Tuesday, July 03, 2007

Yep .. what he said ...

William Falk in the July 13 issue of The Week writes:

It's such a reassuring notion. Imagine a Supreme Court in which the justices do not make their decisions based on partisan biases, personal whims, or constitutional "penumbras" and "emanations" perceived by the justices alone. "The Constitution means what it says," says Justice Antonin Scalia. "You figure out what it was understoond to mean when it was adopted and that's the end of it." In practice, this philosphy of "originalism" or "strict constructionism" sometimes proves more vexing than it sounds: Did the Framers understand the right to bear arms to mean that every citizen could own a musket, or were they also guaranteeing the right to wield semiautomatics with 50-round clips? How about machine guns? Bazookas? When the Framers said Congress could not infringe on the freedom of speech, did they really mean "speech," as in words, or does speaking freely include the right to hand a 6-inch-thick pile of $100 bills to senators to do your billing?

Being human, you and I might succumb to the temptation to answer these questions to suit our own desired ends, and then reason backward to create a constitutional justification. (That's how justices get "penumbras" and "emanations.") But not Scalia and the orignalists. They know what the Framers intended. In its rulings thus far, the new Supreme Court has sided with religious groups, corporations, developers, the current president, and the white males, and against students, women, blacks, and atheists. Now, this is a wholly legitimate change of direction: The Constitution empowers presidents to appoint judges who share their political prejudices. Pretending that the court's rulings -- or for that matter, the rulings of any previous group of justices -- represent anything but a raw exercise in power, however, is transparently silly.

Can't help but read this and think about those who say the same kind of things about interpreting scripture . . . how they somehow also know what was intended . . . how equally transparently silly that idea is.

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