"Originalist approach" is more than a good starting point it is the indispensable starting point if one is not indifferent to the tyranny which must inevitably result, in the absence of the rule of constitutional law, of rule by decree by nine berobed shamans who will increasingly wield their unaccountable power in ways more akin to tribal witch doctors than to judges. By declaring originalist approach to be "not a universal solvent," you tacitly dismiss it in all cases because it might not be applicable in a few. More, the examples you cite to justify junking the concept of originalist intent are not apposite. For example, the issue of "cruel and unusual" punishment, clearly and comfortably falls among those matters easily determined by original intent. A legal scholar should have absolutely no difficulty for example, in determining the state of thought at the time of the ratification of that amendment to determine whether the execution of minors constituted cruel and unusual punishment. Scalia has recently made this abundantly clear in his scathing dissent. It is not right to finesse and distort the "cruel and unusual" provisions of the Constitution by musing whether modern notions of normality and cruelty should inform our present day understanding of the " cruel and unusual" provision.
That is why the Constitution comes equipped with an AutoCorrect tab known as the amendment process. If you do not like executing minors, you are free to arouse your fellow citizens and amend the Constitution. But if you choose instead to amend the Constitution by stealth, by saying that the plain meaning of words clearly established at the time of the framing are simply no longer controlling because we have new and fresh definitions, then you have not the rule of law but rule by berobed tyrants.
Similarly, it is not true that no one knows the original intent of the Second Amendment. I believe it has been well established that the Second Amendment provides a direct right to individuals to bear arms. I believe the scholarship supports this view. If you disagree, you can present your scholarship about what was originally intended in this amendment and judges, who are not entirely cavalier about their oaths, will not be ruling according to what they believe should be social policy about concealed weapons, but about the balance of persuasive evidence concerning a historical truth. This is not the same thing, and there is a world of difference between honest judges who undertake to discover historical reality as opposed to berobed tyrants out to shape society to their liking. The first describes society operating under constitutional law and the second a society on its way to an elitist tyranny.
This concept is worthy of a moments pause to consider its application to the choice of judges. Once appointed, a Justice is unaccountable except under impeachment which can be avoided by "good behavior," or, perhaps, by monkeying with jurisdiction. So, for practical purposes, we are powerless and defenseless when a judge claims he is elucidating historical truth but in reality is shaping the world to his liking and covering his tracks with such devices as foreign law. If Judge Bork disagrees with me about the origonalist meaning of the second amendment, I am nevertheless confident he is not working backwards from his predilections about guns. Can you say that about this nominee? Her fealty is to a higher power.
You ask, " Was the intent to accommodate changing economic conditions? " by this I take it you are referring to the ever broadening application of the commerce clause to empower the federal government, especially with the elastic clause. But this is the wrong question. The proper question is, did the framers intend the "changing conditions" which are the subject matter of the lawsuit being adjudicated by the Supreme Court to be regulated by the federal government or by a state government? Here we tend to get tangled up into issues of whether the commerce to be regulated is itself interstate commerce or "affects" interstate commerce. It is in this context that we often hear that the founders could not have anticipated the age of jet travel therefore their original intent is useless as a guide to proper constitutional adjudication. This is false. Does anyone doubt that jet travel of 500 miles an hour is inherently an interstate proposition? These problems are not nearly is murky as opponents of original intent would have us believe.
Finally, there is a whole world of regulation conducted by the states which are best left undisturbed and would, under an originalist interpretation, be left undisturbed except that they run repugnant to judges' notions of how the world ought to be. On the social side, a state can no longer prohibit homosexual sodomy. A barber can no longer decline to cut a man's hair because of his race. The problem with these rulings is that they embark the republic on an increasingly undemocratic course in the name of social justice.
Essentially the Constitution, which crafts a representative democracy, and is replete with checks against the power of the majority, can be seen as an anti-democratic document. This is defensible because it is a contract. The rights of a property owner, for example, under a proper interpretation of the document, should be impervious to the desire of the majority to take that property for a nonpublic purpose. The Constitution, then, enshrines certain principles to be more important than the will of the mob. But when an essentially undemocratic contract is interpreted by the unelected and virtually unaccountable judges who, themselves are only remotely the product of the democratic will of the people, the potential for mischief is unchecked. If the democratic will of the people concludes that the Constitution itself is unfair, there is a constitutional remedy, the amendment process. But it is outrageous to suggest that the people should be left only the amendment process to correct the unconstitutional, undemocratic rulings of judges who are unaccountable. This is so because by definition those rulings are undemocratic and ultra virus the original contract. The court makes rulings in real cases which affect real people. It is insufferable to the Sons of liberty to deprive them of their birthrights by stealth.
Let me now address the issue which I believe is really and truly dividing conservatives. It is not the validity of the approach of originalist intent but the heart of George W. Bush. Judge Bork, true to his character, does not varnish the truth:
"This George Bush, like his father, is showing himself to be indifferent, if not actively hostile, to conservative values."
I think Judge Bork has hit the nail squarely on the head. The administration's climbdown yesterday on the issue of immigration supports this view. This is what I posted some time ago, indeed I've been posting to this effect on these threads for years:
The truth is straightforward, as usual. Bush is first a committed Christian, then a devoted family man who values personal loyalty to an extreme, and third, a conservative when that philosophy does not conflict with the first two. In this appointment, Bush believes he has satisfied all three legs of the stool. This is what I posted yesterday:
On the limited evidence available, I do positively believe Bush appointed her because she has been reborn. I mean that quite respectfully. I mean that he is counting on her being a new person. Most of the time it means she will vote conservative. But I honestly do not think Bush appointed her to vote conservative. I think he appointed he to vote in the SPIRIT.
Rather than a Trojan horse, I think Bush saw her as wise as a serpent - in keeping with the Biblical injunction to the Saints to comport themselves thus.
Thus, in the Bush calculus, this appointment is made not because the individual is conservative but because she fits the demands of a higher standard. Unfortunately, this is the only standard which this individual answers. As Brooks and Bork have so scathingly demonstrated, this nominee cannot write as well as you do. By the accumulated evidence, she has not seriously thought about any of the issues which you have written about. By virtue of all the evidence before us, therefore, I conclude that you are a better qualified candidate for the Supreme Court of the United States than Harriet Miers.
