[krapp]

>But there are also people who see, for example, the "living Constitution" jurisprudence as not actually upholding the Constitution, but rather just saying what you want and calling it the law.

And those people are incorrect. It's incorrect to believe that all modern Constitutional law and Supreme Court decisions are the result of judges and lawmakers simply making up whatever interpretation they like without any basis in, study of, or respect for the Constitution.

The alternative would be to pretend to know in all cases what an eighteenth century philosopher would decide about an issue of law in the context of modern society.

[AnimalMuppet]

If you'll re-read my post a bit more carefully, you'll see that the word "all" is nowhere in it. Nobody (that I know) believes that " all modern Constitutional law and Supreme Court decisions are the result of judges and lawmakers simply making up whatever interpretation they like without any basis in, study of, or respect for the Constitution." I suppose that bit of hyperbole might serve to make my original statement seem less reasonable; if you did it deliberately, you're putting words in my mouth to try to discredit me, which is pretty scummy.

> The alternative would be to pretend to know in all cases what an eighteenth century philosopher would decide about an issue of law in the context of modern society.

No, the alternative would be to know what they said the rules are.

(Now, I will admit that deciding how the rules they agreed on apply in a specific situation can be very complicated. But I trust "let's look at the rules and see how they apply" more than I trust "interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter, and thus that an evolving interpretation is necessary"[1]. The former view makes the Constitution the final law; the latter makes policy the master over the Constitution.)

[1] From the Wikipedia article on "Living Constitution". The quote was marked "citation needed". If you don't think it's an accurate statement of how some judges view the Constitution, make your case.

[krapp]

>No, the alternative would be to know what they said the rules are.

Problem is, parts of the text are maddeningly vague, and they didn't exactly agree in their politics, so a single, simple, objective and provably correct interpretation of those rules is not always possible.

>If you don't think it's an accurate statement of how some judges view the Constitution, make your case.

I do think that's an accurate statement. I disagree with 'people who see, for example, the "living Constitution" jurisprudence as not actually upholding the Constitution, but rather just saying what you want and calling it the law.'

One can disagree with the doctrine of a 'living Constitution' but there is more nuance and thought put behind the rationale than some conservatives want to admit. Both sides believe, in good faith, that what they're doing is upholding the Constitution.

>The former view makes the Constitution the final law; the latter makes policy the master over the Constitution.)

I prefer to see it as the former making the Founding Fathers the master over the Constitution, the latter making the people the master over it. The Constitution is a legal document, not the word of God, and nothing in the Constitution explicitly requires that it be interpreted according to strict originalist intent, so interpreting it either way is equally valid, and equally a matter of politics.

[AnimalMuppet]

Well, the former makes the people of the Founding Fathers' generation the master over the Constitution (they ratified it). The latter makes the people of this generation the masters over it.

> Problem is, parts of the text are maddeningly vague, and they didn't exactly agree in their politics, so a single, simple, objective and provably correct interpretation of those rules is not always possible.

True.

>>If you don't think it's an accurate statement of how some judges view the Constitution, make your case.

I do think that's an accurate statement. I disagree with 'people who see, for example, the "living Constitution" jurisprudence as not actually upholding the Constitution, but rather just saying what you want and calling it the law.'

The original statement was "interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter, and thus that an evolving interpretation is necessary". Deciding that "the original meaning is unacceptable" is exactly "deciding what you want and calling it the law". It's deciding, on the basis of what you think policy should be, what the Constitution should have said.

Let me put it this way: Trump may, before he's done, nominate three Supreme Court justices. Do you want those justices to decide based on what they think is "acceptable as a policy matter"? Or do you want them to be bound by what the text says?

> One can disagree with the doctrine of a 'living Constitution' but there is more nuance and thought put behind the rationale than some conservatives want to admit.

I will admit that - for at least some of those who hold that position. Others... their behavior seems to indicate that they want to rule over the Constitution, not to faithfully interpret it.

> so interpreting it either way is equally valid

Is it? We don't accept that reasoning with contracts, why should we with the Constitution?

(That is, if you have a contract, and you try to interpret the terms in ways that are outside the bounds of the words of the contract, a court isn't going to care how much you see the contract as a living document. They also aren't going to care how much you care about original intent. They're going to care about the words on the paper. I've seen it happen in court, with one side arguing creative meaning plus intent, and the other destroying them with the actual words.)

Nice discussion. I'll leave you the last word; I'm out for the next two days.

[krapp]

>Let me put it this way: Trump may, before he's done, nominate three Supreme Court justices. Do you want those justices to decide based on what they think is "acceptable as a policy matter"? Or do you want them to be bound by what the text says?

If I support decisions by previous courts, such as Roe V. Wade and Obergefell v. Hodges, then the intellectually honest position would be to concede that whomever Trump nominates has the right to do the same. I may not like it, but I do believe that is the Court's prerogative.

I don't think it's harmful to consider updated interpretations of the Constitution per se, although particular decisions can do harm even when they correctly reflect the attitudes of the time (as with Plessy V. Ferguson and segregation.) But then, obviously wrong interpretations can also be reversed. I think that we're a stronger democracy for being able to ask these questions, and consider the Constitution as evolving philosophy as much as a legal document, than if we were prevented from doing so.

>Is it? We don't accept that reasoning with contracts, why should we with the Constitution?

Well... the Constitution isn't a contract. If it were, it would be far more precise and verbose in its language, and you wouldn't have entire bodies of scholarship around the meaning of a comma.

But here we are in 2018, in the age of the internet, global surveillance, 3d printed guns, genome sequencing and a thousand other things the Founders would probably never have conceived of. If we remain bound only by the original intent of the original definition of the words of the Constitution when interpreting challenges and questions of Constitutional law, then I'm afraid the result is going to be that Constitution becoming less and less relevant to modern society.