Bring it on back?
ml”>piece from Newsweek explores (and criticizes) tea party veneration for the Constitution. What I found most interesting is a distinction between two types of “originalism” in Constitutional interpretation.
While conservatives generally prefer the second approach, many disagree over how it should be implemented—including the Supreme Court’s most committed originalists, Antonin Scalia and Clarence Thomas. Thomas sympathizes with a radical version of originalism known as the Constitution in Exile. In his view, the Supreme Court of the 1930s unwisely discarded the 19th-century’s strict judicial limits on Federal power, and the only way to resurrect the “original” Constitution—and regain our unalienable rights—is by rolling back the welfare state, repealing regulations, and perhaps even putting an end to progressive taxation. In contrast, Scalia is willing to respect precedent—even though it sometimes departs from his understanding of the Constitution’s original meaning. His caution reflects a simple reality: that upending post-1937 case law and reversing settled principles
would prove extremely disruptive, both in the courts and society at large.
The piece goes on to criticize the Tea Party’s “Constitution in Exile” beliefs. My own distaste for Constitution and history worship has been well documented on this site, but I wonder if this distinction makes any difference in the final analysis. After all, if the Constitution really is in exile, maybe there is an argument responsible citizens should try to bring it back.
Photo by Flickr user bsryan used under a Creative Commons Attribution license.