Friday, April 21, 2017

Originalism vs. the Living Constitution, the Filibuster, Executive Orders, and the Regulatory State

The untimely passing of Justice Scalia and the nomination and confirmation of Justice Gorsuch to fill the vacancy on the Supreme Court has raised several interesting constitutional and legislative issues. 

Originally intended to be the court of last resort for constitutional cases relating to our founding document, the Supreme Court has become a third legislative body that reflects the power structure in the Senate and the Executive Branch.  Rather than examine the legal scholarship and honesty of the nominee, senators on both sides of the aisle attempt only to determine whether he or she will support a specific political agenda. 

To most lawyers, the written word matters, especially in a contract that spells out the obligations, restrictions, and permissions that bind those who sign it.  An individual would be ill-advised by counsel to sign a “living” contract . . . one with terms that could change at the whim of the interpreter at any given time. Legally, the entirety of a binding contract resides within the four corners of the paper on which it is printed.   Representatives of the thirteen original states who signed the Constitution, as well as the citizens of each state through their ratifying conventions, had the very real expectation that those words would be honored and adhered to as the basis of the rule of law, applicable to all, equally, unless amended or revoked according to its terms.


  1. If I may, there is a linkage between the current mindset that the Constitution is a "living document" and demise of the Judeo-Christian world view. We currently live in a culture that has abandon the concept of objective "Truth". There are no such things as absolutes, standards or even truth itself. Everything is relative to the person viewing or experiencing it. People are rejecting the biology of two sexes. Sex as in male or female has been substituted with gender, with your "gender" being what ever newly invented term you wish to use, including new gender pronouns of your choice. If I state that "identify" as a one-eye one-horn flying purple people eater, and my preferred pronouns are fe, fi, fo and fum, then magic happens and I become what I identify as, demanding that reality and society conform to my wishes. The distinction between sane and insane is blurred. Now, by stating the Constitution is a living document, means one can change at whim the meaning of words both in how a word is defined, and its implied meanings. It allows a judge to expand the use of government power rather than limiting it via object truth. It allows for a judge to say; the Constitution says what ever I say it says. It allows for finding new rights. It allows for Supreme Court Justices to make new laws when a court case is brought before them, or to negate a law if they personally don't like it. By ruling on what is "Constitutional" the nations overall culture and moral values can be changed. Examples? Reading the Bible and using its teachings in the public class room is unconstitutional (know that commandment, You shall NOT commit murder). It has been ruled constitutional for a woman to murder her unborn child for any reason what so ever and to demand that others pay for it. Therefore, if you wish to have your political world view imposed on others then you need a living constitution. If you world view one of limiting what others may do to you and what power they have over you, then you need to have an original constitution.

    1. Very good. Thanks.