In light of the President's new nominee, I wanted to address Eric's post from the 18th of last month. I have to disagree.
In one sense, Eric is correct. Idealogues can twist the meaning of texts in their favor. This, however, does not negate the actual meaning of those texts. The debate among liberal constitutional scholars, at least honest ones, has shifted from "what did the authors mean" to "how should we interpret the Constitution in light of present moral/political circumstances". On the other side you have conservatives and libertarians who would adhere to the Constitution's intended meaning despite outcomes that may offend modern sensibilities. And sure, there are conservatives and libertarians who would depart from original meaning, but they are essentially taking a similar path to the liberals'.
In other words, the original meaning and intent of the framers is in large part settled. There is little to debate about. The argument is whether it should guide jurisprudence, which, to me, is a no-brainer. If you do not adhere to the meaning given by its authors, what meaning do you give it? As Justice Scalia argues, you give it the meaning that 5 justices want it to have. This is clearly anti-constitutional, meaning judges may change how our political order is constituted. The idea of a constitution is exactly the opposite of what liberals claim it to be. A living, ever-changing constitution is no constitution at all. The Constitution, it seems self-evident, is only changeable through the amendment process it provides.
Again as Scalia notes, 70 years ago everyone shared his jurisprudence. The problem we face now is not that of judicial Derridas (though it arises from time to time), but of those who are simply in conflict with what they see as shortcomings of our Constitution or constitutionalism in general. Thus, they have sought to invent modes of judicial amendment and are ever attempting to legitimize them to reach ends the Constitution simply does not mandate or contemplate.
Not to borrow from Scalia too much--but he has it right--what informs this informal amendment? And the skeptic's answer is, our moral and political preferences. We make the constitution mean what we want it to mean not what it actually means. Thus, the constitution is destroyed by our present moral preferences it was meant to moderate in the political process it established.
Sadly, we have come to the point where one political party believes originalism is an unacceptable jurisprudence. When the Democrats do not win in elections and legislatures, they go to the courts, and if the courts do not give them what they want, their desires are completely frustrated.
