Let us say that your idea of originalism is 100% valid in many respects. So what? We no longer live in 1787. We no longer are a nation of 4 million people. We no longer occupy a narrow strip along the Atlantic Seaboard containing just 13 states. We are no longer a nation of farmers and small merchants who serve mostly farmers. We no longer function largely as a barter society. We no longer cling to outdated institutions such as slavery and view women as inferiors. We have to contend with powerful institutions that government back then did not have to contend with. We are not isolated from the rest of the world. We are not a primitive backwater nation out of step with the powers of that time. Things have changed.
All very true, but there's nothing that's changed because the Constitution was adhered to--a lot of the changes you describe were the result of changes that occurred due to people NOT following the Constitution.
All the Constitution does is layout the framework for government. It's not like it completely chains us to the deck of the Titanic. It's clearly capable of handling today's problems, as all it entails is a bare-bones system, easily adaptable to the complications of modern life. The only problem people have with it is that certain portions of the document stand in the way of those I like to call the Grand Schemers.
"Oh, you want a powerful executive capable of protecting us from stubbing our own toes? Sorry, but you're going to need a warrant for that. And you know what else? I'm capable of protecting myself, thanks to the 2nd Amendment. Sounds more like you just want more power to spy on your political enemies"
"Oh, you think that so-called 'greedy' businessmen are holding up the price of a product, when it's more likely the case that they just don't have the capacity to produce enough to meet the demand for it and that the profits they make are a signal to the rest of the market to divert more resources to this industry? So you want to hold down the price of that good, and thereby create a shortage of it for everyone? Where exactly is the power granted to fix prices?"
One important fact: there's nothing about the capacity of the states and municipal governments to handle local problems. Yet you won't find too many believers of that sentiment inside the beltway these days. As James Madison reminded the Anti-Federalist in his essay in the Federalist (no. 45):
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
The only thing standing in the way of the states performing their domestic functions is funding; it's the fact that the Supreme Court has since interpreted Congress's taxing power to be nigh plenary. The feds can then tax away what the states would get if they taxed themselves. It leaves the states in an inferior position, where they then have to go begging to Washington for the funds they need to do what their constituents want.
That puts Washington in a position of power that it isn't supposed to be in to begin with. It means that the social do-gooders and grand schemers in WDC--who wish to impose their one-size-fits-all, grand designs on the federation--can get all their like-minded cohorts in the federal government to attach innumerable stipulations and conditions (i.e., "strings") to the money they return to the states.
I maintain that this sort of thing going on these days is but the logical consequence of the 17th Amendment. Before the 17th, the state governments had a say in the making of federal law, via the Senate. That state-govt-representation in the Senate acted as a check-and-balance of the states on the federal government. With that gone, there's no longer any state-govt-check to counteract the federal government from elbowing its way into domestic matters the Framers intended to remain solely within the purview of the states and their municipalities.
Why is the opinion of what the Constitution meant in 1787 to people of 1787 valid for a very different world of 2009 and the people who live in it? Are the members of the US Supreme Court suppose to ignore the reality of the nation they live in and pretend that nothing has changed in 222 years?
Again, as I said, the Constitution is a contract. It's a contract between the people of each state with the people of the other states, with the people of each state and their own state government, between the government of one state and the governments of other states, and between the government of each state with the people of the other states. They all came together and made an agreement; they consented to an arrangement, which means that they had a common understanding of what exactly that arrangement entailed.
It's long been a central tenet of contract law that courts interpret each party's understanding from an objective point of view. In order to do that, they borrowed a standard from negligence law: the legal fiction of the reasonable person. Check out the Wikipedia article
Reasonable Person (written for the most part by yours truly); in particular, see the reasonable bystander portion.
you conclude with this thought provoking statement
That makes sense as far as it goes. But can we ever truly and completely know all the thinking and beliefs of all the delegates and principals of the writing of the Constitution? And because we cannot, is not the picture that emerges going to be always an incomplete and flawed picture based on selective information? And just who is the "average American" of 1787? I am not sure we can draw that accurate picture and put ourselves in their head with complete accuracy.
Better we allow what the actual words of the Constitution say in this regard. The judicial powers are vested in the Supreme Court and they will interpret the document for us using the best of their abilities and intelligence to interpret the document itself.
1. What any Framers thought or knew is irrelevant to the extent that they didn't write it down and convey their thoughts to the discussion. What they did convey to the discussion is already part of the record, so we have that. If they chose to sit out the discussion and not say anything, then trying to divine what those people thought it pointless.
2. Not really. The whole point is to let both sides make their best argument using their best evidence for the position they chose. This is how our adversarial system has always worked: thesis and antithesis come together, and through the synthesis of the two, truth emerges.
3. As I said above, the standard I propose is not one based on any real person, but is instead based upon the objective understanding of what a reasonable person living at the time most liekly would have thought... It's legal fiction. It's a common tool that courts have used for centuries.
You have some real spiritual and emotional maturing to do, from what you've said here.
