Exactly. That’s why we took the time to write the constitution down. As things change, we can enact new laws and amend the constitution as necessary. When women got the vote, it wasn’t because some SCOTUS decision gave it to them.
I’m not interested in stagnation. I want the people, not judges, to decide what judicial progress should take place. The constitution has an amendment process specifically so that it doesn’t become stagnant. There are many things I would like to change about the constitution-- it’s a wonderful document and all, but it still has flaws (IMO).
This is no different from the way we “arbitrarily” pick a date when statutes become effective. There is nothing arbitrary about the signing date or the time period when the work was crafted-- that’s exactly when the crafters and the signers agreed on wording that expressed their will (and, by extension, the will of the people).
You lost me. Why would they abdicate doing something they were explicitly charged with doing? And I don’t know what you mean by “strict textualism” as opposed to “textualism”.
I’m guessing here, but I think thats about how the Supremes interpreted their authority to make Constitutional judgements on grounds other than a specific text.
First off, just because I’m pointing to weaknesses inherent to textualism doesn’t mean I support willy-nilly interpretation. Nor would I be silly enough to suggest that the plain meaning and history of the document/concepts do not and should not serve as a starting point. It’s foolish to suggest that one has to take either extreme.
The amendment process is intentionally several orders of magnitude more difficult than the legislative process, and could never cope with the pace of legal evolution. There is no claim that said process is or should be as fluid as would befit a legislature, just that it is faster than the amendment process.
Take, for example, the definition of speech. Should we go through the amendment process to determine if “fuck the draft” is politically protected speech? To pose the question of flag burning? Exotic dancing? What about questions of personal jurisdiction? What about questions of citizenship?
In a textualists’ utopia, should there be an equivalent number of amendments for every case that has expanded or contracted Constitutional protections? To rely on the amendment process would be akin to scrapping the constitution and replacing it with a body of legislation – still called the Constitution but continually updated and expanded to keep pace with cases and controversies.
Yes, the amendment process is necessary, and yes, there is a limit to interpretation such that it’s required. But to suggest that it is a viable solution to the problems of textualism overlooks the vast number of questions that arise and overlooks the reality and limitations of imperfect syntactic construction.
Why, then, is the claimed three-year lull you brought up so important as to not make it arbitrary? Did the Framers, after careful consideration of the evolutionary history of, say, due process, fully aware that what it meant in the 1500s changed by the 1700s, intend to close the books on its development?
It’s arbitrary in that there is nothing related to jurisprudence that signals that moment in time as the end of evolution. The date a statute comes into effect has importance as to whether something was legal before or after that date. It can’t be retroactive, of course, and setting a date for coming into force can have non-arbitrary considerations (e.g., having it coincide with other acts, allowing for planning, etc.).
While a nice talking point, it’s essentially empty. You would abolish much of the judiciary and replace it with nightly, national Constitutional referenda? You would have the nation as a whole determining questions such as whether or not an Internet home page is sufficient to convey personal jurisdiction, rather than someone (or a bench of someones) who has spent time studying such issues? In between American Idol votes, you want to determine if someone has standing or not to via a text vote? What kind of a PSA would be able to describe it and convey the issues at hand for that particular case?
We have a representative system of government. That includes all three branches. Judges are appointed by our elected officials. It’s not a perfect system and definitely subject to criticism, yet is laughably ironclad in comparison to throwing questions out to ‘the people’
Where in the Constitution does it explicitly charge the Supreme Court with being the final arbiters of constitutionality? I brought up Marbury because it is one of the cases that established that role for the SCOTUS. Such power is outside the scope and plain reading of the Constitution. The decision came after your magical time period for interpreting the Constitution. So again, if a bunch of Scalias got on the bench, should they look at Marbury being wrongly decided, overturn it, and henceforth abdicate responsibility for Constitutional decisions and rule only on original jurisdiction issues? Or would you like to move your goalposts a bit, and include that decision as well?
Why would we have to amend the Constitution to deal with “fuck the draft?” No textualist would have trouble dealing with this statement under the meaning of the term “freedom of speech” as it existed in 1791.
The question is presented much better by looking at something like nude dancing. Is nude dancing “freedom of speech?” In deciding this, the textualist is going to look to what “freedom of speech” meant in 1791, and then try to apply that to the modern day issue. If the textualist approach cannot find nude dancing to be protected by the First Amendment, and society really thinks it is important to protect nude dancing, then yes, an amendment would be the necessary result.
And most textualists would point out that, by and large, our society functions just fine without having to add new protections beyond those already in the document after we got done with the Bill of Rights in 1791. Of course, some might well argue that’s only because we haven’t been very textual in our interpretation of the Fourteenth Amendment. :eek:
Well said, and I’d agree. However – and for me this is a big however – over on Christian Forums, and in past threads on the subject here, whenever anyone attempts to state their position as “the plain meaning of the Biblical text,” I double-dog guarantee you, with bells and whistles, that what is going to come out of his mouth/pen/keyboard next is an opinion as to what that text really means that will be the cause of sharp debate thenceforward. I see no reason not to expect that trait of human nature to hold true in the Constitutional law aspect either. As may be evidenced by (a) “Congress shall make no law…” in the first Amendment actually has an invisible-to-laymen emanation attached that says what balancing acts the courts may use to enable them to make laws that do encumber the freedom of speech, the freedom of free rxercise, the freedom from establishments of religion, and even the freedom to freely assemble to petition for a redress of grievances; (b) Congress is empowered to declare war, the President to conduct it as Commander in Cheif once declared – except that Congress can apparently delegate their power to do so to the President by simple resolution, unlike every other (unconstitutional) delegation of legislative power; (c) the prohibition on cruel and unusual punishment and the due process clause taken together do not prohibit torture if you redefine the people to be tortured as falling in a special classification and do it on leased land – and in any case, “punishment” doesn’t mean anything until conviction – the authorities can do what they like with an unconvicted arrestee, and it’s perfectly legal to gut Habias Corpus because it makes the courts work too hard; (d) Despite James Madison and George Mason’s explicit concerns that enumerating rights might suggest to someone that any rights they neglected to enumerate were not really inalienable rights of American citizens, and the consequent writing of the Ninth Amendment, it is possible for a man sworn to uphold the law of the land to say with a straight face that the Ninth Amendment doesn’t guarantee anything, it simply means that if some legislature somewhere, say the Guamanian territorial council, decides to recognize a right, it’s not precluded from doing so. But if someone believes that a right to privacy or to marry, or to travel without justifying your plans to the T.S.A.,
those rights don’t exist, because they weren’t enumerated.
On this issue, I’m an Originalist. This country was founded on the principle that We the People had inalienable rights, and that government existed for the purposes enumerated in the Preamble, not that the Crown, oops, the Federal goverment might out of its beneficient largesse decide to permit us a few rights.
Actually, John has a very important point. Things did happen during that span of two years and change. Debates on each element of the proposed Constitution abounded in almost all of the Thirteen States. One point relevant to my previous post here occurs to me: the Federalists agreed to submit amendments guaranteeing a Bill of Rights to the Congress when it first assembled. My adoptive and beloved Tarheel State was the 12th state to ratify, holding out longer than anyone else save little Rhode Island. And the reason we held out? We refused to ratify until we got that promise of a Bill of Rights. That’s significant.