Wednesday, September 12, 2018

My View of the Living Constitution

For me personally, the greatest defect of the Living Constitution (even a conservative living constitution striking down minimum wage laws, and other laws restricting freedom of contract and economic liberty) is this:

The Living Constitution is based upon the subjective moral and philosophical preferences of the nine unelected lawyers who serve on the Supreme Court from time to time. Thus, it is inconsistent with the Rule of Law, the very principle that legitimizes judicial review. As Judge Bork once said. "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else." It is the Rule of Elite Men & Women, not the Rule of Law.

What is your strongest reason for supporting either Originalism or the common law Living Constitution?

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