Hi Nash,
Thanks for your reply, I don't have much time to post at present, so hopefully I can be relatively succinct for the first time in recorded history.
Originally posted by Nash
[SNIP...]
Now, I just pulled some of your words that I think get to the core of it: That there exists essential universal truths, and that these must prevail despite the whims of the populace.
You said it well, supported it adequately, and I agree with you.
Because I too believe the same thing. Very strongly, in fact.
Here's the problem.....
If we seperately wrote out a list of these truths and put them down side by side, they would look different.
Square that.
I think you've hit the nail on the head. You see that's
exactly the function of a constitution in government, it acts as a timeless arbitrator between your views and mine. When it comes to a conflict between what you believe to be true and what I believe to be true, we go to the Constitution and it tells us which position will prevail.
That's why an originalist interpretation is so critical, because it is the only one that preserves for the constitution that essential objective role as the arbitrator of all disputes.
Let me give an example; when two parties have a dispute, they go to the originalist judge, and the judge impartially refers to the constitution and then rules in accordance with its guidance (accord to the original intent of the framers) - regardless of what he or the litigants might believe or prefer.
On the other hand, when you have a positivist judge, the judge essentially assesses which position he prefers and which he thinks is true, and then declares his decision, appealing to criteria
other than the original intent of the founders (international law, "penumbras", etc.) Thus he believes the society progresses, when in fact what is happening is, he is dictating his own beliefs to the society.
Some would say, "Perhaps, but if he doesn't do that, then nothing is going to ever change in the country for the better! We'll remain stuck in the 1780s, and no progress will ever be made"
The answer to that is "Not so" on two accounts. I'll only touch on one for the sake of time. The Constitution has within it, a mechanism for change via ammendment. Those ammendments are made in the
legislature not the judicatory and they are rightly difficult to bring about. This way gradual change is introduced via an overwhelming consensus within the country, not the whims of an elite oligarchy.
- SEAGOON