Battlepanda: Constitution in the middle


Always trying to figure things out with the minimum of bullshit and the maximum of belligerence.

Wednesday, December 28, 2005

Constitution in the middle

Alex Tabarrok can be an ass. But this is funny:
Liberals are claiming that President Bush has violated constitutional restrictions on torture and spying on Americans. Don't they understand that the constitution is a living document that must be reinterpreted in light of new events and understandings? An originalist reading of the constitution would throw us back into the primitive past when the minimum wage was unconstitutional. Fortunately, conservatives know that constitutional interpretation must change with the times and never more so than now. We live in a different world. The Founding Fathers may have been great in their time but they did not face the problems that we face today and we should not be bound by their 18th century ideas of liberty and executive tyranny.

I'm with Publius of Legal Fiction on this one. Originalism is insane and hypocritically applied by its practitioners. But the "living constitution" movement is based on a weak and unconvincing notion that you can interpret in a document beyond its writer's intentions. Both schools of thought arises out of a kind of magical thinking about the eternal validity of an 18th century document. The constitution is a remarkable, pivotal document that still holds the jurisprudence in this country together. But we cannot expect to find all our answers there, either through stubborn adherance (and, as we've seen, on this NSA thing, strategic abandonment) of Originalism or through creative tealeaf reading of the "Living Constitution" folks.