re: #40 Obdicut

No he doesn’t. He’s perfectly willing to depart from originalism when it suits him.

Sigh. Women’s rights weren’t ruled Constitutional because they were popular, but because they fit the philosophical basis of the Constitution— that we are all equal.

The philosophical basis of the Constitution is not the Constitution. It’s a background to it. The philosophical basis of the knight’s move in chess is that it’s the eccentric piece that can jump. But that doesn’t mean the knight has the right to jump from any square to any other that’s not along a rank, file, or diagonal.

Women’s right to vote was never “ruled constitutional”. Back in the day, the Supreme Court knew the proper limits to its authority. If, unjustly and immorally, the current voters decided to deny women the right to vote, then women wouldn’t have the right to vote.

And that’s how it was, because the SC is not, of itself, the supreme law of the land. It does not make law. Or, more accurately, it didn’t always make law. Now, it does. It’s a second legislature.

What happened was that the people came to understand that their rules on who could vote were inconsistent with the spirit of the Constitution, inconsistent with basic morality, and in need of reform. Denying women the right to vote became unpopular—-men saw the error of their ways. So they amended the Constitution and put that thing right.

By doing it that way, they both got the right result, and got it the right way. They preserved the precedent that changing the law is done by changing the written text of the law, rather than going in and debasing the currency of the whole idea of law just to fix that one thing.

From the time of Hammurabi, the essence of law has been that it’s written (in his case literally) in stone. It doesn’t change unless it’s explicitly changed. One knows where one stands, and the law is the same for all, and the same next year as last year.

As things now work, laws mean anything and nothing. The direct, explicit text of the law can be stood on its head by a string of enlightened court rulings and executive memorandums. Everybody’s happy. Because the new meaning of the old words fits [somebody’s take on] the philosophical basis of the Constitution.