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I partially agree, but there are some caveats. One, as Robert Bork has pointed out, strict construction of the Tenth Amendment is a dead issue. So much depends upon a looser interpretation that, at a minimum, an attempt to reconfigure government by the wholesale application of the 10th would precipitate a new constitutional convention, and there is reason to fear opening the question to that degree. Secondly, to a great extent British institutions evolved through judicial adaptation, creating a precedent in the common law for some degree of creativity in interpretation. Finally, it can be argued that the changes in society that ensued between the Founding and today required adaptation or continual amendment, and therefore that there is a limit to the application of "original intent". Because the rule of law depends upon imposing a discipline upon judges to make plausible interpretations of standing law, I am a strict constructionist in the sense that the ruling must bear a reasonable relationship to the text, and that, ordinarily, one should not strain against probability, unless the novelty of the case makes it difficult to avoid. However, I do not think that "original intent" is the best interpretive method, since the Framer's obviously could not have anticipated myriad situations with which we are confronted. In other words, try to derive the ruling from the text, not the historical record..... |
