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According to hard critics, factors like original understandings andthe supposed discipline of common law reasoning seldom, if ever,succeed in fixing meaningful limits upon government power. As aresult, reliance on such factors in constitutional adjudication onlyserves: (a) to rationalize the purely political decisions of judgespursuing, consciously or not, their own political ideologies. Furtherconsequences include: (b) a serious affront to democracy. In mostconstitutional democracies, the judges who ultimately decideconstitutional cases are appointed, not elected. That is, they holdoffice not because they were selected to do so by the democraticcommunity, but because of a decision on the part of a President, aPrime Minister, a small group of fellow judges, or a judicialcommittee of Parliament. Furthermore, these appointed judges tend tocome from the privileged classes of society. The end result is that a smallgroup of unelected, elitist judges with the power to substitute theirown, highly contentious views about the proper limits of governmentpower for the considered judgments of the people’s representatives,e.g., those members of Congress or Parliament duly elected toexercise, on behalf of the people, the latter’s sovereign right toparticipate in political decisions affecting their basic rights. Andpossibly (c): suppression of those—women, minority racialgroups, the poor, and so on—whose interests are not adequatelyrecognized and protected by the dominant, mainstream ideologies towhich these elite judges have an affinity. Instead of the curbing ofrights-threatening government power for which the idea ofconstitutionalism is supposed to stand, we have political suppressiondisguised in a cloak of false constitutional legitimacy.
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But if we are not to be tied in these ways to the so-called dead handof the past when we engage in constitutional interpretation, how arewe to proceed? The dominant alternative, living constitutionalism,takes its inspiration from the difficulties in originalism sketched inthe preceding paragraphs. It does so by construing aconstitution—or at least those parts of it that incorporateabstract principles—as a living entity whose limitations are sometimes open to revisitingand revision in light of those changing times and (one hopes) improvedmoral/political understandings that tend to cause originalists so muchtrouble.
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So we are left with the question of why we should speculate about whata long-dead group of individuals might have intended orwanted done were they apprised of what we now know. The main appeal oforiginalism is that it appears to tie constitutional interpretation tomorally neutral, historical facts about actualbeliefs, intentions and decisions of individuals with thelegitimate authority to settle fundamental questions concerning theproper shape and limits of government powers. If we are now toconsider, not what they did decide, believe or understand,but what they should decide were they to exist today and knowwhat we now know, then the main appeal of originalism vanishes. And sothe question naturally arises: Why not just forget this theoreticallysuspect, counterfactual exercise and make the decisions ourselves?