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Tuesday
Jan142014

Missouri, Originalism & Stupidity

(replying to a mail below)

... actually, this is easily disposed with.

I've long thought it terribly incorrect for people to say that the Constitution is "living." No metaphysics of any kind is needed.  If a constitution is legislated in flexible language, the language is flexible, period. The only part that is non-flexible is the stuff that is defined and pedantically set forth -- which, for our Constitution, seems to be nothing (in theory). 

This view has nothing to do with metaphysics; it has to do with philosophy of legislation. What gets passed into law when text is plain? Given how American legal culture is oriented toward text (and how plain language naturally works),  you would have to take a religious attitude toward the document to say that it legislated its history. You'd have to treat the thing as a scripture or testament.  And so, it is the originalists who are being metaphysical here. I'm just being a brute legislative realist. There is nothing in any act of legislation unless the mind is cognitively directed. Gaps are filled in by intelligence, not history for its own sake. 

A more interesting amendment would say something like this: judges are required to treat the legal words of the Constitution as though they specifically enact their history. In other words, the Constitution must be treated as something that requires an historical obedience (like an animal sacrifice might). We must, in short, always follow the ways of our ancient fathers. This is another way of saying that we'd have to be legally Amish. In fact, it reminds me of two things: 1. Islamic courts. 2. The Turkish constitution, which I believe requires certain provisions to be read according to the will of some social pantheon (Attaturk?). See Ozan Varol: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1912202

Anyway, here's the point: we're not the crazies, they are.

Regards and thanks.


Dr. Sean Wilson, Esq.
-------------------------------------------------------

On Tuesday, January 14, 2014 12:07 PM, "Raftery, William" <wraftery@ncsc.org> wrote:

In light of recent discussions on original meaning/living constitutionalism, I’d draw your attention to a constitutional amendment recently (re)introduced in Missouri that would prohibit the state’s judges from using anything other than original intent and explicitly banning the view that the U.S. Constitution is a "living, breathing document."

 "Any interpretation of the Constitution based on an emerging awareness, penumbras or shadows of the Constitution, a theory of the Constitution being a "living, breathing document", or any interpretation that expands federal authority beyond the limited powers enumerated and delegated to the federal government, without an amendment to the Constitution, shall be deemed to exceed the limited powers enumerated and delegated to the federal government."

 The amendment goes on to specify some of the activities state judges would be prohibited from supporting (e.g. “Any federal action regarding the establishment clause based upon a "wall of separation" between church and state.”)

 There is a chance of this passing this year to appear on the 2014 ballot; it requires only a simple majority of the House and Senate. The 2012 iteration made it out of the state senate committee and the full House approved a version in 2010.

 http://gaveltogavel.us/2014/01/14/missouri-will-again-try-to-compel-state-judges-use-original-intent-interpretation-of-federal-constitution-nullify-federal-laws-court-decisions/

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