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Tuesday, October 11, 2005

Nutjobs and Old Coats
If you listen carefully, you can still hear the palpitations. No, it's not Cheney tallying the return on his Halliburton investment, nor is it DeLay quivering with excitement at his lawyer's latest attempt at distraction (one hastens to reiterate that DeLay's attorney has chosen to attack Ronnie Earle rather than swearing by affadavit that DeLay is innocent).

No, the palpitations I'm talking about are the pitiable flutterings of the far-right hearts that until last week had been set on a Supreme Court full of drones, just like Bush promised (see Moldy Lemons, below). Harriet Miers drifts onto the scene, and suddenly a whole throng of Dittoheads wonders if maybe, just maybe, God isn't speaking through his son George, and there's all sorts of talk about how he's abandoned his base blah blah blah.

I mean, bankrupting the government and the nation? That's super!
Sanctioning torture? No problem! Exploiting 9/11 to this very day? Let's roll Killing 100,000+ innocent Iraqis? Bring it on!

But nominate a woman who might not personally bomb every abortion clinic in the land? How could he betray us like this?!?

Much has been made of the evils of Liberal Judges Who Legislate From The Bench and the virtue of Strict Constructionists aka Originalists aka nutjobs who think that the Constitution was written by Exxon and Philip Morris. It can't be stated often enough that a judge who strikes down a Conservative-friendly law is an out-of-control activist, while a judge ruling against, say, civil liberties is honoring the original intent of the founders.

If there's one thing that I learned in all those lit courses in college, it's that you simply can't know an author's intent (which is in any case subordinate to the actual text). This veers close to pseudointellectual postmodernist bullshit, but here's the kernel: no matter what the author intended, what matters is what made it onto the page. And, once it's on the page, the author has no more authority over the meaning of the text than does any other reader. In other words, writing the document is your chance to get it right.

However, all of that goes out the window when the authors say "if we missed anything, we leave it to the readers to write it in." Jefferson et al were the authors, and we're the readers. Scalia can howl about what the Constitution "really" means, but what it really means is that we can change what it really means.

It's no coincidence that many of the people preaching the inviolability of the original Constitution are the same ones who insist that the transcribed oral traditions of a nomadic, pre-technological culture are the immutable Word of God; that kind of text-fetishism is fine for mythology but misses the whole point of the Constitution.

Jefferson himself wrote of the need for a flexible system of laws:
We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
We can debate whether or not we're a civilized society, but the message is clear: if it don't fit, fix it.

So, will Miers make a good justice? Well, if she merits the specific praise that Bush has given her, then she'll certainly be awful. I don't buy into the tinfoil-hat theory that Conservative bloggers' bitching about her is a form of disinformation, because that's too many loonies to herd into one bin.

But if, at the very least, she recognizes that the Constitution is far more alive than Scalia would like it to be, then maybe, just maybe Bush will have managed to do one thing right during his tenure.

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