Virginia v. Sebelius
rs at robertsheridan.com
Thu Dec 16 13:46:57 PST 2010
The idea that constitutionality is not entirely settled is what keeps the Court in business, year after year. Nevertheless, what is mostly settled is over two hundred years of constitutional interpretation as reflected in decisions having the force of constitutional law courtesy of Marbury, whether you think Marbury is bootstrapping or not. No one, I think, appears before the U.S. Supreme Court arguing that two hundred years of much-relied-upon development needs suddenly to be jettisoned because Madison meant um when he wrote er. Perhaps a bite here or there around the edges is what we should legitimately hope for.
The trouble I have with some of the views offered by Jon, with due respect, and some of the Tea Pary folk (not necessarily the same, but not necessarily all that far apart), is that it seems to throw out as absurd what I, for one, regard as hard-bought Conlaw progress. Were the Court to buy into what Jon offers by way of interpretation, and it may have if you like Heller, then I think we'd have to regard this form of originalism as a clue to valid interpretation; failing that it seems more like an idiosyncratic interpretation of some circumstances and archaic word definitions to comport with some sort of preconceived notion.
A quote from Thomas Sowell: The key to creating an illusory world is a biased selection of facts according to a preconceived notion.
And wasn't it the Mad Queen in Alice who said something like, "Words mean what they say I mean, nothing more, nothing less...?"
I certainly wish the so-called originalists would reaffirm the rights of workers to unionize, women to be protected, and children to be banned from the workplace before telling me that they have a much more protective version of liberty than those. And then, of course, is the question of civil rights. Why don't I hear the originalists describing how their interpretation is so much more protective than, say, Earl Warren's was? Instead, it seems as though the originalists wish to roll back the clock to some time around the Articles of Confederation.
On Dec 16, 2010, at 12:37 PM, Jon Roland wrote:
> As a courtesy, please recognize that constitutionality is not settled, that some may disagree, and that what is currently prevalent may change.
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