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More On Goldberg and the “Living Constitution”


I’m out of town for a funeral and don’t time to fully get into this, but I couple of quick points to add to SEK’s demolition of Jonah below:

  • Note how tendentious Goldberg’s examples are.  He happens to choose a from the tiny handful of examples — the abolition of slavery, female suffrage — where a substantive right was granted by formal constitutional amendment.   But one could just as easily adduce examples such as school desegregation, the right to interracial marriage, other forms of gender equality, etc. — which were granted through changing understandings of the broad language of constitutional provisions.
  • We’re all “living constitutionalists.”   The ratifiers of the 5th Amendment “would be stunned to learn” that in 1791 had just created a rule preventing the federal government from ever using a racial classification, but that hasn’t stopped Scalia and Thomas from arguing this, with a notable lack of dissent from Goldberg or other conservative pundits.    When you add this to cases like Brown and Loving, which can be defended as “originalist” only defining terms at a sufficiently high level of abstraction that William Brennan could be called an “originalist,” nobody really thinks that the intentions of the framers are always binding.
  • Moreover, if the framers and ratifiers of the 14th Amendment had wanted to pre-empt a decision like Perry, they could have limited its reach to cases involving racial classification (as the 15th Amendment did.)   The language of the Constitution itself suggests that originalism as Goldberg defines it is non-originalist.
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