Listen "Originalism v. the Living Constitution: The Case for Confirming Amy Coney Barrett"
Episode Synopsis
Widely misunderstood, Constitutional Originalism is not a desire to return to slavery and the days before women could vote. It's simply the belief that a judge's job is to determine and rule on the meaning of the law - the will of the people - as most recently enshrined into law. It makes no moral judgments like "abortion is good/bad" or "the death penalty is good/bad." Value judgments are left to the legislature - one of the important separation of power mechanisms built into the Constitution.
Living Constitutionalism, on the other hand, is the belief that judges themselves can reinterpret the law if they believe social values have changed since the law was last updated - they can act in the place of the legislature.
It's not that Living Constitutionalism makes bad decisions, per se, or even that Originalism makes ones we agree with. It's a question of jurisdiction, of "who decides?" By breaching the wall of separation between the legislature and the judiciary we introduce volatility, instability, insecurity, and illegitimacy into the political arena. We increase division and contention. We end up concentrating power into the hands of the few by removing it from the hands of the many. We encourage coercion rather than conversation.
Confirming originalist judges like Amy Coney Barrett is a critical step in restoring the proper role of the judiciary and healing the bitter divisiveness in our nation.
This podcast is available in written form at https://www.culturestack.online/post/originalism.
Living Constitutionalism, on the other hand, is the belief that judges themselves can reinterpret the law if they believe social values have changed since the law was last updated - they can act in the place of the legislature.
It's not that Living Constitutionalism makes bad decisions, per se, or even that Originalism makes ones we agree with. It's a question of jurisdiction, of "who decides?" By breaching the wall of separation between the legislature and the judiciary we introduce volatility, instability, insecurity, and illegitimacy into the political arena. We increase division and contention. We end up concentrating power into the hands of the few by removing it from the hands of the many. We encourage coercion rather than conversation.
Confirming originalist judges like Amy Coney Barrett is a critical step in restoring the proper role of the judiciary and healing the bitter divisiveness in our nation.
This podcast is available in written form at https://www.culturestack.online/post/originalism.
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