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Comment by alacombe | Hacker News Reader

You're forgetting a aspect: the Constitutional clause has been superseded by the 14th Amendment. So in this case, an originalist would rule based on the Amendment, not the just Constitution's original text.

And this display a crucial point, there is a legal process to amend the Constitution not relying on a few scholars re-re-re-interpretation. I'm all for a Constitutional Amendment on abortion, as long as it's the Will of the People, not the Will of a few jurists. If you can get a Constitutional Amendment for the prohibition of intoxicating beverages, you can certainly get a Constitutional Amendment behind abortion... unless it's less of a consensus as you make it seems. Also, using one's 14th Amendment Right to privacy to "legalize" abortion is a pretty weak argument.

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The point is that originalism relies on the idea that the Constitution was a nearly flawless document worth preserving in its original form with a couple adjustments, where in reality it was a deeply, deeply flawed document that has been patched repeatedly to a workable state but still has serious shortcomings.

That is blatantly false, originalism is relying on both the Constitution + associated Constitutional Amendments. As OP mentioned, the latter are not set in stone.

> That is blatantly false

You're missing my point. And I don't care right now.

> The point is that originalism relies on the idea that the Constitution was a nearly flawless document worth preserving in its original form

No, it doesn't. It is simply the idea that the legal impact of an enactment is set by the meaning (for the textualist form or originalism) or intent (for the intentionalist form of originalism) of the law when passed (whether you are referring to a statute or the Constitution or anything else.)

It has nothing to do with belief about the merits of the Constitution prior to subsequent amendments.

And you would only take that approach as a judge in the United States if you believed that the Constitution was a nearly flawless document worth preserving in its original form.

Why else? Point me at someone who believes the Constitution is deeply, deeply flawed and in serious need of major revisions yet takes an originalist approach in their jurisprudence.

> And you would only take that approach as a judge in the United States if you believed that the Constitution was a nearly flawless document worth preserving in its original form.

Given that, despite the cases that get the most public attention at the highest levels, most judicial interpretation isn’t of the Constitution, that doesn't make sense; it also doesn't make sense otherwise, since the Constitution has had extensive (either from a textualist or an intentionalist perspective) radical changes within the perspective of originalism, so originalism is in no way incompatible with believing the 1789 Constitution needed major revision, even if one assumes that an originalist must be operating ends-first and looking to rationalize their desired end-state of Constitutional law, rather than honestly.

> Why else? Point me at someone who believes the Constitution is deeply, deeply flawed and in serious need of major revisions yet takes an originalist approach in their jurisprudence.

All of the people who supported amendments?

That's not true, and I'm not even an originalist at all. Their point is that you stick to the letter of the law (the constitution) rather than trying to bend it around current social norms and sensibilities. I've never met an originalist who thinks black people are "3/5" of a person. They will cite the 13th and 14th amendments if you do. Clearly they would feel that the Constitution shouldn't be changed ever if they felt the way you say they feel. They think if you want to change the Constitution (or laws in general) that you should pass a new law or amend the Constitution to fit the situation, not sidestep it with a liberal judge who thinks it should be interpreted through the lens of society or even social justice.

> You're forgetting a aspect: the Constitutional clause has been superseded by the 14th Amendment.

The 13th, actually (it determined how chattel slaves were counted in apportionment, and the 13th abolished chattel slavery, so there were no chattel slaves to count.)

There's two ways to interpret the constitution: the honest way, and the way where you pretend that not only were the Founders of one mind on what the Constitution meant, but also that you can read that mind two and a half centuries later.

So, you are saying that textualist originalism, like Scalias, is the honest way, whereas intentionalist originalism is dishonest?

(And, yeah, there's actually more than two ways to interpret the Constituion.)

Not the OP, but of those two, I certainly agree textualism is more "honest". I don't see how you could ever divine a singular true intent behind a compromise of hundreds of divergent minds.

"Textualism" requires divining a single true meaning as interpreted by some not-well-specified group contemporary to the writing, instead of doing so for the at least somewhat-well-specified group of people adopting the measure required for "intentionalism".

(I think both forms of originalism are useful and important interpretive lenses, but I think taking either as universally decisive or even mistaking either for a decidable objective standard is deeply problematic.)

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