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Interesting thoughts on constitutional history and originalism
From Law and Liberty, Part One and Part Two.
The point I have regarding non-originalists is more legal/political than historical. Federal judges are, of course, unelected and given life tenure. They do not stand for re-nomination at any time. Indeed, it's unconstitutional for Congress to reduce their salaries. What's the rationale for having officials chosen and kept in office in such an un-democratic manner? It's that the judges, in theory, only execute the will of the people as expressed by folks other than judges -- by Congress, or the President, or the Constitutional Convention and the states that ratified its creation. That is, judges are passive implementors of other people's decisions, and thus can be kept outside the democratic process. If judging is seen as something else -- implementing policy, deciding what is best for the country, implicitly amending the Constitution (a measure that otherwise requires super-majorities in both Congress and the state legislatures) -- is there any reason to have a judiciary so insulated from democratic forces? The "living Constitution" begs the question of which human beings make it "live." And thus why those human being should be people never elected by anyone and given lifetime tenures in power. We'd be outraged at designating a "president for life," and denounce it as monarchy. How can we justify a system in which the Constitution's content would be dictated and amended by "judges for life"?
Hat tip to Joe Olson...
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I have often argued that the constitution needs a recall amendment. On a vote by two thirds of the states, any law, regulation or judicial ruling can be revoked. Any judge, appointed official or government employee can be fired under the recall amendment. The sole exception is elected officials as they are already subject to the will of the people.
Judges, appointed officials and government employees fired under this provision are ineligible for future government jobs and lose all government pensions.
To my understanding, the rational was to have a completely impartial supreme justice. That hasn't worked too well. The apologists say, well, they are only people too. This to explain away their often disregard for jurisprudence.
US Constitution Article III, Section 1; "Good behavior"
When speaking of a 'living Constitution', it would be good to review the work of Christopher Columbus Langdell. A real scoundrel, that one.