Notes From Babel

New Deal Originalism

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Alex Tabarrok snarks at Laurence Tribe’s attempt to justify the individual mandate by the “original” meaning of the  New Deal:

Quite so; but what Tribe forgets is that the constitution is a living document. The constitution’s meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe’s interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives.

But what I can’t figure out is the answer to this question:  Who is more resistant to amending the Constitution, liberals or conservatives?  On the one hand, liberals are more fond of social and legal change than conservatives.  On the other hand, liberals have already embraced the “living constitution” mechanism to get what they want out of the small-c constitution without actually amending the big-C Constitution.  Now that the Constitution is “more than a hundred years old,” it does get harder to defend originalist interpretation in the progressive political arena.  Much to its defenders’ dismay, it can’t stand up to political reality forever.  Those defenders would do well to propose amendments that would restore the big-C Constitution’s relevance to modernity.

It seems to me that it’s liberals who have more to gain by not amending the Constitution.

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Written by Tim Kowal

February 12, 2011 at 9:35 am

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