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Wednesday, May 09, 2012

Liveblogging Wood: Illusions of Power in the Awkward Era of Federalism

Why constitutional "originalism" is a load of hooey:

"The problem can be most fully seen in the ways in which the national government was created in the 1790s. Certainly the political leaders had high hopes for the launching of the ship of state. But though they commonly resorted to nautical image of launching a new ship, they also realized that in 1789 much of the ship existed only on the drawing boards. Not only was the ship of state largely unbuilt, but the plans and blueprints for it were general and vague enough that the size and shape of the ship still remained uncertain; it was not even clear what the ship would be designed to do. Everyone realized that the nature, purposes, and strength of the new national government all had to be worked out, and beneath the outward consensus of 1789 nearly everyone had his own ideas about what these ought to be." -- The Idea of America, p. 255

How in the world are we supposed to return to the Founders original constitution when they themselves all had different ideas about what that consitution was and what it was supposed to be creating? Of course, for certain procedural matters -- precisely the sort of thing for which one can create a "rulebook" -- the constitution is unambiguous, and has worked out per plan: members of the House are elected every two years, the president every four, and senators every six. But on all of the more fundamental issues, particularly on everything we now fight about, there just was no "original meaning" agreed to by everyone.

3 comments:

  1. The fact that it never occurred to anyone that a long-existing policy (say, prohibitions on abortion) might be unconstitutional is powerful evidence of original understanding.

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    1. So, it never occurred to any of the founders that long-standing policies, like, say, the establishment of a national religion, or quartering of soldiers in people's homes, or the censorship of the press when they made statements too critical of the government, or taxation without representation, could be unconstitutional?

      In any case, of course the contention is not that there was absolutely *no* common understanding of *anything* in the document, but rather that there was wide disagreement about many important things, such as the meaning of the commerece clause.

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    2. Interesting ambiguity of language. It honestly didn't occur to me that someone might read my sentence that way, but I see now that my syntax was confusing.

      How's this? "The fact (where it is a fact) that a policy was established and familiar, and yet no one alleged that it was unconstitutional, strongly suggests that the policy at issue was understood to be constitutional."

      Hence it's not right to say that "on everything we now fight about" there was no settled original meaning. Abortion is one example of something we now fight about; gay marriage is another.

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