You've got it backwards. It's the folks opposing the death penalty,[1] that are arguing the words on the page are so sanctified they empower the unelected judiciary to overturn the results of the democratic process. Given that, it's kinda relevant what those words on the page actually mean. What did people agree to when they committed to letting these words on a page curtail their democratic prerogatives?
[1] I oppose the death penalty as it is used today. Making an example of psycho serial murderers is pointless, because it's not like that conduct can be deterred.
Are you American? Just curious on your perspective.
Those "arguing the words on the page are so sanctified" I take for you to mean are originalists/textualists. Most people in that camp are not against the death penalty.
Bigger picture, the words on the page DO overturn the results of the democratic process. The US holds the Constitution as its highest law, and any law implemented (democratic process) cannot conflict. If it does, meaning the (unelected) judiciary interprets the law that way, then it is invalid. But that's viewing checks and balances only one way. The executive and legislature (both democratically elected) also check the judiciary - they appoint the Federal judiciary and confirm, respectively. Those appointed judges may choose to interpret the Constitution in a more modern context, while others may stick to originalist thought. What I think you're missing is that it is the prerogative of the judiciary to choose how to interpret. There is nothing in the Constitution itself that mandates originalism, pragmatism, or anything in between, and given our system of government the only place to specify such a thing would be in the Constitution itself. It wasn't there in the beginning and we've made no such amendment. And we probably wouldn't, because judicial independence is a very important principle.
> Those "arguing the words on the page are so sanctified" I take for you to mean are originalists/textualists. Most people in that camp are not against the death penalty.
No, that's the perspective I am saying is backwards. Originalists/textualists just think the words on the page are the words on the page. If the words proscribe certain things then so be it, but otherwise, democracy controls. It's the "living Constitution" folks--who are generally opposed to the death penalty, who think the "spirit of the document" transcends the words on the page and overrides democratic decisions. They're the ones elevating the Constitution to holy writ, not the textualists.
> There is nothing in the Constitution itself that mandates originalism, pragmatism, or anything in between
No, it's logic that mandates you interpret the meaning of the words on the page by what they would've meant to those who wrote the words. Only in the highly political context of Constitutional interpretation is this even a debate. Meanwhile, folks who study Shakespeare are going back to not only the original meaning, but the original pronunciations of the words to fully understand the text.
>Originalists/textualists just think the words on the page are the words on the page.
That is incorrect.
>No, it's logic that mandates you interpret the meaning of the words on the page by what they would've meant to those who wrote the words.
Only if you think the original meaning is what governs today. Obviously many others do not, hence the mix of people you see on the Supreme Court today. Arguing that there is one and only one correct way (because "logic dictates" or whatever else) is an ideological argument on theories of constitutional interpretation. It's an ongoing and lively debate if you're into constitutional law.
> Only if you think the original meaning is what governs today.
That's a circular argument: "The meaning of the words to the people who wrote the words doesn't matter because we don't think the original meaning is what governs today."
> Obviously many others do not, hence the mix of people you see on the Supreme Court today.
I think that's actually a bit of a strawman of the "living Constitution" position. If I write a letter that is read 100 years from now, it would be absurd to say that what my words "mean" should be interpreted in any way other than how I would have understood them. Clearly, very smart people would not subscribe to a patently absurd idea like that.
Instead, I think they subscribe to the idea that the meaning of the words on the page isn't the be-all end-all. That the framers intended the independent judiciary to exercise discretion within the general bounds of the Constitutional text.
Which was the point of my original post upthread: it's not really unclear what the text "means"--we just disagree about what to do with that information.
>That's a circular argument: "The meaning of the words to the people who wrote the words doesn't matter because we don't think the original meaning is what governs today."
That's not circular. That's pretty much exactly what you do when you take a balancing approach to conflicting interests. Some part of the original meaning is often tossed out. It happens a lot in Speech cases, and (in my opinion) is happening more frequently with 4th Amendment cases.
>I think that's actually a bit of a strawman of the "living Constitution" position.
Maybe.
>Clearly, very smart people would not subscribe to a patently absurd idea like that.
It doesn't matter what we think very smart people would or wouldn't do. The constitution means what the Supreme Court says it means, and the justices themselves are free to interpret however they wish. The current bench contains a variety of approaches, some fairly divergent from originalism, which it sounds like you prefer.
At this point you're probably a little bit surprised to learn that I do ascribe to originalism as my preferred approach to constitutional law. I can appreciate the other approaches, but there's the slippery slope of making the constitution fit whatever it is that we're trying to accomplish today, and at that point we might as well be like the British again and have no written constitution. Constitutional positions aside, though, I'm not a huge fan of capital punishment, whether or not the 8th amendment permits it (it does).
> Obviously many others do not, hence the mix of people you see on the Supreme Court today.
Even the ones that aren't "originalists" (textualists aside) tend to view that the original meaning governs, they just tend to believe that the original meaning itself of many important provisions incorporated sensitivity to changing external context than the people that label themselves "originalists" do.
> Originalists/textualists just think the words on the page are the words on the page.
Er, no. While that's the marketing spiel for textualism (the words in a legal enactment, including the Constitution, mean what the words mean in their ordinary meaning), its very much not for originalism, which focuses not on the meaning of the bare words, but of the meaning-in-original-context of the words (including looking to things like legislative intent.) While textualism and originalism are often held by thinkers of similar political backgrounds (both approaches are frequently associated with the political right) and people purporting to follow them often come to very similar conclusions, they are quite different philosophies.
> If the words proscribe certain things then so be it, but otherwise, democracy controls.
Neither originalists nor textualists tend to think that the Constitution is a document under which everything which is not prohibited is allowed; quite the opposite, in fact.
I'm not conflating the two. Textualists reject reliance on legislative intent, but still recognize that the "ordinary meaning" of the words is what the words meant (in general) when they were written. If the Constitution uses the word "blue" but in 1789 "blue" meant what we would think of as "green," a textualist would interpret the word to refer to what we think of as "green." But she would reject any attempt to dive into the legislative history to see what Congress intended to do by using those particular words.
> Neither originalists nor textualists tend to think that the Constitution is a document under which everything which is not prohibited is allowed; quite the opposite, in fact.
We are talking about state law here. States are not governments of enumerated powers.
> Meanwhile, folks who study Shakespeare are going back to not only the original meaning, but the original pronunciations of the words to fully understand the text.
Legal documents tend to rely far less on puns and rhyme than does entertainment.
You two are now arguing about which side is better represented by a particular strawman. Both of you seem to be assuming that "the other side" is far more monolithic than realistic.
[1] I oppose the death penalty as it is used today. Making an example of psycho serial murderers is pointless, because it's not like that conduct can be deterred.