Friday, October 12, 2018

oakland note about constitutional law

A seed—for an oak, let’s say—is to be known through the growth that results. No two oaks look alike because environmental happenstance is different for each. The origin provides for un-templated adaptation. The seed is a potential for generativity whose exact result cannot be predicted by analysis of the genome. Mutation happens and survives because mutation can be adaptive. Genomes that allow for adaptive mutation are superior to genomes that do not.

So, too, for constitutional law. A constitution initiates rules for a game of political evolution that also provides for changing the rules as time requires. There is evolution, and a point in that evolution—an era, let’s say—becomes the basis for understanding the beginning which has evolved.

Ultimately, there are no origins, as the lineage of humanity—of being—traces back into an indiscernible genesis from an incomprehensible Beginning.

So, that’s an effusive preface for asserting that originalism in constitutional jurisprudence is invalid.

Today, a professor of law provides a rationale for originalism that I easily debunked.
Mr. McDonald, a SCOTUS nomination is such a big deal because “the American people are [not to be] robbed of their ability to have a say about the rules that dictate how they live.”

“Our nation’s founders would blanch to see how different the court is today from their conception of it” because the American people have Constitutionally evolved a history of interests that have settled into institutions far more concerned about relationship to existing law than was available when the Founders set up parameters for shaping and implementing law.

As America is now a highly advanced nation of laws, it’s necessary that the SCOTUS have an importance that wasn’t focal before there was so much law by which to orient our social lives.

The history that has taken American constitutionalism beyond the vision of our Founders is the extended “Assertion” of American will, across generations, that has given to existing law the orienting importance that it now has.

The Founders were not establishing the 18th century as the basis for the future. They were establishing the basis for living futures constitutionally—through a constitutionality which would stay alive to make the history of America evolve, not settle in a given era. [link to comment at the Times]
Oct. 30 update: I see that the esteemed American historian Joseph Ellis would agree, finding any claim about a Constitutional basis for originalism to be a “…‘fiction,’ easily discovered by any judge who cares to see it.”]
Indeed, if Justice Kavanaugh is as devoted to “the American rule of law” as he avows, then he’s not an originalist. (I hereby predict—as I have in comments at numerous news articles, the past few weeks—that Justice Kavanaugh will become a swing vote—i.e. [non-U.S. readers], sometimes ”Conservative,” sometimes ”Liberal”.)