Wednesday, September 14, 2005

Constitutional Interpretation

What with all the fun of Roberts' nominations going on, there has been a lot of discussion about different judicial methods- namely, the debate between strict constructionalists, who base their rulings on the text of the Constitution and more free interpreters (the official name escapes me), who are willing to read the Constitution according to what they feel is the most moral decision. While I personally am a fan of the former, I can see the point of view of those who cannot resist but try to make the world as they wish it was, as opposed to what it is- if I had the power to do so, I would probably be pretty tempted to remake the law, too.
But what I cannot understand is the theoretical opinion of the Originalists. I know that this is really often a code name for the practice I do support, but the idea still bothers me. As my father pointed out, a strict originalist should never have required desegregation under the fourteenth amendment, because obviously the people who wrote it had no problem with their own segregated societies. One can dance away from this by saying that Originalism is not an absolute, but a sliding scale, modified for the situation, blah blah blah, but the way I look at it, I don't really care what exactly everyone who wrote the Constitution was thinking at the time. I care about what they wrote. My ideal form of reading the Constitution is rather like an approach to Talmud study- read the passage, see what it could be saying, pick the reading that fits the best with the text without creating massive glitches in reality. Sometimes, a knowledge of historical context helps us understand a confusing text or language, but this is less of an issue with a Constitution written only two hundred years ago, from which time the culture and language have not shifted enough to make things actually difficult to understand.
Everyone who wrote the Constitution and its amendment undoubtably knew that their text would be re-read throughout history (certainly this is true of later amendments, whose framers had already seen it happen). Therefore, anything they wanted in, they should have written, and our business is to read their words and not their minds.

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