If Bush Did It

At the risk of feeding the trolls, I thought some of the liberal contributions to the comments threads in our earlier discussion of the courts and the Constitution were rather instructive (if also a bit puerile). Whenever the actual text of the Constitution was brought into the discussion, the liberal response was that the Constitution-quoting conservative was either living in the past or interpreting the highly technical document too literally. Whenever the intent of the Founding Fathers was discussed, we were reminded that some Founders supported slavery. Yet the same liberal commenter(s) still insisted that the Constitution was very important, as long as the Supreme Court gets to decide what it means. To believe that the Constitution can have a meaning independent of judicial whim is, apparently, to argue that Rush Limbaugh gets to decide what is constitutional. Or something. Now, I know there are far more sophisticated liberal arguments on this subject than these. But I don’t think that these basic prejudices are confined to a few blog commenters. The old understanding of the Constitution held that ratification — for both the amendments and the document as a whole — was the process by which the states and the American people delegated powers to their federal government. What the informed ratifying public thought it was ratifying therefore matters. The “living Constitution” interpretation is that the ratifying public’s view doesn’t matter as much as what judges think phrases like “cruel and unusual punishment” should mean. These views of the Constitution are worlds apart.

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Constitutional Incoherence