February 18, 2013

Very Interesting Paper

Insty links to an interesting paper: The Constitution as if Consent Mattered by Tom W. Bell.

At 22 pages, it is a hair longer than yesterday's Review Corner, even without the double spacing I am used to, but it has all kinds of footnotes and citations. Work, schmerk!

Bell brings up libertarians' penchant for the Nolan Chart, replacing the left-right scalar function with the two dimensions of economic liberty and social liberty. Bell suggests that the residents of the top point in Nolanland also reject the originalist - living constitution scalar variable for a two dimensional plane of responsiveness and textual fidelity.

Why are we discarding our allegiance to the founders, jk? Did you get your hands on Angel Raich's medicine?

Bell introduces respect for modernization on the basis of "consent of the governed." We ask our young friends to allow coercive fealty to a document written and ratified over two centuries ago. That does not bother ThreeSourcers who generally approve of its timeless wisdom as an originalist interprets, but Bell suggests that key liberties could still enjoy protection under a constitutional regime that allows more modern interpretations of what constitutes a militia, and the difference between privileges and immunities with rights and liberty.

Now, I tend to consider originalism as a way-out-there newfangled version of textualism, but Bell provides some great points to ponder. And football season is still six months away.

SCOTUS Posted by John Kranz at February 18, 2013 2:50 PM
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