2011/06/09

Approaches to reading the Constitution

This is a response to Saul Cornell, "Why the Right-Wing's Approach to Reading the Constitution Is Destroying This Country" -- That idea that judges should interpret the Constitution by discovering the original intent or meaning of the text ignores the history of this country's founding.



The article uses a broad brush to make its point, but it is an exercise in tergiversation (look it up). Many people claim to be originalists, but only a few leading scholars can be properly so labeled, including Randy Barnett, Roger Pilon, Gary Lawson, Kurt Lash, Lawrence Solum, and a few others, including some but not most legal historians. Social conservatives are indeed prone to cherrypick the Constitution to support their policy agendas, but they do not deserve to be called "originalists".

At least some are supporting originalism rhetorically, even if they don't initially get it right. That's a start.

The Constitution does not support the policy preferences of most people, anywhere on the political spectrum. Most people who set out to discover what the Constitution originally meant have to abandon their own policy preferences, or else propose amendments. I have certainly had to abandon many of mine. But what I soon discovered was that those policy preferences were misguided or ill-conceived, and that the Constitution as originally meant actually represents better solutions, to the extent there are any solutions. What one often discovers that that those proposals discovered to be unconstitutional either would not work or would make the situation worse. There are many problems beyond the competence of government, no matter what its constitution might authorize.

See http://constitution.orghttp://constitution.org to find out what real originalism is all about.

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