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Re: Balkin's limiting principles**

By: Cactus Flower in ALEA | Recommend this post (0)
Fri, 30 Mar 12 11:19 PM | 56 view(s)
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Msg. 07147 of 54959
(This msg. is a reply to 07146 by clo)

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Hi clo,

I don't know what they intended.

And not wishing to be abrasive, nor do I really care, as I'm more of a living nation kinda person. Being folks like you and me, the founders got all sorts of stuff wrong, when set against the two most important measures: time and the landscape.

Environments change over time. Societies must be able to evolve with them. Or they die. The central mechanism of evolutionary theory is a means by which change occurs. No creature is crystallised into some form of perfection. The successful ones adapt to suit their environment.

Healthcare is actually a good example of this. In the eighteenth century, the idea that medicine might be a critical tool to prolong life was not altogether obvious. A doctor might as easily kill you as cure you. Now, well, things are a bit different. To survive as long as people do, they need access to healthcare.

Darwin came after Jefferson, of course. The idea that survival - survival by adaptation - is pretty much the central fact of nature was not yet a thought that had been had.

A fixed constitution is bound to fail. It seeks to acieve the exact opposite of what is necessary. It tries to find principles that exist forever. It opposes the ambivalent character of societies which is their essential nature.

The key to a successful constitution is to enable change at a rate at which a society is capable of adapting (this provides the theoretical maximum speed of change), and then, within those parameters, to let democracy find the optimal rate of change to suit the circumstances in which society finds itself.

So reverence for a piece of paper, or for the wisdom of a group of founders, is a profoundly dangerous sentiment. As we witness once again.

If I revere anything, it is the common law, which is the element of law which provides for adaptation. The Supreme Court works well when it builds on the work of lower courts and uses precedent as a lever to open the door to flexibility. Originalism is against nature.




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The above is a reply to the following message:
Re: Balkin's limiting principles
By: clo
in ALEA
Fri, 30 Mar 12 11:12 PM
Msg. 07146 of 54959

Hi Cactus Flower,

When I take time to consider, 9 people, 9, will decided the fate of healthcare for All Americans, it makes me sick.

Our republic has whittled down to 9 black robes?

Hard to believe the Founding Fathers intended this.


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