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September 2005 Archives

September 26, 2005

Didn't do the reading assignment?

I usually assume that the New York Times' bizarre theories of constitutional interpretation come from the fact that they just don't care what the constitution says; they think their own personal ideology is more important. But perhaps there's another, simpler explanation; perhaps they've just never read the constitution at all:

In Iraq, the elimination of expectations is on display in the disastrous political process. Among other things, the constitution drafted under American supervision does not provide for the rights of women and minorities and enshrines one religion as the fundamental source of law. Administration officials excuse this poor excuse for a constitution by saying it also refers to democratic values. But it makes them secondary to Islamic law and never actually defines them. Our founding fathers had higher expectations: they made the split of church and state fundamental, and spelled out what they meant by democracy and the rule of law.
They did? I suppose it's arguably true, if you ignore the constitution and look at documents such as the Federalist Papers. Seems strange to complain about omissions in the Iraqi constitution by pointing to documents extraneous to our constitution, though.

But while that's arguable, the next sentence is not:

It's true that the United States Constitution once allowed slavery, denied women the right to vote and granted property rights only to white men.
Quick quiz: can anybody point me to the section of the Constitution that "denied women the right to vote" or "granted property rights only to white men"? The latter claim is particularly odd, because while women generally didn't have the right to vote, free blacks certainly did have the right to property.

So, maybe the reason that the New York Times is regularly so horrified at the thought of the Scalia/Thomas originalism doctrine of jurisprudence is because they simply have no idea what the constitution originally said.

The Times is lying, by the way; the Iraqi constitution does "provide for the rights of women and minorities" and does not make democratic values "secondary to Islamic law." (It's true that the document does not create a wall of separation between church and state, but (a) neither does our constitution, (b) neither does that of almost any other country, and (c) it does protect religious liberty.)

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