Quote:
Originally Posted by Ghoulish Delight
In that case, if people want to have the right to bear arms other than muskets, flintlock pistols, and other revolutionary-era firearms, they should either change the constitution or pass local legislation, right?
|
First the caveat: I do not subscribe to Scalia's brand of constitutional originalism so I am not necessarily a great defender of it. My point was mostly that his brand of originalism isn't particularly outside the mainstream and that just because he doesn't feel the Constitution mandates various protections of women and minorities does not mean he necessarily feels those protections therefore aren't allowed via other channels or that they would be a bad idea.
However, an attempt to respond.
In you're example, there is the question of how to apply a constitutional principle to something that did not exist when the principle was created, that is they didn't address is specifically because it was impossible to do so. You could demand that there be a constitutional amendment in the face of every new technological advancement but that is a nonsensical result (in my opinion). So that leaves simply attempting to apply the princples to the new things which will be easy to do sometimes (such as does free speech apply to words written electronically as opposed to by hand or printed on paper) and very difficult other times (how does the ability to thermally monitor private residences without ever actually leaving public spaces interact with principles on unreasonable searches)? Eventually the world changes so much that a constitutional amendment to address it would be ideal but generally it is by such dribs and drabs it can't happen.
On the other hand there are the cases where the constitutional principle doesn't address something not because the issue didn't exist (such as women being able to vote or gays being able to marry) but because at the time they were so far outside the realm of discussion that it was viewed as obviously they weren't relevant to the principle. This leaves it open for later generations of legal minds to "discover" that the old principles actually did apply to those once outside the realm of consideration areas all along.
Originalists, in my reading, generally don't have a problem with the first example while having a big problem with the latter. Though there is always the fudge factor of deciding when a specific case bleeds from one to the other.
But just as with strong states rights, most of us tend to be originalists when it gets us what we want and living constitutionalists when that is what gets us what we want (for example, many people flip sides on the question when discussing
Lawrence v. Texas as opposed to
Citizens United). While I disagree with him on many things, Scalia is much more consistent than most in living with the results of his originalist philosophy (with some glaring exceptions).
Again, I don't agree with where Scalia's philosophy would ultimately lead if rigorously implemented. But I also don't think his view is particularly indefensible, nor does saying that the constitution does not mandate gay marriage mean that one is saying that gay marriage can not be allowed.