On Tue, 27 Oct 2009, Shane Mage wrote:
>> 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 disparaged" 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.
This is a very intelligent interpretative strategy. It's related to the one that created the privacy right in the first place. But there are several big problems with it.
To start with, you've shown the constitution can't ban buttsex or abortion. But that's never been what's at issue. Rather it's the right of the states to ban them. If you make your stand on the idea that the federal law has no power to enact laws not specifically authorized by the constitution, practically speaking it will give the states more leeway to do dastardly things, not less. (This oddly is kind of originalist -- the bill of rights originally didn't apply to states or municipal governments at all. They could abridge them all they wanted.)
Secondly, what we are talking about here is not the federal power to pass laws, but rather the power of judicial review, which isn't even in the constitution. It was created by Marbury vs. Madison -- a case many people think is a monster of bad reasoning. (And others think is a jewel of such reasoning -- so much for literalism and not needing interpretation because things are so obvious).
Thirdly, buttsex and abortion are both based on the right to privacy. And as Potter said, you can search all day and night but you'll never find that right mentioned in the constitution. Even its discoverers admitted they found it in the "penumbra" of the bill of rights.
The real basis of these rights is in the America creed. The words most forcefully centrally to them in all our minds aren't in the constitution at all but in the Declaration of Independence, that all men are created equal, and endowed with inalienable rights, and that this is self-evident.
And even then we're giving an ideal reading to "men" so that it means "humans" like it ought to.
Michael