An essay by a Harvard professor of constitutional law has prompted a lot of elite conservative thinkers to begin musing on new non-originalist ways to interpret the Constitution to 'help the common good.' At the same time, a new think tank called American Compass wants to re-examine the use of government to 'help': "HELPING POLICYMAKERS NAVIGATE the limitations that markets and government each face in promoting the general welfare and the nation’s security."
The reason to support originalism wasn't because it was useful, but because it is true. A law is passed to do something specific, and it shouldn't be re-interpreted later to do something else even if a judge can creatively read it that way. The legislature should pass a new law to do the new thing, if they think it's worth doing; the old law should be repealed, if they no longer think it worth doing. That's empty of content about ideology.
As for government's ability to promote the common good, I've never been more skeptical of it than I am today. Government should be treated as a necessary evil, but an evil for certain.
I have an axiom, whenever the High Road appears in the title ("....has served its purpose and scholars should develop a more moral framework") the Low Road is sure to follow for most everyone except the Author and peers.
ReplyDeleteCan we just try originalism for a bit first?
ReplyDeleteWhich common good? Who defines it? Who pays for it? We're skating close to Rousseau's "general will," and thus far, that has not ended well.
ReplyDeleteLet's stick with the plain-language version of the Constitution, do what it and the Federalist Papers and other supporting documents describe, and call it good. Because free-interpretation is not good.
LittleRed1
The "common good" in our system is clearly laid out in one of our founding documents--the general Welfare that is explicitly and exhaustively defined in Art I, Sect 8 of our Constitution. That's what our government should work for, and all it can legitimately work for.
ReplyDeleteThe folks pretending to be Conservatives and Constitutionalists are merely those about whom Munroe Smith wrote 125-ish years ago:
the courts are obliged to 'find' [new law], and to find it in old cases. This can commonly be done by reexamination or re-interpretation, or, at worst, by 'distinction.'…When the old rule is sufficiently worm-holed…a very slight reexamination will reduce it to dust, and a re-interpretation…will produce the rule that is desired.
These folks would reduce our Constitution to dust. In their goal, if not their path or rationale, they are no different from Woodrow Wilson, or that press icon of Constitutional expertise, Ezra Klein.
Eric Hines
This is how the Torah and Bible were edited and creatively changed. People decided it was beneficial to "re interpret it".
ReplyDelete