Thursday, April 19, 2012

Strict Constructionism vs. Experience, or academic debates vs. practical ones

People who defend the strict constructionist interpretation of the Constitution love to point out how much the Founding Fathers labored over the question of how to found a functioning Republic on the scale of the United States, since such an entity had never been created. And, yes, they did do quite a bit of research, thinking, philosophizing. But, strangely enough, after they ratified it in 1789, 223 years passed, bringing us up to the present day. In all that time we've had plenty of experience in what works and what doesn't in how to organize governments. Not only that, but ever since the French Revolution so has the rest of the world. 

We have a vast experience of real, empirical, data to draw from, yet the Strict Constructionists want us to return to the books, to how the Founders understood things like "The Commonwealth of Oceania" by James Harrington and "Discourses Concerning Government" by Algernon Sidney in order to figure out what we should do now. Don't get me wrong, I like books of that type, but expecting us to deal with the problems of the current day by reconstructing what was percolating in the heads of the Founders, while ignoring what's come after, is a little like asking medical students to go back and read Galen over and over in order to get the fundamentals of how to cure illness. Yet the Supremes go out there and augustly intone about the thought of the Founders, about their transcendent legislative will, as Rousseau might have styled it, while thinking about  how to count the number of angels on the head of a pin.

No comments: