Ever heard of the "amendment process?" Apperantly you haven't or you'd realize that the ability to modify it to reflect modern society.

Are you insane? You really think Congress deserve more power? The insitution that steals billions from us in pork each year? The one that approved that Alaskan bridge? The one that overwhelmingly supported the Patriot Act, but when political winds changed, started railing against THE VERY THING THEY CREATED?

You throw up a ridiculous straw-man, against the originalist perspective and even then you fail to even fully refute it.

How can you expect anyone to take seriously, a view on the consitition-- a document written by a collection of the smartest people to ever live in this country--by the same person who actually believes our horribly corrupt and inept Congress actually deserves more power?

>>there could no meaningful gun control laws, states can declare official religions, national laws protecting labor, such as laws against child labor, union protections, minimum wage, and mandatory overtime would be unconstitutional. Enviromental laws would vanish.<<

Sounds good to me. Let's go for it.

>> All of the anti-segregation laws, including the 1964 civil rights act - would be null and void since they are based on a non-literal interpretation of the constitution's interstate commerce clause (as are many other laws). Our right to privacy would disappear.<<

Um, you are aware that there are a few amendments that go with the Constitution, right?

Dave

Ryan, what a passionate response! Of course I'm aware of the amendment process, and I fully support amending the constitution to reflect modern reality. I just don't think this will happen, which is why I support non-Originalist judges. As for giving Congress more power, perhaps I wasn't entirely clear in my post. Right now, Congress exercizes far more power than it is granted in the constitution. What I would like to see is the constitution updated to make the power that congress presently exercizes legitimate.

Dave, I'm fully aware of the amendments, but most of the anti-segregation laws that congress has passed are "constitutional" only on an extremely non-literal reading of the interstate commerce clause.

Mr Valdman, thank you for offering an honest argument, which is awfully difficult to get out of a lot of liberals, certainly on the topic of judicial nominations.

You've got a bad, untenable position, though, reasonable though it may seem. What you're saying is that essentially that we should ignore the constitution, and just have justices do what is right, or will get "results."

About two seconds thought should give you some idea why your approach is not tenable. If the constitution doesn't apply, then it's any old damned thing goes. That's bad enough with Congressmen, but at least we get some chance to put them out on the sidewalk every few years.

But unelected judges with lifetime appointments giving whatever orders they want on their own whim, what exactly kind of system of government would you call that?

Al,

Interesting response. I have several responses of my own. First, I am a proponent of A constitution -- just not OUR constitution in its current form. So, ideally, I would support Originalism. But I take it your main worry is that if judges don't adhere strictly to the constitution then they are essentially tyrants with lifetime appointments. Maybe so, but I am not that troubled by a little bit of tyranny. Indeed, I take little comfort in your observation that we can vote congressmen and presidents out of office. In any case, I'm not troubled by a little bit of tyranny because, as I explained in an earlier post, I think we place too much value on a government of laws and not enough on a government of men. But this requires a much longer conversation to hash out. Thanks for your comment.

>>there could no meaningful gun control laws, states can declare official religions, national laws protecting labor, such as laws against child labor, union protections, minimum wage, and mandatory overtime would be unconstitutional. Enviromental laws would vanish.<<


Yes there could. Those issues would be left to the states as the constitution intended it. Let the states choose what is best for them. New York is not the same as South Dakota or Mississippi and they probably don't need the same laws. Liberals are supposed to be pro-choice aren't they?

I respect this post not because I agree with it but because it's an argument I haven't really hard.

Originality is big with me.

There shouldn't be any gun control laws. They're specifically contrary to the constitution. Nothing in the constitution prohibits unions, minimum wages, labor laws or any of the other stuff. You just don't seem to understand the role of the constitution.

Strict interpretation of the constitution doesn't mean that all other law would be abolished, it just means that laws that are contradictory to the constitution would be done away with and laws which cover areas it does not address would remain in force, especially if they were state law, which most of them are.

As for a NEW constitution - oh my god, what a nightmare. Can you imagine the kind of horrendous document our current leaders on one or both sides would come up with? One of the great things about the constitution is that because it predates all the insane partisanship we have today it's fair and untainted in a way that would never be possible if it were written today. Look at the monstrosity that is the EU constitution. If we had to be governed by a 500 page mess of draconian do-gooder crap like that I'd just as soon move to some other country.

Dave

I think Mike is a lawyer worshipper. He wants to entrust the governance of America to nine lawyers. Actually, I would prefer nine down-to-earth common working men. So let's have an amendment that specifically excludes the legal profession from being eligibile for ANY judicial appointments, not just the Supreme Court - and while we're at it, keep the shysters out of Congress as well.

Dave is right. There is no way one can reconcile the liberal rulings for the 1st Amendment with the incredibily conservative rulings on the 2nd.

(not using the words in their partisan sense)

If we were to infringe upon our right to bare arms...the bad guys would be the only ones with guns!! thats a crazy idea. youve inspired me to go out and get my pistol permit. I might as well sign up to be one of Heston's buddies while im at it!

Lots to respond to. Here goes:

RedTard: Yes, the constitution, if intepreted literally, leaves much of what congress does to the states. Is this worrisome? I think so because if you look at the progress that's been made in the 20th century on worker protections, anti-segregation, and environmental laws, for instance, it was all made at the federal level. If it were up to the states, the South may still be practicing slavery (or certainly some form of Jim Crow).

Dave: You really ought to read the constitution carefully. It states very clearly what Congress can and cannot do. Whatever is not clearly granted to Congress is supposed to be handled by the states. Congress is really not given much power aside from taxation, maintaining an army, and regulating interstate commerce. And it is through a very non-literal interpretation of the interstate commerce clause that Congress gets its powers to regulate other things. As for the Constitution being non-partisan, you really ought to read more American history. It was an extremely partisan document that was ratified only after significant compromises were agreed to. The EU constitution may be 500 pages, but the secondary literature on our constitution -- interpretations by the courts, that is -- is much longer.

Originalist philosophy is nearly as illogical as deconstructionism is/was. Any one who gives it more than two minutes worth of thought will realize that a constitution, no matter how well written and reasoned at the time is STATIC. I can be nothing OTHER than that. The Founders knew this. Thus there IS the amendment process. Scalia is not nearly so "brilliant" as some suggest if he thinks he can take the legal creation of men living two and a half centuries ago and apply it to a world COMPLETELY alien to their existence.

The basic elements of natural rights and natural law are malleable and the PROCESS the Founders left us to conform to new circumstances - THAT is what makes the Constitution wonderful. NOT fools that insist THEY and THEY ALONE can somehow reach back in time and tell US what the Founders REALLY WANTED US TO DO 250 years later...

Alethinos

>>Dave: You really ought to read the constitution carefully. It states very clearly what Congress can and cannot do. Whatever is not clearly granted to Congress is supposed to be handled by the states. Congress is really not given much power aside from taxation, maintaining an army, and regulating interstate commerce<<

I've read the constitution hundreds of times. The point you ignore is that almost all of the things which you claim the Constitution would not allow under a strict interpretation are already provided for by legislation in the individual states. Things like child labor and unsafe working conditions and minimum wages and gun control - every single one of these is addressed by a state law in every single state. So if the federal government suddenly lost all jurisdiction in these areas the impact on citizens would be negligible.

Dave

Dave,

I agree that if Congress abided by a literal interpretation of the Constitution then the States would pick up some of the slack. But the mere fact that state laws already "address" some of these issues is not sufficiently comforting. If you look at the progress that's been made in the 20th century on issues from worker protection, anti-segregation, anti-discrimination, environmental protection, and a range of other issues, what you'll find is the Federal government leading the charge. As I mentioned earlier, if the states had their way there would probably still be Jim Crow laws in the South.

Mike,

First of all, this is an interesting argument and I'm enjoying it (partly because the sniping and ad hominem stuff seems to be pretty minimal here). but I also have to disagree with you.

The crux of my disagreement is in Comment 3:

Of course I'm aware of the amendment process, and I fully support amending the constitution to reflect modern reality. I just don't think this will happen, which is why I support non-Originalist judges.

What it seems like you're saying here is "Repairing the Constitution is a lost cause, so our best hope is to find some justices who will simply maneuver around it."

If you read it that way, it's fairly easy to see why so many people are having such a hard time agreeing with you.

Also, some of your points about existing laws are not correct. For example, the majority of civil rights legislation -- ESPECIALLY the Civil Rights Act of 1964 -- is informed by the Equal Protection clause of the Fourteenth Amendment, NOT the interstate commerce clause.

Michael,

I think your interpretation of my view is dead accurate. I do think that repairing the Constitution to the necessary extent is practically infeasible, and that is in part why I support judges who don't interpret it too literally. I can also understand why people are reluctant to accept this view. But I think this reluctance comes primarily from an erroneous view of the Constitution's merits (brought on by years of indoctrination), from the fact that my view is not the sort of view you can express publicly if you're a politician (or an aspiring one), and from my view's novelty. If you're not convinced, just consider the alternative to my view. The most popular Liberal alternative is that the Constitution is a wonderful document but we ought to have judges that interpret it loosely. That makes no sense. This is why I say that whether you support Alito should turn entirely on how you regard the Constitution.

One man's "perfection" is another man's imperfection, and Mike's idea of perfection is definitely not mine.

One man's notion of "progress" another man might call retrogression. Mike seems to believe that whatever changes to the constitution have been collectively agreed upon are improvements. I think nearly all of them have been huge mistakes - for example direct election of senators whereby an effectively unicameral legislature was established, with the only differences between the two houses being the trivial ones of size and term length.

Why am I an "originalist"? Because a revered constitution is a reliable rock of stability that gives us the security of knowing that its protections are not going to be tampered with by revisionists who want to foist THEIR new ideas of what constitutes perfection on everyone else.

Justices like Breyer scare the hell out of me with the deference they are willing to give to INTERNATIONAL law, which has the potential for destroying basic FIRST Amendment and PREAMBLE guarantees - as for example ruling to "harmonize" with the UN's Codex Alimentarious guidelines that would take away the freedom of Americans to pursue happiness by choosing to keep ourselves healthy by having access to organic, non-irradiated, GMO-free foods, and being able to supplement our nutrient intake with high potency vitamins, minerals, amino acids, etc.

The most popular Liberal alternative is that the Constitution is a wonderful document but we ought to have judges that interpret it loosely.

That's a little bit oversimplified. The usual Liberal line is what is called "the Living Constitution," which states that as the U.S. has evolved, the meaning of the U.S. Constitution has evolved with it. That's why it's taken as the opposite of originalism.

I tend to think that a good Constitutional judgment uses both originalism AND the Living Constitution. That is, you take both interpretations and reconcile them.

Brown v. Board of Education is an excellent example of that. It used originalism in the context of the Equal Protection Clause of the 14th Amendment, then used the Living interpretation to determine whether the Plessy v. Ferguson "Separate But Equal" doctrine was still applicable in the modern United States. The final determination was that Separate-But-Equal may once have had a place in public education, but now that education was a right and attendance mandatory, it was obsolete and unconstitutional.

noanchorbabies, there are no guarantees in the preamble...

"That's a little bit oversimplified. The usual Liberal line is what is called "the Living Constitution," which states that as the U.S. has evolved, the meaning of the U.S. Constitution has evolved with it. That's why it's taken as the opposite of originalism."

If the above is the usual Liberal line, then the usual Liberal line concedes that the Constitution in its original form is inappropriate for modern purposes. But rather than argue that the Constitution should be updated to reflect modern times, Liberals argue that judges should do the upgrading on the sly. All this talk of a "living constitution" amounts to little more than the idea that judges should use their discretion to drag the Constitution into modern times. Surely what's evolved is not the meaning of the constitution but our sense of what government ought to do. Confronted with this, an honest approach would recommend updating the Constitution rather than acting as if the Constitution is beyond reproach and that the problem lies in a musty judicial philosophy.

The problem is that the amendment process can't keep up with an evolving society. By the time amendment x passed, we may need amendment y to make amendment x fit better with how society feels at that moment.

The big problem is that judges today are ruling on cases involving things that did not exist when the document was written. The Sumpreme Court Justices don't have time to wait for congress and the states to pass new amendments for every new technology that comes along.

You know, the funny thing is, Thomas Jefferson suggested 200 years ago that the Constitution should be re-analyzed and re-evaluated every ten years in order to update it for a changing nation.

If we'd listened to him, we might've avoided this altogether.

"The basic elements of natural rights and natural law are malleable"

Yes. The natural right to liberty (originalist meaning: freedom of the INDIVIDUAL from intrusion into his life by the government) can certainly be hammered into the more modern notion, viz. freedom of the GOVERNMENT to impose upon the individual ITS ideas of how he should be pursuing his own happiness.

I studied law in the States. The prof for "Con Law", that subject dealing with your constitution, presented the very concepts that Mike Valdman presents in his piece about Alito.

The prof was a Republican who would fit what you folks would call a "super conservative" mold. From my own perspective, a fellow who literally interprets the document as Mike Valdman suggests he will, will be safely in the minority most of the time.

A question you might do well to ask, though is, how would this man interpret legislation? That is an entirely different can of worms. Most cases that come before the supreme court of the United States that get considered, are not necessarily cases involving the constitution.

An additional question is what are his views on judicial economy, and how does he view precedent? These will determine what kinds of decisions you will see out of him, because much that comes before the supreme court involve just these issues.

>>I agree that if Congress abided by a literal interpretation of the Constitution then the States would pick up some of the slack. But the mere fact that state laws already "address" some of these issues is not sufficiently comforting. If you look at the progress that's been made in the 20th century on issues from worker protection, anti-segregation, anti-discrimination, environmental protection, and a range of other issues, what you'll find is the Federal government leading the charge. As I mentioned earlier, if the states had their way there would probably still be Jim Crow laws in the South. <<

The federal government could lead on these issues without imposing the laws itself. For example, they could withold federal funding for programs in states where certain types of laws were not enacted. That would leave the states to figure out their own solutions to those problems, but make sure they did address them.

Dave

This is a great discussion and really gets down to what our constitution means and how we want the law to apply to our lives today.

I take a pragmatic view, which somewhat aligns with Mike's views. I see the constitution as a fine document (as opposed to Mike) that absolutely needs to be correctly interpreted in light of modern times. The founders never could have predicted the Internet and air travel and AK-47s and anthrax and eBooks and on and on. Technology, therefore, makes it rather silly to read that two hundred-year plus old document literally.

There are a lot of people today who believe that fully automatic military weapons are EXACTLY what the founding fathers would have wanted us to have, and who believe that the need to have state of the art military arms in the hands of common citizens is as great today as it was then, because some day those of us who form the 'unorganized militia' might have to use them against the government and we should never lose that potential.

Personally I think the Swiss approach of universal conscription followed by universal possession of military arms is the way to do this responsibly while defusing criticism.

Dave

There are others who believe that the second amendment applies largely to the "militia" and not to ordinary citizens, correct?

I can't believe that you would really want to infuse more guns into American society. Maybe that works in a different cultural environment, but I believe the goal should be less guns and ammo in the U.S.

Except that the founding fathers clearly defined the 'militia' as all men of military age.

More guns going hand in hand with more training might not be such a bad thing.

Dave

Again... Let's remember that the Founders assumed there would be no standing army when the Constitution was being written. They had thrown in the 3rd Amendment only because the British abuse of homeowners in the colonies had been so onerous that it was something of a kneejerk reaction. The 2nd Amendment was written, if we take a little time and put ourselves in their shoes (now, see, HERE is where Scalia SHOULD try and understand what was going on in the minds of the Founders and usually this is where he completely fails)...

There wasn't expected to be a standing army - or if there were it would be very small. Even though this was all an outcome due to the weakness of the Articles of Confederation there was still an assumption that the central government would never be TOO powerful...

Combine THIS with the fact that the formation of NEW STATES would be out on the EDGE of the new nation - and quite often literlally in the middle of INDIAN COUNTRY. Even if there were some standing army it would be widely scattered.

Thus an insistance that the people retain the right to bear arms BECAUSE militias would be needed. And indeed, even though there was a significantly more enhanced "standing" army after the Civil War, by the 1880s the army and armed forces were stripped of a descent budget for decades.

Alethinos

the constitution was not meant to be read subjectively. you are just angry that he was right in saying that the constitution does not provide protection for the right to have an abortion. boo f***ing hoo.

Yeah, and they said that Bush was pro-Choice...

I agree, Alethinos. We should disband the standing army ASAP.

Dave