[W]hat to you may appear to be “our shared values” in the modern era may easily appear to others as “the whims of a judge” when they get enforced, and, obviously, vice versa.

I won’t argue with that at all. America is a nation of subcultures.

It’s pretty easy to find “Kill them all and let God sort them out” types among otherwise very liberal New Yorkers and Bostonians, for example. Likewise, there’s a sizeable contingent of the Christian Right that disapproves of capital punishment, particularly the more conservative Catholic elements. Cross-cutting like that is good for making a point.

I hope you don’t miss my other point too, that what, to you may appear to be “our shared values” in the modern era may easily appear to others as “the whims of a judge” when they get enforced, and, obviously, vice versa.

I think that Justice Scalia had it right when he asked how nine people could lay greater claim to understanding modern morality than the rest of the country. (Remember, Justice Scalia’s jurisprudence is not solely originalist, but also majoritarian)

Chemerinsky: “I think that the Court’s most important role is in protecting minorities who are not protected by the majoritarian political process.”

Scalia: “The whole theory of democracy, my dear fellow, is that the majority rules, that is the whole theory of it. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection.”

Chemerinsky can’t abide Scalia because he says things like: “my only authority as a judge to prevent the state from doing what may be bad things is the authority that the majority has given to the courts,” and “to presume to judge for yourself what is good or bad and impose it upon the majority simply because it is bad, I cannot accept that.”

Chemerinsky’s presumption amounts to a kind of religious fundamentalism. He is certain about what it is good, and he is eager to see it enacted by the courts regardless of the law and the constitution.

An Aug. 1, 2002, memo from the Justice Department’s Office of Legal Counsel, addressed to Gonzales, said that torturing suspected al Qaeda members abroad “may be justified” and that international laws against torture “may be unconstitutional if applied to interrogation” conducted against suspected terrorists.
[from http://www.washingtonpost.com/wp-dyn/articles/A26401-2004Jun8.html }

Gonzales then, argues that we can torture away – just not on our soil and label the people “enemy combatants.” (Note that “enemy combatant” wasn’t defined to my knowledge or it was vaguely defined.)

You make some great points Al, and I admit that I can be too polemical at times.

I agree that adhering to the constitution is desirable. The thing is, if torture (abroad or anywhere else by our citizens or officials) is AOK with the Constitution, then the way it is interpreted now already has some serious flaws.

Clam. Glad you’re back! You mention a perfect example of the court over-reaching and legislating morality since (for one thing) capital punishment has been around a long time in this country. (I may be liberal, but I’m not that liberal – even though I am mostly against capital punishment.) So the legislature, rather then the Royal Robes, should make that call.

“Cruel and unusual” is open to a wide interpretation. This is an example where liberal vs. conservative comes in.

And I don’t want to live under a constitutional regime run by leftists expounding upon “our values” as opposed to the Constitution. See, e.g., the “evolving standards of decency” that made executions that were constitutional a year before unconstitutional the next.

See, inter alia, Souter.

I, a non-lawyer who isn’t even vaguely associated with the legal field, can read ‘hmm, cruel and unusual punishment is a no-no’. Then I can make up my own mind as to whether I’m being cruel and unusual. It doesn’t have to spell out ‘Thou shalt not torture’. So I’d agree than ‘torturers’ should be persecuted.

The converse of originalism is to have 9 people in robes arbitrary decide anything they please without any reason whatsoever. There is no way for a man on the street to divine what the current 9 supreme court justices _think_ in _advance_.

Yet that is the ‘non-originalist’ position: it is a living constitution, and needs constant reevaluation to keep up with modern trends.

My personal view of ‘originalism’, is that the Constitution should mean what it was intended to mean when written. Because at least that is _static_.

A key facet of American law is that ignorance of the law is not a defense. And yet you are proposing that “the law” come from the mental meanderings of nine unfettered minds. Who don’t appear to object to using South African law when it suits them. I wonder what South African law says about torture. - Hey, looks like we could pick that as precedent! (No, this is _NOT_ what we want, but that is what veering off into international precedent allows)

I’d like the Supreme Court to at least _attempt_ to stick to the text as written. Even when it provides a galling or appalling result. Yes, there will still be slack in the meanings of words, and the drift of the meanings over time.

You don’t change the method of interpreting a blueprint for the foundation of a tower after you’ve built the 30th story without a ‘change order’ and a hellacious amount of discussion.

I don’t know any preachers, and at least the Constitution was written in the same language its adherents purport to speak.

I agree that the major mechanisms of the constitution are laudable. But when our values conflict with the Constitution, the Constitution needs to be either amended or interpreted humanely. Also Al, Amendments are extremely difficult to add, so they’re not always an option. I don’t want to live by some draconian rule just because of the way a right-wing judge “interprets” the Constitution to fit his “whims.” This high-minded talk praising objectivity is cheap. (All preachers would argue that they’re being impartial, but look at how many different religions there are. The same goes for “originalism.”)

You know, considering that torture is apparently “Constitutional,” I’m beginning to see that all this talk about constitutionality is merely academic anyway.

In fact, wait, I think some were actually applied to that very issue. Let’s see… 13, 14, 15, yep. And let’s check the court cases… wait. The court cases seem to indicate the Robes thought slavery was _legal_. Hmm.

You provided a counter-example to your own argument.