now the executive is the one interpreting the constitution?

    1. I don’t read it that way. I see it as state judiciary judging federal legislation.

      Today it seems that the Supremes view their job as defending anything that is voted on and signed, unless someone makes a really good case against it.
      We need the burden of proof to be flipped.

      1. “Are you serious? Are you serious?!”

        Anything congress does is presumed to be constitutional by the court in spite of congress members publicly mocking the constitution.

        Down the rabbit hole……

        Ok guys, I am outta here. Gonna fill an ice chest with delicious catfish…..

        1. Seriously, one change to the Constitution that could pay serious dividends is to add a simple presumption: Any act of government challenged in court is unconstitutional.

    2. While I’m not sure if one could throw a judge in jail, I share your general concern about separation of powers here. In fact, my first thought upon reading the article is that the legislature is clearly impinging on the role of the judiciary without authority to do so. Of course, if you look at something like mandatory minimum sentences, they’ve certainly tried it before, but at least with sentencing guidelines they can argue that addressing crime through legislation is within there power. It’s certainly not the case with legislating judicial interpretation.

    3. I think at least throwing anyone in the Executive, Legislative, or Judicial branch out of office for violating the Constitution would be a good thing.

      Having such a law in Honduras may have saved the country from an elected dictatorship, see Wikipedia: 2009 Honduran constitutional crisis.

  14. Great article. The problem is, it’s interpretation all the way down, whether you claim to be subscribing to original intent or not. How the words apply to a contemporary dispute is often what, particularly, the supreme court’s job is. I would say that in every case a judge or commentator is claiming that his opinion is originalist in nature, he is simply claiming an extra layer of legitimacy for his outcome preference than actually exists.

    1. I would say that in every case a judge or commentator is claiming that his opinion is originalist in nature

      And in many cases the person is openly lying.

      he is simply claiming an extra layer of legitimacy for his outcome preference than actually exists.

      No. He is lying. Arguing in bad faith.

      Kinda like you.

      1. So finally we agree on something? That would be that the horde of commenters here claiming the constitution is a libertarian document are big fat liars?

        1. Nah. That the people who think it is not a libertarian document (that is, does not provide for a federal government of limited, enumerated powers) are fools.

          1. It does that, it’s just that its powers are not as limited as you like. That’s fact. Whether it should be different is a fine question and one Republican-appointed judges are sure to continue addressing with zeal.

            What you don’t get to say is that your preferred set of policies are all required as if by holy writ. My position has always been that if the constitution does not allow for a flexible federal government with broad economic powers, then it’s an outdated document and either needs to be replaced or spell our doom.

            1. My position has always been that if the constitution does not allow for a flexible federal government with broad economic powers, then it’s an outdated document and either needs to be replaced or spell our doom.

              Shorter Tony:

              US Constitution == Silly Putty

              OR:

              Wants == Needs == Rights

              1. The constitution is a magnificent historical artifact. It obviously hasn’t delivered the world’s best governing system to the year 2012, and is obviously too difficult to amend. What also should be obvious, but isn’t in these parts, is that the world of 2012 has significantly different needs from the world of 1789.

                1. It obviously hasn’t delivered the world’s best governing system to the year 2012,

                  Which, among current examples, would you prefer?

                  1. Almost anything in the civilized world is preferable. Our government is broken and I don’t see a pathway to fixing it.

  15. “If originalism is going to win out over other theories of constitutional interpretation, it will do so in the marketplace of ideas”

    No. This is basically saying mob rules wins the day which is exactly what the constitution was written to prevent. The fact that circumstances change over time is the reason the constitution included an amendment process. Marketplace of ideas tells the kkk to shut the f**k up because they’re a**holes. The 1st amendment says everyone has a right to free speech regardless of how unpopular it is. We don’t amend the 1st amendment because putting up with the kkk’s bs is worth it if that means we can voice our opinions as well. If some judge can just say, well times have changed so this type of speech is no longer protected well we may as well just flush the Bill of Rights down the toilet. The fact that Tony likes it should tell you you what bullshit it is.

  16. WTF, my comment contains a word that is too long? When did Reason become Gene Hackman from Crimson Tide?

    I was saying that u n e n u m e r a t e d rights are clearly not a matter for t e x t u a l i n t e r p r e t a t i o n, so Mr Root’s example of d i s a g r e e m e n t among o r i g i n a l i s t s fails.

  17. OT:

    Finally, we have pictures of the Colombian hooker who the Secret Service tried to stiff (snerk). Over at Drudge.

    I predict a sharp spike in “business” trips to Colombia.

    1. I’d stiff her.

      1. Only if she was a stiff. Your penchant for necrophilia is legendary, Wartington.

        1. Those are only allegations.

          1. Which I’ve never heard you deny.

  18. It is illegal to interpret the Constitution as a living document. Duh. The Constitution is a legal document. It is the law.

    Even the pigs in Animal Farm had the decency to actually change the actual text of their constitution, even if it was done in secret. They didn’t insult the animals’ intelligence by interpreting “four legs good” to actually mean “two legs good.”

  19. No way dude who are they trying to kid?

    http://www.Anon-Data.tk

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