Quote Originally Posted by Visbek View Post
First, the structure of the amendment process belies this claim. It is not an easy process, it is significantly harder to amend the Constitution in the US than in most other nations, it's become more difficult as we've added states, and we haven't done anything to make it any easier. In addition, some people today treat every vowel and comma of the Constitution as sacrosanct. This has made modifications even more difficult.

Second, it's very clear that the Constitution was not fixed in stone from the start. The first generations of politicians, especially Washington, knew that their choices would have a major impact on how the nation's political structure and balance of powers would play out. The Framers knew it shouldn't be as specific as statutory law. Jefferson even tossed off a comment about replacing it once a generation.

Third, whining doesn't answer the critical questions.
WHOSE intent do we follow? The author, the legislators, the ratifiers, the citizens? The citizens whose lives will actually be influenced by the interpretations?

What happens when the intent was actually divided? E.g. many early post-colonial politicians didn't want a standing army at all, while some did. Whose intent is binding?

We have absolutely no idea how any of those politicians would react to modern times. E.g. imagining that we know how Jefferson would react to desegregation, let alone the Internet, beggars belief.

What happens when our ethical concepts change? The Constitution outlaws "cruel and unusual punishment." Are we supposed to hew to the 18th century concepts about punishment? Washington whipped deserters from the Revolutionary Army, with minimal due process; does that mean flogging is back on the table as a valid punishment?

More to the point is that there is no one, single, absolutely accurate interpretation of the Constitution. It doesn't happen. It can't happen. The nature of language, law and politics makes it impossible. Every law and every court decision will rely on an act of interpretation. Even claiming you're following exactly what the Framers intended requires an act of interpreting their intentions.

Nor is that particularly new. In English Common Law, judges routinely needed to rely on precedent, and determine how to apply older laws to new situations. What has changed isn't the process, it is our awareness of the interpretive elements of that process.

There is little reason to doubt the validity of judicial review. The concept was utilized prior to the ratification of the US Constitution. It was solidified in the US in 1803 with Marbury v Madison -- years in which Jefferson, Madison, Adams, John Jay, even Thomas Paine were still alive and active. Even those who disliked it (such as Jefferson) took few, if any, steps to stop it. There was really no doubt after 1803 that the SCOTUS had taken on this role.

We've also had over 200 years to amend the Constitution and change this system. We didn't. You wanna change it? You know what to do.

And pertinent to the question posed in this thread: People tend to bitch about the judiciary a lot more after a loss than after a victory. I don't recall a lot of pro-gun advocates decrying judicial activism, or judicial review, in the wake of Heller....
I need a LOT more than one "like" for this post.

I distrust people who say that they know the Founders' "original intent." Really? Were you alive in the 1780s? Did you speak in person with Thomas Jefferson, John Adams, and Benjamin Franklin? You didn't? Then how can you really know? Because Glenn Beck or whomever told you so? No. People need to pick up a copy of The Federalist Papers and read it for themselves. Don't let others dictate your opinions; use your own brainpower to draw your own conclusions. Think for yourself! It is a constitutional right!