living constitution

 In the part of the reading on “Lack of a Guiding Principle for Evolution,” Scalia points out that the originalist’s point of view is more consistent and contains more of a guiding principle than that of a person who believes in a living Constitution. People will inherently disagree on what parts of the Constitution should be evolving and ultimately it will end up evolving the way the majority wants it to. If people understand the Constitution as what it should mean, in light of evolving standards of decency that mark progress of a maturing society, they will look for judges that agree with them (46). 

One question I have in response to this: what is the problem with looking for judges that agree with them? If the new understanding of the Constitution can objectively be understood as evolving standards of decency that are demonstrating our society is making progress, why are we against the meaning of law changing over time? Scalia argues this is not the role of the courts and the Constitution is meant to prevent change and embed certain rights. However, the Framers likely would not have anticipated the amount of gridlock that occurs today (or the emergence of the two party system.) Who is to say they would not agree with the courts use of its role to advocate for change? Why should we subscribe ourselves to the original meaning of the text when that meaning may not be what we would agree is applicable and beneficial to our society today? Is the objective goal of the law to protect these set positive freedoms at the expense of others republican freedoms (as defined by Anderson as the right to not be dominated or subjected to someone’s arbitrary, unaccountable will)? Or is it aiming to balance these concepts to ensure the most ____ possible society for everyone? Additionally, the presence of Article 5 and the Tenth Amendment suggest that even with the limited view the Framers had, they still did believe they did not get everything right and it was necessary to have outlets for change. Article 5 provides for a formal amendment process and the Tenth Amendment states that the powers not granted to the Constitution were reserved to the states. Through this, individual states have been able to become their own “laboratories of democracy” to experiment on different policy issues they deem important to them. This amendment acknowledges the limitations of the Constitution, and in the end explains what is not written is still granted. Different states are often fundamentally different, and when agreed upon issues emerge out of them, those issues can push for federal policy as well. 

Comments

Post a Comment

Popular posts from this blog

Does the social reality imply a natural reality?

I’m very interested in understanding where the boundary between what we might consider the (or a) ‘natural’ reality and our ‘social’ reality occurs. Professor Toole offers a compelling account of how the ideology of the ruling class shapes the body of knowledge and the conceptual tools available to understand social reality. Professor Toole’s account seems to imply the impossibility of social structures as being ‘natural.’ That is, the term natural social structure or formation would be an oxymoron. She writes, “social structures are…constituted by our choices and actions,” (4) which seems to indicate that social structures are the result of human choices and actions, and so they cannot exist in the absence of them. This also seems to suggest a division between our ‘social’ reality exclusively defined by and dependent on human action and choice and a ‘natural’ reality of things not affected by humans, say the ocean and uranium. I am interested in the boundary and relationship between t...
Read more

Is cancel culture democratic (with a small "d" even though it is also Democratic with a big "D")?

Regarding Kara's Post: I want to try and tease out how Kara's blog post fits the college into Anderson's image of a private government. It seems like Kara's suggesting that the college itself is the private government. The professors are the governors and the students are the governed. The college constitutes a government because a government "exists wherever some have the authority to issue orders to others, backed by sanctions" (Anderson 42). Professors can issue orders by assigning tasks students must perform, and professors can sanction students who fail to complete these tasks or fail to do them successfully by giving them poor or failing grades in courses. The college is a private government because the "governed are kept out of decision-making" (45). The students do not, for the most part, come up with their own assignments or come up with grading rubrics for those assignments.  I agree with Kara, based on the image of the college as a private...
Read more

Better Model?

     On page 54, Beitz says that human rights are like natural rights in that they are "critical standards" not determined by legal rules, but unlike natural rights in that they do not presuppose one view about their justification. He seems to be basing this off of Maritain's conclusion that human rights are a common ground for action despite different reasons for justification for different people. He uses this to say that human rights are not "out there" as natural rights are and continues the argument on 57. He argues that there seems to be no good reason for why we should  conceive of human rights as natural ones.      Beitz points to natural rights theorists like Locke, conceived of natural rights " formulate constraints on the use of a government’s coercive power in circumstances of religious and moral diversity" (57). While I suspect that Locke would argue that he had other reasons for posing these as natural rigthts and this was a just a desira...
Read more