Constitutional Originalism

[Perianne]

How else would those 'conservatives' that are pushing for progressivism of one type or another, get their way?

I've read the book this article was about, but the article itself isn't long. I find the author unwittingly brings down his own argument in favor of a "Living Constitution," both in his honest approach to the strengths of the 'originalists' approach' and in really arguing to go back to the English way of governing through 'Common Law based.'

In fact, common law is and always has had a place in US legal system. What is different is the Constitution put in safeguards protecting minority rights-which includes those of ideas:

http://www.law.uchicago.edu/alumni/m...fall10/strauss

Interesting reading, Kathianne. I am slowly going through it. One thing I notice is his leaning towards the common law approach. For example, he says:

Originalists do not draw on the accumulated wisdom of previous generations in the way that the common law does.

If so, how would/could he possibly explain gay marriage rulings?

I find his arguments flat. I say that with the caveat that he is infinitely more knowledgeable about the law than I am. However, HE is writing about ideas and not necessarily anything concrete.

[Kathianne]

Interesting reading, Kathianne. I am slowly going through it. One thing I notice is his leaning towards the common law approach. For example, he says:


If so, how would/could he possibly explain gay marriage rulings?

I find his arguments flat. I say that with the caveat that he is infinitely more knowledgeable about the law than I am. However, HE is writing about ideas and not necessarily anything concrete.

He's not an originalist and he is making claims about those that are that aren't fully true. All modern law contains common law.

[Perianne]

He's not an originalist and he is making claims about those that are that aren't fully true. All modern law contains common law.

Including the latest rulings on gay marriage?

[Kathianne]

Including the latest rulings on gay marriage?

That particular law would be non-originalist, rather 'living Constitution' by SCOTUS. Fails on originalism regarding marriage laws being state responsibility.

[Gunny]

He's not an originalist and he is making claims about those that are that aren't fully true. All modern law contains common law.

One could argue the reality of common law vs the ideal. The reality is, common law applies less and less in this nation as we cater to the tyranny of the minority based on juris prudence -- a judge legislating from the bench. Common law goes out the window where the tyranny of the minority begins. We do NOT have equal rights.

Common law reflects the will of the majority. Case law caters to the minority, based on political agenda rather than right and wrong.

I'm afraid it's too late to turn it back. The weak misuse words to disenfranchise the people who created the law, and were willing to use common sense when enforcing it.