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06:11 AM on 06/06/2011
In nearly two hundred fifty years, we have passed only a couple dozen Amendments to that document.

One reason for this is that, somewhere around 1950, and partly to expedite Endless War, Inc., we abandoned the thing altogether.

We wanted Endless War, Inc., so we stopped declaring war, so we stopped having to renew authorization for it every two years.

When the Supreme Court decided one day that it was a Privy Council, a de facto monarch in judicial clothing, no one objected. And, no one rewrote the Constitution to define what its role should actually be.

We built a stone temple in which to enshrine these documents even as we ignored what they were saying. We stopped writing "the book of our Republic," and mummified it instead.

A nation is a work in progress. As generations come and go, that nation must constantly re-examine itself and must constantly adjust ... as it may deem necessary ... the over-arching framework of laws and principles that govern it. What it must not do, however, is to ignore that framework and those principles.

Firearms have a "safety" for a reason.
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Dredd
Our government is a wartocracy.
06:13 AM on 06/06/2011
Sundialsvc4,

"somewhere around 1950, and partly to expedite Endless War, Inc., we abandoned the thing altogether" ...

Indeed. That was at about the peak of sanity it seems.

http://blogdredd.blogspot.com/2011/05/peak-of-sanity-3.html
04:40 AM on 06/06/2011
The conservative judicial activism you describe in your last paragraph squares with the definition of originalism you provide that courts should exercise judicial restraint unless the "original meaning" of the text clearly mandates a more activist approach only -- ironically enough -- by recognizing the Constitution as a living, evolving document allowing a contemporary interpretation that is then taken as the original meaning. Bet you didn't know our founding fathers were all secret clairvoyants. The real conservative judicial rule is "do what you want" and hope like minded conservatives up the food chain protect your decision.
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FresnoSanity
My Micro-Bio is empty.
09:25 AM on 06/06/2011
Since they have Rush on speed dial, they get the Don’s blessing before they ever issue a proclamation.
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zetacplus
Conservatism has failed America
04:12 AM on 06/06/2011
Great article!
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Uncle Bill
Socratic method survivor
03:56 AM on 06/06/2011
I've yet to see an originalist demand that all states comply with the fifth amendment's requirement of a grand jury indictment for felonies or address why the incorporation doctrine under the 14th shouldn't apply.
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Berettasskeeter
The Lord will provide
11:35 AM on 06/06/2011
Read Thomas Sowell.
Semper fi
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Uncle Bill
Socratic method survivor
05:55 PM on 06/06/2011
Do you have a link to Sowell addressing the incorporation doctrine and the Fifth Amendment?
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Andrew Locascio
01:45 AM on 06/06/2011
The Gang Of Five will use this same conceptual blank check to strike down not only Barack Obama's health care law,but the single payer system taking shape in Vermont and any other proposed single payer Medicare-For-All system.

"It was clearly the intention of the founding fathers that quality of health is not a human right,but the right only of corporations and those same corporations have the God given right to provide this care only to those who can support the health of corporations by meeting thier price.Therefore,anyone who cannot pay for health care does not have a right to it's access.More importantly,we believe it is against those same Constitutional interests to support the health of those who do not deserve such care-indeed,they do future generations of our nation a great service by expiring when they no longer can pay for such care. They then die as they deserve to-as the birds of the sky and the beasts of the field. The ugliness of such deaths is unfortunate-but just in the eyes of the founders' will." -Judge Scalia in the 2012 Supreme Court Barack Obama Vrs. Citizens United Decision

You watch. Then they'll use the same logic to eliminate unions as unconstitutional.
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WoodyCPM
Now what?
06:36 AM on 06/06/2011
Did Scalia actually write that or are you making that up? I know he's a jerk, but if he actually wrote that, that's appalling. He should be thrown off the bench.
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multidoc
Re-animating the dead since 1922
09:07 AM on 06/06/2011
It's imaginary. Note that it's dated "2012". But we aren't too far from it.
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LeftRight
TANSTAAFL
10:23 AM on 06/06/2011
He made it up, as you can tell by the fact that he says it's a 2012 decision. But knowing Scalia.... I wouldn't be too terribly surprised.
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Indigo1941
Time traveler.
06:52 AM on 06/06/2011
The 2012 Decision? I abhore false prophecy! But you know, that's as reasonable as much that has already been said and every bit as logical as most of AynRandianism.
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William50
01:42 AM on 06/06/2011
We have coming up an election. So, would you agree to put on the ballots in every state and in every election a non binding vote on the following; Ten commandments in legal halls. Prayer in schools. making drugs the same as booze both in price, taxes and prosecution. Gun ownership. Opinion on wars, each war an agree to stay or get out now. A president has to allow congress no matter what the emergency is using the military a vote to continue after thirty days. A four dollar per paycheck by everyone that the entirety goes to rebuild America. (this one can not be run by government or banks) Regulations on banks to control interest.
I could go on, you could add some here too, the idea is to give America a real voice on opinions to our government. It is We the People not by order of the judge!
01:34 AM on 06/06/2011
Originalism is hardly a new concept, Justice Taney used it as the backbone of the Dred Scott decision.

"The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted."
- Chief Justice Taney, Dred Scott V Sandford
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Jim Pasterczyk
Banned!
01:25 AM on 06/06/2011
A more accurate term for the current "conservatives" on the court would be reactivist, and their organization the Confederalist Society.
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Romeover
Civilization is for weaklings.
04:58 AM on 06/06/2011
"Reactivist"? Hmmm. Maybe "recidivist"?
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ChaCubed
It's a lie. Goodbye.
07:49 AM on 06/06/2011
Regressionists: undoing all the progress we've made and returning us to the days of robber barons and carpetbaggers and might makes right.
jackstpaul
What am I supposed to write here?
01:16 AM on 06/06/2011
I think the issues are far too complicated to address here. I find the article quite lacking. Something longer on just originalism, spelling out the arguments of all sides for a central problem or two that is merely referred to here by assertion, would highlight the approach in its own words and in critique and opposition. The debate needs to be reified more than it is here. Too much is attempted here, though I appreciate the effort to educate those of us who are not well-versed in the topic. It is of course as crucial and fundamental a political issue as there is, so it is an extremely worthy endeavor.
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Steelsil
Warren/Grayson 2016! Yes We Can!
01:12 AM on 06/06/2011
All men are created equal went hand in hand with slavery based on racism - you can't reconcile such contradictions based on what they 'meant' to the originators.
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Steelsil
Warren/Grayson 2016! Yes We Can!
01:11 AM on 06/06/2011
All men are created equal went hand in hand with slavery based on racism.
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CalSailor
Christian, therefore liberal
12:40 AM on 06/06/2011
A question I wonder about: If the Constitution were being written today, and was essentially the one we know, and the framers were deailng with the Bill of Rights, would the Second Amendment survive? At the time of our Constitution (late 18th century) guns were a tool for the average individual, especially among those who did not live in the villages along the east coast. They were necessary for obtaining meat from game, with no local police forces the only law and order there was, were used in the defense of the nation, etc., and were barely a step up from a club..they were not very accurate, took a relatively long time to reload, and enabled the nation to survive against an armed foe, etc.

BUT...given the current realities of the power of automatic weapons, with their rapidity and the ease with which they can be used...and are being used to terrible effect on the streets of our cities, with military forces, national guards, etc. Would the framers include a Second Amendment? What would it say? What would be the purpose of a Second Amendment today?

Pr Chris
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Steelsil
Warren/Grayson 2016! Yes We Can!
01:13 AM on 06/06/2011
Teabaggers have deluded themselves into believing that they could fight a war against tanks, airplanes, etc with the kind of weapons they possess, because they are incapable of rational thought.
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mackbolan
Libertas inaestimabilis res est
03:20 AM on 06/06/2011
how did the zulu make out against the british...
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Tulka2
Solidarity. Courage. Humor.
12:39 AM on 06/06/2011
And besides... the elephant in the room it is that it is deeply disturbing to be told by white men why centuries dead white men should rule our lives for ever after with their original intentions.

I respect the framework and the spirit the framers held towards each other. The ones who wrote it felt like peers and it shows. We should continue to regard each other as peers.
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maslin
At 6 bn km, it's mostly small stuff.
03:33 AM on 06/06/2011
Simple concept, but many people seem to have a tough time with it.
11:59 AM on 06/06/2011
They don't have to rule over us. We can amend those rules. We can even amend how we amend those rules. Originalism is the more pro-democracy interpretative philosophy. Laws are only changeable by the people, not by a few reclusive men/women wearing robes and wigs.
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Tulka2
Solidarity. Courage. Humor.
06:25 PM on 06/06/2011
Nice words, but as long as money buys government.... even the Supreme Court, as it turns out, we none of us have a chance except those of us who have the money to buy government. 
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bielymedved
Primum non nocere
12:37 AM on 06/06/2011
Scalia and his mini-me shifted to textualism which has its own problems as they are not capable of reading the entire C, and the text is of course not always clear and sometimes contradictory. It OUGHT to solve the problem of 14th amend equal protection clause, because though arguably the 3 post CW amendments were focused on former male slaves, the 14th SAYS "nor deny to ANY PERSON within its jurisdiction the equal protection of the laws." Any person means regardless of age, gender, or even nationality. Most of these yahoos simply reverse engineer or shift when needed in order to intellectually justify the position they wanted to take.
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Steelsil
Warren/Grayson 2016! Yes We Can!
01:14 AM on 06/06/2011
Scalia is far more interested in what the Pope says than in what Ben Franklin and George Washington said.
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Jim Pasterczyk
Banned!
01:23 AM on 06/06/2011
Scalia is far more interested in what he thinks the Pope should say than what the Pope actually says, and he'd prefer it in Latin.
12:13 AM on 06/06/2011
Isn't it amazing how ALL our founding fathers were Goldwater conservatives
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Tulka2
Solidarity. Courage. Humor.
12:31 AM on 06/06/2011
Good one.
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Steelsil
Warren/Grayson 2016! Yes We Can!
01:16 AM on 06/06/2011
Our founding fathers were extreme radical liberals by the notions of the time, just as Jesus was a pacifist who urged charity on misers - and the founding fathers never mentioned Christ because they thought the whole Trinitarian miracle working religion was absurd.