Originally Posted by spence
(Post 1145469)
Equal application of the law requires judges to interpret the Constitution.
Interpreting the Constitution means interpreting what the words meant when it was written, not what meaning can conveniently be conjured up today in order to approve of what the original meaning would not approve. The interpretation process is completed by applying the correctly used words, the law, to the case in hand.
If, however, you choose to agree with the argument that times change, meanings of words change, therefor the constitutional text means something different than what it originally meant, then you fundamentally agree that a constitution becomes irrelevant with time and change. Ergo, "interpreting" it is an exercise of competing personal opinions--which don't even require the outdated text to exist. Under this regime of thought, the obvious conclusion is that a binding, immutable constitution stands in the way of justice for the current society.
Think of other, non-political "constitutions" such as the rules that govern various professional sports. Do the meanings of the words change over time? Does time change the notion of how a strike is to be called? Or what constitutes a field goal? There are procedures on how to change the rules in sports. None of the ways I am aware of allow an umpire or referee to change or update the rules on the spot, nor in conference with other umpires. The rules must be changed by the governing body, not the referees. The referees only apply the rules, regardless of how they feel about them or which team they root for. And if the governing body decides that their sport is totally outdated, too quaint for current times, too unproductive, too unappealing to the present population, it can disband their sport and let it rest as a memory or object of history in museums and books, and let it be practiced for fun by nostalgic amateurs.
The same method applies to constitutional change. It must be done by the governing body, the Congress, not the judges (referees). So, either you have the Constitution and abide by it, or you discard it as being an impediment to current times and meanings.
This isn't progressive jurisprudence, it's how the branch of government operates.
Perhaps you have not noticed that the SCOTUS adjudicates (operates) in basically two ways. The Progressive way, which strays from original meanings, original intents, and original construction AS HAS BEEN DEMNSTRATED SEVERAL TIMES ON THIS FORUM. (Check it out, it's in the archives.) And the other way, "Conservative," Originalist, call it what you will, which adheres to the Constitution as written. You may have not noticed that there are competing notions such as loose and strict construction, Constitution being a living breathing document and it being an permanent immutable one, and so forth. You might want to check that out.
You're just spinning the decades old complaint by some that judges legislate from the bench, which only seems to be a problem for findings that mostly appeal to the left.
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