One implication of all this is that there’s no good reason for the job of Constitutional arbiter to fall exclusively to judges.
You’ve just rediscovered The Irrepressible Myth of Marbury and its supporting idea judicial duty (as opposed to power).
I think you gave too short a shrift to the amendment option. If it’s too hard to amend the Constitution, that should be loudly proclaimed so we can get to work on fixing it (perhaps by disregarding the amendment rules in creating a new framework, as was done when the Articles of Confederation were replaced). Personally, I’m less enamored of “progress” and think the difficulty of changing it is something of a feature rather than a bug, but one flexible enough that it was not so routinely disregarded would be preferable.
taw: Thomas tends to be the more consistent originalist, so look for decisions where Thomas dissented from Scalia. I can recall hearing a number of complaints about Scalia doing just what you say, but unfortunately cannot name specific cases.
Finally, to answer your question of why we should care what they thought, we think they were smart dudes who set up a pretty good system of government and had a better understanding of it than most. But the dominant form of originalism today is not about what they thought, but the meaning of what they wrote, because the latter is law and the former is not.
You’ve just rediscovered The Irrepressible Myth of Marbury and its supporting idea judicial duty (as opposed to power).
I think you gave too short a shrift to the amendment option. If it’s too hard to amend the Constitution, that should be loudly proclaimed so we can get to work on fixing it (perhaps by disregarding the amendment rules in creating a new framework, as was done when the Articles of Confederation were replaced). Personally, I’m less enamored of “progress” and think the difficulty of changing it is something of a feature rather than a bug, but one flexible enough that it was not so routinely disregarded would be preferable.
taw: Thomas tends to be the more consistent originalist, so look for decisions where Thomas dissented from Scalia. I can recall hearing a number of complaints about Scalia doing just what you say, but unfortunately cannot name specific cases.
My favorite paper I’ve read on originalism is ‘This Constitution’: Constitutional Indexicals as a Basis for Textualist Semi-Originalism. It does have a circularity issue in that you have to care what the Constitution says in the first place. Green’s take there is that judges swear to uphold the Constitution, not something else.
Finally, to answer your question of why we should care what they thought, we think they were smart dudes who set up a pretty good system of government and had a better understanding of it than most. But the dominant form of originalism today is not about what they thought, but the meaning of what they wrote, because the latter is law and the former is not.