But the author has identified a valid problem. However, his preferred solution, the "living constitution" where judges are expected and encouraged to see in the Constitution whatever seems good to them, makes Constitutional interpretation into a Rorschach test--and results in a dead Constitution that might as well not exist. It replaces the rule of law with the rule of lawyers.
Just because it's not possible to read the minds of those who drafted the text of the Constitution and its ammendments does not justify letting bogus court decisions and wrongheaded traditions rob the people of their liberty. To paraphrase a certain highly respected religious personality, "they invalidate the word of the Founders' Contract by their traditions." The New Deal is an excellent example, and has since established a precedent and tradition of "ammending" the Constitution by the simple expedient of pretending the words mean whatever pleases the judge. The difference between the current traditions and the plain and unambiguous requirements of the Constitution as written is far larger than can conceivably be justified by the intrinsic problems of interpretation which he correctly describes.
The fraudulent idea of a "Living Constitution," as he envisions it, is neither a fair, honest, nor workable way of interpreting the terms of a contract--which is exactly what the Constitution is.
Brown decided that separate was not equal, not that equal protection, by itself, required integration. The reasoning went that the majority would never properly fund and staff segregated minority schools, but if the schools were integrated then all schools would get support from the majority. As it worked out, minority schools of that era were undoubtably better than the majority minority (that is were a majority of the students in an entire district are from a minority group or groups) do today.
Just today I heard that in Texas 49% of anglo 4th graders are performinag at the proficciency level for that grade, itself somewhat shocking and scandalous, but that Latino student were only doing so at a rate something like 25%, and black students at only a 15% rate. 15%, after almost 50 years of integration. Maybe segregation, while an abomination to me, wasn't the problem after all, or at least not the most important one? Maybe equality, or near equality of opportunity wasn't the problem. Maybe there was and is a cultural problem? If there is, it's spreading to all the cultures that make up American society, with a very few exceptions.
Interestingly, Texas students of Asian heritage did better than all the other groups, better than Asian kids in all but 4 states in fact. The interesting thing about that is that Texas has no large grouping of people of Asian extraction, at least none that have been here over a generation. Here and there there are clusters of asian businesses and neighborhoods with lots of asians, but for the most part they are fairly well dispersed. They are also mostly at the lower end of the socio-economic scale. Maybe not as far down as some other groups, but well below the middle on average (OTOH, 4 of of our family doctors have been Asian, two Thai, one Indian, and one Philipina, and I saw an immigrant (as a child) Korean dentist this week, who works in the same practice as my regular dentist who was on vacation this week.
So is the problem with Texas schools, or non Asian Texas students, or some of both? And how much of each factor?
The article seems to bear out my assertion that: The Constitution, to a large degree, is whatever at least five Justices (a majority) interpret it to be at any given time, based on their ideology, and regardless of what the Founders intended or what the citizens expect.
By focusing on original intent, strict constructionists do themselves a disfavor by making their argument too easily refuted. The issue is not what was intended but what was said. Expressions of intent in the legislature and general debate are important, as is the historical background, but the most important factor is the language of the law itself.
Viewed in this light, the equal protection clause is clear in its meaning: black males must enjoy the same rights and privileges as white citizens, i.e., as white males. If it could mysteriously be expanded by judicial fiat in its generality, why was an amendment necessary to give women the vote?
Here's a harder example though: Was legal discrimination against Chinese and Japanese immigrants in California and the West covered? If they were not covered, was it because the post Civil War debate discussed only people of African descent? No. Because this clause _says_ "all persons born or naturalized," meaning, no person not otherwise incapacitated from being a legal citizen (i.e., a woman, people prevented from becoming citizens of the United States, as the Chineses and Japanese were at some times) are covered. This means the _children_ of Asian immigrants (as persons "born" in the US) would have been covered.
What is actually said counts more than "intent" because it is the expression of that intent, and rummaging around the legislative debate and history is only useful when something is no longer clear (as in the term "well regulated" in the 2nd Amend.).
The real problem is that we actually have, for example, idiots who think the 2nd Amendment is a "collective" right. My point is that people who think that are not living in the same country that I am, and I'm not certain how much longer the 'cohabitation' will continue, because they are changing the most fundamental laws of my country without asking my consent.
The virtue of a judge consists in correctly implementing the law understood as a universal applied to particulars: but that requires the discipline not only to enforce the law in the face of popular opposition, but also to recognize that the law does not authorize judges to remedy all injustices, but only those expressed in the law.
The ultimate problem with Brest's argument above is that it violates the logical law of the excluded middle: I don't give a rats a$$ how many precedents come down the pike-- if you wind up in a situation where current case law says "not A" but the original statute says "A", somebody screwed up big time somewhere in the middle, and any judge worth his or her salt should have the guts to point that out.
Anything else is just sophistry.
The Founders were brilliant men, to be sure, but they knew very well that they didn't know everything, and they certainly knew that they couldn't see the future, and so they did not construct a document with the intention that we, succeeding generations, should simply shut off our brains and let them do the thinking for us. Look at the California state Constitution, for example - it's almost mind-numbingly specific in the subjects it addresses, the methods it proposes, and the situations it covers. Not that I mean to pick on California - many state Constitutions are like California's in that respect. But the Federal Constitution isn't like that at all - it's fairly specific about some things, like how government is to be organized, but purposefully vague about certain other things, such as the bulk of the Bill of Rights. It's a two-part document that is basically of the form "Here's how government is organized, and here's some general principles about what we think government ought not to do" - and putting the second part of that into action is left to us to do.
The Constitution relies on the citizenry to be wise and thoughtful and reasonable - it does not, and cannot, rely on a judiciary functioning as high-priests of the Constitution, divining things like "original intent" from wherever they can. Madison, Jefferson, Hamilton, et cetera - they would, all of them, rightly be horrified at the suggestion that their words were to be read as gospel, that we should essentially stop thinking for ourselves, and that is exactly what both of those doctrines require, when taken to their logical conclusions. There are too many situations that arise where "strict constructionism" or "original intent", rigidly applied, will lead to perverse results that are in opposition to the basic principles outlined in the Bill of Rights - the Constitution demands that we must think for ourselves, more so than those doctrines will always allow.
At the end of the day, discussions about the Constitution and the law and what-have-you are really nothing more than discussions about how we think the country and society should be. The First Amendment doesn't extend to cover the Internet because the Constitution, strictly constructed, says so - it doesn't - or because that was the original intent of the Founders - how could it have been? Instead, the First Amendment applies to the Internet because that's how we want it, how we think it should be, what we think the First Amendment should mean. And there are always going to be circumstances like that, where we must think for ourselves about how we want society to be, and what the Constitution should mean in order to remain faithful to those principles that those men set out for us, 227 years ago. Taking those general principles and thinking for ourselves in order to apply them to the issues of the day - that, more than anything else, was the "original intent" of the Founders.
Condi ironed a shirt of mine and my cellist colleagues before our concert in Park City, Utah about 5 years ago. She is nice. So is he.
This is not bad, but it overlooks one profound detail. The root of the tree is Christianity, and to deny the root to alter the fruit is to bite the hand that feeds.
Yeah, the key being "prudent" interpretation. See the quicksand? Now "prudent" must be "interpreted".....
Which makes Brest's whole argument a loser.
Certainly, but activism is almost always contrary to original intent inevitably results in power being centrally located which some here, I know, see as a good thing. I see it as contrary to the original intent of the Constitution and detrimental to the republic I live in.