Quote from: Lori Dee on June 02, 2025, 04:14:30 PMThe SC Justices do consult Madison's Notes and the Federalist Papers to gain insight into the discussions at the Convention. They were detailed enough that the Justices could see how each side responded to the issue.
Absolutely, in their position, if they did not do due diligence, it would be scandalous.
I guess my view is that in
any country which finds itself in a position where, in cases which involve its constitution, the judicial clock must always be turned back, then our cause is lost there, as is the cause lost of any minority which the country's constitution does not mention. In there somewhere is what you're touching on in your penultimate paragraph, I think?
At the core, in every case of a similar sort, the argument on the side of those who wish to turn back the clock has been a modern judiciary can divine the
specific intent of the framers by reading other texts or histories either written by then or written about them. Coupled with that is an assumption the judiciary can do so without their divination of that intent being coloured by their own biases or the biases of the authors of the works they use to build their interpretation.
Yet the interpretation of history by nations is full of cases where the past has been rewritten by those present, a classic example being Edward I's use of Arthurian legend to justify his conquests within the British Isles. Much worse happened in Germany in the twentieth century when a sympathetic and compliant judiciary worked with the government to use historical interpretation as the basis of segregation and ultimately, genocide (I'm reminded here very much of Primo Levi's
If Not Now, When? which makes the case I'm writing of more eloquently and chillingly than I could do should I live without limit of time.)
The famous quote from Madison that sticks in my mind is, 'In framing a system which we wish to last for ages, we should not lose sight of the changes that ages will produce.' Later, he reminded his listeners that he and the other framers didn't deserve to be venerated, because they were the product of their time, not of future times. Madison expected change because he
knew society would change.
The forces of conservatism with a small c are forever dragging us back into a past where children were sent to work, which embraced slavery, denied women's rights and had no space whatsoever for LGBTQ people. It's a personal thing, which I have no desire to impose on anyone else, but I cannot find it within me to be enthusiastic about any judicial system, wherever it is in the world, whose primary motivation is to preseve cultural values which are centuries old. That includes the UK when it has one of its periodic fits of Victorianism. We can be as bad at Originalism here as anywhere else!
