Ezra Kline: Oh Captain, my Captain

On the Originalist Interpretation of the Constitution

On his podcast Ezra Kline quoted a legal scholar, who, in describing the originalists control of the Supreme Court, made the analogy to a ship that was built to a set of architectural plans. And then, when they took the ship on the ocean, they found they had to make changes and add things. 

They go along about 200 years making changes and adding things to the ship and then someone claims to have found the original plans. And they say that they have to get rid of everything that was added on to the ship and every thing has to be returned to the original plans no matter what. This can only result, argues the law professor, in a sinking ship. 

It is a compelling analogy, but I think he gets it wrong. Our situation is that for 200 years changes have been made to the ship by a Captain who claims that he is only adding what was called for in the original plans. The the crew finds the original plans and it turns out that a lot of the things the Captain has been adding weren't in the original plans at all. Moreover, the original plans call for changes to be made not by the Captain's sole decision of what the original plans called for but by a vote of the crew. 

The Captain is replaced by a new Captain who returns decision making to the crew. Future changes to the ship will be decided by the crew. Also, the changes that have been made to the ship can be kept or rejected by the vote of the crew. The crew, with more experience and closer contact with the problems faced by the ship and more minds on the problem will keep the ship afloat better than the expert diktats of the Captain.

 

Don't Imitate Progressives 

It would be a shame if Conservatives used the occasion of their victory at the Supreme Court today in seeing Roe and Casey overturned if Conservatives repeated the mistake of Progressives in passing laws that do not pass constitutional muster or in nationalizing state issues. Matt Walsh tweets that the next step is a national law banning abortions. I think that would be a mistake. 

It would return us to the problem we have had for 50 years--trying to impose one morality on a diverse society. In the various states there are majorities for policies ranging from abortion on demand up until the moment of birth to banning it from the moment of conception. By the mere fact of a law being national in scope it makes it inevitable that fewer people will get the policy they want, whatever that policy happens to be! 

And since we have relied on the originalist interpretation of the Constitution to effect a momentous victory, we are ill advised to, on the very morrow of victory, set about trying to enact a policy which ignores the Constitution. Where in the Constitution is the Federal government granted the power to regulate abortion? Of course, one could torture the Commerce Clause into making it confess to granting the power to regulate abortion to the Congress, but it would be a false confession.