A thoughtful rejoinder from a reader:
“If you think the Constitution is an infinitely malleable shmoo where it’s
inconvenient, it should be a shmoo in all other circumstances too. “
That’s a strawman. You can think that the founders’ intent isn’t all that
matters when determining the meaning of constitution without thinking that it’s
therefore “an infinitely malleable shmoo”. (By the way, what IS a shmoo?)
Denying “originalism” is just saying that “the true meaning” of the
constitution isn’t necessarily exactly the same as whatever the founders’
intended it to mean — it’s NOT denying that it HAS a “true meaning”.
Sloppy defenders of “originalism” — and I’m not saying you are one, nor that
there aren’t non-sloppy defenders — often just conflate the idea that a text
has a true meaning with the idea that whatever that meaning is is wholly
determined by the intentions of the person who wrote the text. But the ideas
are quite obviously distinct.
Also, there’s no reason that someone who denies originalism can’t still cite the
founders’ intent in an argument about how the constitution ought to be
interpreted. Saying that intent isn’t everything is very different from saying
that it’s completely irrelevant.
Me: I think this is a blessedly civil and serious response (see? I don’t just post the crazies). I’m not sure I buy this high-minded defense of the living constitutionalists. The reader seems to be creating a straw man himself by making opponents of originalism into something distinct from, and eminently more reasonable than, the living constitutionalists.
When, in 2000, Al Gore said he would appoint judges “who understand that our Constitution is a living and breathing document,” and who grasp that “it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people” it sure didn’t sound to me like he had a fixed meaning of the constitution in mind. And how does that statement of principle conflict with my argument that “evolving experience of the American people” might include the fairly novel problem of al Qaeda type groups in the age of rogue nukes?
Another reader offers a possible answer:
What you’re missing is this: Liberals typically believe only in a one-way malleability of the Constitution. They believe it is a breathing document in the sense that the rights it grants to individuals constantly are expanding, but never retracting. In other words, you are entitled to be free from government intrusion into your specifically enumerated rights, plus rights that can be directly inferred from those rights, plus rights that are logically coherent with the rights you’ve inferred from the specifically enumerated rights. To say that Bush has done violence to the Bill of Rights is entirely consistent with this position and does not necessarily require a shifting view of principles of construction, although it could involve such a view.
PS – congrats on finishing the book, looking forward to it, and more in-depth analysis of the Sopranos. 😉
Me: Again, I think there’s merit to this point. That is certainly how some liberals would defend themselves. But, it’s simply not true that liberals are consistently on the side of individual liberty. They aren’t when it comes to economic liberty. They aren’t when it comes to religious liberty. They aren’t when it comes to gun rights or freedom of speech in the form of hate crimes and the like. I’m not saying they’re consistently on the side of tyranny on these fronts either. But even the briefest consideration of how liberalism comes down on all sorts of liberties demonstrates that liberalism is not libertarianism when it comes to constitutional rights (if there’s serious dispute of this point we can run through more concrete examples).
Update: See here if you don’t know what a shmoo is.