Put another way, if morals change over time, and morals and laws are at least related if not intertwined, then why should we be governed by stale or obsolete morals and laws, especially those that we now find repugnant?
We don’t. That’s how and why Plessey gets replaced by Brown, but under the same generalized framework, which need not change.
It’s subtler than that in most cases — must we have a constitutional amendment every time morals develop?
I suspect you’re using the term “morals” differently than I would. The Constitution does not deal in “morals”, but in outlining the responsibilities and limitations of the federal government. It’s primary differentiator between itself and the governing documents of other nations is that it refers to the rights of man as being innate, and then tells the government it can’t fuck with those innate rights.
Who says when and how could he or she possibly pinpoint it? The biggest problem with Originalism, as I said in my long bullshit piece, was that it condemns the present to be ruled by the dead hand of the past.
True. The question is if you view that fact as a feature or a bug.
In my view, it’s a feature. I can live in the USA knowing that I will always be in place that I have (example) freedom of religion, even if the nation goes full on atheist and decides that religion is the bane of mankind.
So, I suppose the logical question then to be asked is “What is it that you want where you see the Constitution in the way?” Most on the Left start that discussion with gun control; they’re quite right, we can never have gun control laws which *substantially* alter the curve of violence in the US without an amendment (but with the US Left going stark, raving mad after the Kavanaugh decision, and threatening senators wives because of their husband’s votes, most of us are willing to accept the good with the bad on that one.)
That said, I don’t think I even did what you say I did. Can you point me where in the piece I “judge[d] history by 21'st century standards”? I call people who owned slaves “slave owners” and other people who proudly proclaimed belief in the inferiority of other races “racist.” Is that what you’re referring to?
If you didn’t do it, I retract the accusation.
If you don’t see morality as such, however, then as far as I can see you’re confined to temporal and cultural relativism of which I suspect you are as little a fan as I am.
I personally believe that morality is absolute, but is defined by God’s law and not the laws of man or a governing document.
This creates complications. Let’s suppose a married man comes from a culture where every man has a mistress. If he takes a mistress, that’s still immoral as I see it, but the fact that he is behaving in a way that, to him, is moral, is a mitigating factor in how I view him and the situation. To him, what he is doing is acceptable in his society.
Clearly, the ability to see beyond that time’s and culture’s dominant moral precepts existed at that time and in that culture — as is often the case.
What is acceptable to society always evolves. I don’t see this as overly relevant. There were many slaveowners (Jefferson being another) who were doubleminded on the issue. It was not all that unusual, I don’t expect.
In either your view about morality or mine, the problem of being ruled from the grave remains, and Article V is simply an impractical means for updating our morality in real time. As I argued above, I think the Founders were aware of that and the Ninth Amendment is the key.
I see Article V from both sides. At the times in our history when it most seems the Constitution needs to be amended, it becomes the most difficult. This provides a solid framework of political stability which we benefit from.
And yes, the 9th Amendment, which is underrespected in our jurisprudence in my opinion.
Here it’s becoming apparent that you didn’t read my bullshit. I mentioned that Originalism has never been “fully explained,” and what it is is the subject of vigorous debate, with many self-proclaimed Originalists contradicting each other. So we agree on that.
However, your general definition of Originalism is really just a definition of the Constitution itself.
Not really, because Originalism is a juridical philosophy. Fully fleshed out, it can be stated as (a) the Framers knew what they were doing, (b) they created a system of government that would never need to be radically altered throughout the ages, so (c ) common sense dictates that when we’re presented with a dilemma, try to solve it according to the governing document they left us.
Other “Originalists” might try to get more detailed about it, but nobody would quibble with the above.
And nothing you said undermines the moonbat’s notion of a living document.
I’m sorry, but I think it does; it manifests in significantly different legal opinions. If a dilemma comes before the Court, and deciding that dilemma according to the law causes some sort of economic or personal distress, the originalist will say “we’re sticking to the law, even though this outcome sucks, and if you agree that it sucks, legislate a change”. OTOH, the “living document” jurist might come to a different decision, to avoid the distressful outcome.
If all Originalism were was “believ[ing] that the Constitution contains valuable wisdom…transmitted down through the ages…” I wouldn’t have written the article.
I suspect that if you ask all the “Originalists” on the SCOTUS how to define their own “originalism”, they’ll all have different definitions, but agree substantially on only my general principles.
Which means that you’re kind of worrying about nothing. :-)
I agree in principle that you don’t have to divine what the Framers meant when they tell you, but when is that? Through “history or The Federalist”? Oh, well, that settles it! What history — legislative history? The history of how the 1st and 2nd Congresses and the early Supreme Court executed and interpreted the Constitution? All of the above? (Yes.) And why just the Federalist [Papers] — why not the Anti-Federalist Papers? After all, it was the anti-federalists who clamored for a bill of rights — many of them hated the Constitution and wanted it not to be ratified. Madison, as I noted in my piece, mediated between the two sides (although he himself was a Federalist).
You read it all, exactly.
You then contradict yourself in your 3/5s example. From glossing over the problems with diving what the Framers meant, you then prove how doing so is not as easy as one may think.
Not sure how I’m contradicting myself, in that I agree that it’s not so easy. That’s what I accused YOU of doing. :-)
And I’m not sure what you mean by “pigeonhol[ing] each [what?] into racist or nonracist categories.” When do I do that?
Seemed to me that it was important to you to define the Framers as racist or not, so as to infer that that was a mitigating factor in the Constitution.
Hope that helps.