Meta and Meta

Living Constitutionalism for the Formalist, Pt. 1

Picking up where I left off on Friday, I want to briefly sketch a quasi-formalist alternative to originalism, what I'll call contemporary meaning formalism ("CMF").

The theory is spelled pretty much the way it sounds:

(CMF) The original text of the constitution and amendments are authoritative, and their terms are to be strictly construed; but they are to be construed according to their contemporary rather than original meaning.

Here, briefly, are the main arguments in favor of CMF as against originalism:

1. Determinacy. The contemporary meaning of a constitutional term will be at least as determinate as the original (i.e., centuries-old) meaning. (Which meanings do we have more complete and reliable access to--those of 2007 or those of 1789?)
2. Objectivity. In light of (1), above, the contemporary meaning of a constitutional term will be at least as independent of the preferences of judges as the original meaning.
3. Popular sovereignty. If legitimacy requires the consent of the governed, then it seems likely that the words as those governed now understand them should be preferred over the words as understood by a centuries-dead polity. (In a slogan: Whereas They were the People, We are the People.)

Click here for Part 2.

Living Constitutionalism for the Formalist (Teaser)

Jack Balkin and Matthew Franck have had some back-and-forth on Balkin's theory of originalism.

I'm skeptical that Jack's "originalism" is properly so-called.  I want to suggest however that originalism is not the only formalist option that liberals might find attractive. The alternative I have in mind is what I'll call "contemporary meaning formalism." I'll roll out the theory on Monday and explain why it is a more principled alternative to any plausible form of originalism. Till then...

Max Respect

I never posted on Max Roach's passing, but I thought this Slate piece had a great example of Roach's incredible flexibility and inventiveness, and I had to pass it on:

His first real eye-popper—the track that has drummers shaking their heads even now, 56 years later—was "Un Poco Loco," recorded in 1951 with pianist Bud Powell.... The song [has] a crazy rhythm to begin with. But Roach adds a more complex layer that goes against Powell's rhythm, on a cowbell no less, while pounding a rumbling roll on the bass drum at a different tempo still. Simply jaw-dropping—and you can dance to it.

More remarkable, Roach clearly devised this approach on the spot. [My emphasis.] The album contains three takes of "Un Poco Loco," and the drumming is a bit different on each. On the first take, Roach hits the cowbell in a high-energy Latin rhythm that goes with Powell's rhythm; had he stopped there, it would have been impressive enough. On the second take, he tries a whole other approach, hitting only a couple beats per measure and altering the beats; it's very diverting. Only on the third and final take did he pull out the polyrhythmic marvel.

Giving Aid and Comfort to Foxy Loxy

Shorter debate on withdrawal from Iraq:

War critics: The sky is falling in Iraq. We must withdraw our troops.
Bush: But if we withdraw our troops, the sky will fall.

(Via TPM, who explains why Bush is, you guessed it, wrong.)

Show Me The Magic

Teller defines magic thus: "The theatrical linking of a cause with an effect that has no basis in physical reality, but that  — in our hearts  — ought to." Remind you of anything else?

(James Randi effectively defines it this way: Convincing the audience that their false physical assumptions are facts.)

The GOP's Leading Pitch

Talking Points Memo: Giuliani combines "Bush's foreign policy genius with Clinton's sexual impulse control."

Through a Gloss, Darkly

Shorter Roger Scruton: Religion is manifestly absurd. Which is why we ought to take it more seriously than do atheists and true believers.

(Via Arts & Letters Daily.)

Infantile Aggression

Hilzoy has a great post limning the really weird infantile psychology that sustains the authoritarian conservative (but I repeat myself...).

Mark, I think this is another one of those structural advantages.

Stay Classy

Chris Matthews as latter-day Ron Burgundy? (The comparison may not be completely fair; Burgundy wasn't married.)

Another 16 Words

Sixteen words you aren't likely to hear in the next State of the Union Address: The Italian government has learned that Iraq recently sought $40,000,000 in automatic weapons from "black" sources.