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"A comprehensive, collaborative elections resource."
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Alive and Kicking - Why no one truly believes in a dead Constitution.
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| Contributor | RP |
| Last Edited | RP Oct 17, 2005 04:31pm |
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| Category | Analysis |
| News Date | Monday, August 29, 2005 06:15:00 PM UTC0:0 |
| Description | Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation. A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination. Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed—including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration's policy goals—from No Child Left Behind to national tort reform—would be beyond federal power.
Even the Supreme Court's two professed originalists, Justices Antonin Scalia and Clarence Thomas, believe in the living Constitution. Scalia's concurrence in Raich v. Ashcroft—this term's medicinal-marijuana case—demonstrates that he long ago signed on to the idea of a flexible and broad national power that came with the New Deal. And Thomas argues for First Amendment protections far broader in scope than the framers would have dreamed of. Both Justices joined the majority in Bush v. Gore, which relied on Warren Court precedents securing voting rights under the 14th Amendment. There was just one tiny originalist problem with that logic: The framers and ratifiers of the 14th Amendment didn't think it applied to voting. |
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