Under Construction

[libertango]

A piece in the New York Times about how Republicans are preparing to oppose any nominee Mr. Obama brings forward to replace Mr. Souter.

Simultaneously the saddest and most unintentionally funny passage:

"If (Obama) nominates Judge Sonia Sotomayor, they plan to accuse her of being “willing to expand constitutional rights beyond the text of the Constitution.”"

Which is to say, Ms. Sotomayor is a strict constructionist who's read the Ninth Amendment, and they haven't.

Just to remind everyone, here's the Ninth Amendment to the US Constitution in full:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Or, in more colorful terms: "Dear Literalists: We're not going to put every right the people have into the black letter text of the constitution. That doesn't mean they don't have those rights, though. Drop dead. Love, The Founders."

In other words, the fundamental bankruptcy of original intent -- that is, interpreting the Constitution solely as the Founders would have understood it -- is this:

What if the original intent of the Founders was that the Constitution shouldn't be interpreted in light of "original intent"?

And as Exhibit A, I would point you squarely at the Ninth Amendment.

I know I'm not the target audience, but if the rap against Ms. Sotomayor is that she's read and understood the Constitution in full, while her critics have not... Well, more power to her.

More importantly, though, the fact that opponents are gathering ammunition now instead of waiting and judging any given nominee on the merits is about as close to the definition of "prejudicial" as I can think of.

Comments

[evillinn.livejournal.com]

I keep meaning to pop my head in here to mention that I really appreciate your LJ, and in particular posts like this.
As a full time studentn and full time employee, I only have so much time (and energy) to devote to some aspects of current events. I rely on the intelligent, articulate interpretations of a few folks on LJ to keep an eye on things and share them.
So...thank you!

[holyoutlaw.livejournal.com]

Another fallacy of the "original intent" argument that occurred to me recently is that it implies the original intent was monolithic, that there is no compromise or negotiation in the Constitution or the Declaration of Independence.

Quite the opposite is true of course. The only reason this occurs to me now (so late) is because I've just read a John Adams biography and we watched the John Adams miniseries that was broadcast on HBO.

[hal-obrien.livejournal.com]

Well, thanks for your kind words. I tend to react badly to praise, because I rarely believe I deserve it. Right now, though, this is very helpful and affirming at a needed time, and I thank you for it.