On Oct 27, 2009, at 10:47 PM, Michael Pollak wrote:
>
> ...Scalia's line that "the constitution is there to constrain us" is
> a separate argument. It's a second level defense of his theory of
> "originalism." What he's saying in those two sentence, that
> originalism is the only consistent doctrine because only it is
> consistent with this essence of a constitution. It's as hell glib,
> but ideologically very snappy.
>
> As far as our desires are concerned, originalism is the worst
> doctrine ever invented, and Scalia invented it, so I hate him for
> it. But I wish someone on the left would invent an equal and
> opposite interpretive doctrine that was as politically snappy and
> legally effective as his...
It may not be "snappy" or "legally effective," but the only intellectually solid refutation of Scalia is *literalism*--the Constitution means exactly what it says, from the preamble through the whole Bill of Rights. It is "ordained" and "established" by *the people*. "People" ("we" proves "people" to be the plural of person) means all the persons. "Rights" pertain to people as persons (the word citizen does not appear in the Bill of Rights) and all people have Constitutionally protected rights, of a dignity equal to those specifically enumerated, that cannot be "denied or diaparaged" merely because they were not enumerated in the Bill. The Federal government has no power to enact laws not "pursuant to" (consistent with) the Constitution, or not specifically authorized by it. etc., etc.
That this is contradictory to the whole judge-made legal structure of the modern US capitalist state goes without saying. Which is why literalism is the only literally radical approach to Constitutional interpretation. There is no Scalian "essence" of what a constitution is outside of his own dogma. The Constitution is law, the "supreme law of the land." Judges are sworn to uphold every word of it. Scalian "originalism" is actually totalitarian--it gives judges like Scalia and the fascistic crooks who appoint them the right to determine the "law" with total arbitrariness on the pretext of their own arbitrary proclamation of "original intent." It was the unspeakable Bork, the previous face of Scalia, who called the Ninth Amendment "a pimple on the face of the constitution."
Shane Mage
> This cosmos did none of gods or men make, but it
> always was and is and shall be: an everlasting fire,
> kindling in measures and going out in measures."
>
> Herakleitos of Ephesos