[S]cholars such as Bernard Bailyn and Gordon Wood have demonstrated that the era from 1765 to the turn of the century was a dynamic period of consistent change and deep thought about political relationships. One cannot freeze a particular moment during that era and infer from it precisely what well-informed people thought, because they had not yet finished thinking about what something like freedom of speech or the relationship of church and state should be.
Ossification is hard!
3 comments:
They are right if they say that during the period from 1765 to 1800 people's thoughts and beliefs concerning politics changed. But that has nothing to do with the fundamental reason for a constitution and laws which is to have a consistent and predictable set of rules for a society to live by.
If the constitution (outside of the method of amendments which would change the constitution - a method which itself is managed by rules) can change based on the whim of the moment or how a justice interprets a comma then there is no predictability to our laws and our nation is no longer a nation of laws but a nation ruled by men interpreting the laws and constitution as they wish.
What should the proper interpretation be? I would settle for the discussions and arguments occurring at the time of adoption to be the guide as to the proper interpretation. This does not mean that there should no "wiggle room" but any such "wiggling" should be extremely limited.
"[O]ur nation is no longer a nation of laws but a nation ruled by men interpreting the laws and constitution as they wish."
I think the point is that's all it ever was.
Also, with a constitution as difficult to amend as ours, the only way for it to survive is judicial flexibility.
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