Quote:
TSGRacchus
Here's the problem with originalist judicial philosophy. If one is to interpret the Constitution in the sense intended originally by its framers, one must first ask: which framers?
A lot of words, but what they come down to is this: We cannot use the original intent of the framers as our guide when interpreting the Constitution because there was no single original intent. And so some other principle must guide us.
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Wrong, because a proper originalist seeks to apply the constitution based on what its text was understood to mean generally, not on the "intentions" of the founder.
The problem with anything and everything OTHER than originalism is that the very legitimacy of judicial review is based on a fixed meaning to the document. If the meaning of the text is meant to be fluid and changing, why isn't it legitimate to say that the meaning of the Judical Power has changed over time?
While even originalism may not always provide clear-cut answers, it is nonetheless the only LEGITIMATE goal of judges. Otherwise, you do not have rule of law, you have rule of judges.
Furthermore, the notion of a changing constitution defies the very purpose of a WRITTEN constitution.
To anyone who has ever bothered to educate themselves on originalism/textualism, you would see that there are a great many time tested tools for going about this exercise.
But the single most important aspect of originalism is that unlike any other judicial "philosophy" it actually CONSTRAINS the judge.
I recommend the following speeches as a good starting point:
http://www.joink.com/homes/users/nin.../ww3-14-05.asp
http://www.joink.com/homes/users/nin...ua10-18-96.asp