Wednesday, August 11, 2004

Constitutional Originalism

Alan Keyes' view of the Constitution seems plainly originalist. Problems with an originalist perspective that are hotly debated among legal scholars, of which I am not. However, a few links to some of those scholars are in order: Michael Dorf writes about originalism and the problem of "changed circumstances" citing examples from Supreme Court decisions in 2001.

In Kyllo v. United States . . . , the Court will soon decide whether using a thermal imaging device to detect heat emerging from a home constitutes a "search" within the meaning of the Fourth Amendment. What did eighteenth century English and American cases have to say about thermal imaging? The very question is preposterous.

Indeed, Atwater [Atwater v. Lago Vista, dealing with a warrantless arrest for a seatbelt offense] itself presents a case of profoundly changed circumstances. Automobiles did not exist in the eighteenth century. One might be tempted to look to analogies, such as the horse and buggy, but the horse and buggy played a different role in eighteenth-century America from the role played in modern America by the automobile, to put it mildly.

A critique by Cass Sunstein of liberal originalism concludes with:

No less than the conservative originalist, the liberal originalist does not avoid the most serious problem with all who claim to have a fix on what the Constitution really means," which is their unfortunate habit of invoking the text and the history of the Constitution when their own judgments and their own preferences are playing an inevitable role.
Of course beyond the legal problems with the theory of originalism (either liberal or conservative) are the problems with Keyes' proposition that the original intent was "Christian" as he defines it.