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Constitutional Originalism

by Jeffrey Simon on January 11th, 2011

As I previously posted the greatness of the Constitution does not lie in the fact that it was “hand down,” is “sacred”, or was written by our founding fathers. It’s greatness rests in the merits of the ideas behind it.

In the article by Jeffrey Rosen in the New York Times, If Scalia Had His Way, there is a discussion focusing on “originalism”, which is the doctrine that attaches great importance to what the intent of the founders was. A thinking person should realize that it is not so much what that “ancient” intent was, but rather that those ideas are the right ideas because their merit has stood the test of time.

In my opinion the argument about “originalism” is similar to arguments of religious scholars of opposing viewpoints on how religious texts should be interpreted and used to guide or control modern living. I set forth my initial views on this subject in my blog post of 13-Dec-2010 titled “Why is the US Constitution Good?” (http://www.oofdah.com/?p=693)

Here is what I believe:

1. There is a proven framework for good government and maximization of human happiness.

2. The US Constitution embodies much of this framework.

3. The framers acknowledged that their work was imperfect, and provided an explicit process for amendment. While I am sure they had certain principles in mind, I recall that there was considerable debate leading up to the final document, and that they also stated that evolution would be necessary in the future. Thus I don’t believe the “activists” are the only ones with the evolutionary viewpoint, but that even the framers had this viewpoint.

On my reading list are both the Federalist Papers and the Anti-Federalist Papers. After I have read those, I will be better able to put forth my views.

4. We should attempt in our good government efforts to use the proven principals. When there is Constitutional support for those principals, that shows how illumined and far-sighted the framers were. When the Constitution goes against those principles, then it needs to be amended. A historical case would be the “3/5 of a person”, and other examples cited in the article below. A timely case in point is the reinterpretation of the 14th Amendment, particularly the clause “and subject to the jurisdiction thereof.”

5. I would thus tend to agree with the assertion in the article that originalism is a rhetorical argument. My views above would not so much be originalism as they would be “proven framework for good government and maximization of life, liberty and pursuit of happiness with the recognition of the need for evolving concepts.” I suspect somebody has given a nice, short name to that view, but I don’t know what it is.

Only after accepting that view does the debate then start as to what constitutes (as in “Constitution”) the best framework. For example, how dominant a role government should have.

From → Pithy Politics

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