My Debate over the Constitution with my Buddy:
——– Original message ——–
From: “Your Buddy”
Date: 2/10/17 10:02 AM (GMT-06:00)
To: Harry Welty
Subject: Raising my flag to America’s judiciary | lincolndemocrat.com
Since you are raising your flag to America’s judiciary — see http://lincolndemocrat.com/?p=19380 —
Further, you said:
. . . I wonder if his [Trump’s] Supreme Court nominees would agree. After-all, most of them will be fans of “originalism” which exalts our Founder’s 18th century notions of Constitutional interpretation which, among other things . . .
I suspect that Scalia would say that he favored construing the text of the Constitution, instead of trying to otherwise divine what the “notions” of the founders might have been. Isn’t that why we have laws in writing?
To which I replied:
How is construing different from divining?
My Buddy’s riposte:
Construing or diving what? How are unwritten “notions”, construed or divined? Words, too, can be slippery, but they seem to be more fixed than notions; and we have the words; but where or how do we find and ascertain what the notions were?
Say what you mean, and mean what you say?
And my reply:
This gets to the old issue of the letter of the law vs. the spirit of the law. I think both are important. However, I think Scalia shortchanged the “spirit” of the law. In 1860 Scalia would have had no patience with Lincoln’s contention that the Declaration of Independence suggested that blacks and whites should be regarded as sharing the same rights. In 1954 he would probably have panned the decision of Brown vs. Topeka Board of Education.
I also suspect that from Bush v Gore to Citizen’s United Scalia tried to hide his political leanings behind his worship of “originalism” while suggesting that he was somehow holier than his colleagues who were less reverent towards the Constitution.