Sunday, July 31, 2005
Living Constitution, But Is Anything Other Document Living?
In the runup to the Supreme Court nomination, you can find arguments for and against Originalism, which is the textual theory that you should interpret the Constitution based on the meanings of the words as it was understood at the time, especially by the author or authors. I can't think of a better definition
Many in academia and other places disagree with this theory. They usually argue for a "living, breathing Constitution". Or a Constitution whose meaning is determined by those who read it.
Not only is nonsense, most legal experts who hold this view also don't believe in this method of interpretation in their heart of hearts? How do I know?
None of them use that methodology to interpret Supreme Court decisions. If that methodology should be good for one text, it should work to properly interpret any text. Do you ever hear about a "living, breathing" Roe v. Wade. I don't. Roe v. Wade is not dependent on the readers, but the actual words of the decision, for its meaning.
Why do you then hear about a living, breathing Constitution? Because the Constitution is a constraint. It prevents people from getting anything they want. Any document that has a role as a constraining influence will be treated in such a way.
In the runup to the Supreme Court nomination, you can find arguments for and against Originalism, which is the textual theory that you should interpret the Constitution based on the meanings of the words as it was understood at the time, especially by the author or authors. I can't think of a better definition
Many in academia and other places disagree with this theory. They usually argue for a "living, breathing Constitution". Or a Constitution whose meaning is determined by those who read it.
Not only is nonsense, most legal experts who hold this view also don't believe in this method of interpretation in their heart of hearts? How do I know?
None of them use that methodology to interpret Supreme Court decisions. If that methodology should be good for one text, it should work to properly interpret any text. Do you ever hear about a "living, breathing" Roe v. Wade. I don't. Roe v. Wade is not dependent on the readers, but the actual words of the decision, for its meaning.
Why do you then hear about a living, breathing Constitution? Because the Constitution is a constraint. It prevents people from getting anything they want. Any document that has a role as a constraining influence will be treated in such a way.
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Here's a question I've started asking attorneys who believe in an "organic" approach to the "living Constitution" and who have accepted the dominant critical theory (relativism) in law school:
"Do you practice contract law that way?"
The answer usually runs something like "uh.....uh......ummmm..."
They don't use "organic, changing" interpretations in contract law, and they'd never earn a living if they did. Furthermore, they know good and well when they sign their house mortgage, they're endorsing a document that is not organic and subject to change according to the interpretation of some random reader.
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"Do you practice contract law that way?"
The answer usually runs something like "uh.....uh......ummmm..."
They don't use "organic, changing" interpretations in contract law, and they'd never earn a living if they did. Furthermore, they know good and well when they sign their house mortgage, they're endorsing a document that is not organic and subject to change according to the interpretation of some random reader.
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