The Anti-Originalist Bait and Switch
As I read the comments to Kevin Drum’s post on originalism, the reasonable leftist arguments go something like this:
The fallacy of originalism is that the framers weren’t originalists. The framers deliberately used vague, undefined phrases like “cruel and unusual punishment” or “due process of law” in the expectation that application of those phrases would be worked out over time, as particular circumstances arose.
Well, I have no problem with that. The problem is that they never stop there.
Once you allow that kind of interpretation in the front door, they bring all their crazy friends in through the back. Does “Congress shall pass no law” really mean that, or does it mean “Congress shall pass no law except when it’s a REALLY good idea"? “Well-regulated militia” means “nothing to see here, move along.” “Commerce among the states” means, well, everything.
Vaguely-worded portions of the Constitution should be open to interpretation. Clearly-worded portions should not. Otherwise we’ve got, as Dahlia Lithwick writes, “judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want.”