Conservative Constitutional Hypocrisy

Justices who say they stick to the text of the Constitution did nothing of the sort.


But that's not what the advocates of original intent and an unchanging Constitution asked. They asked, instead, whether the world has changed sufficiently that we no longer need to worry about discrimination against blacks, and whether the Civil War and all that is now long enough ago that we needn't worry about what the Reconstruction Congress that wrote the Reconstruction Amendments thought. Now, you might or might not agree with the Courts' answer to that question, but you can't really disagree with this: If they really meant what they say about original intent, an unchanging Constitution and judicial deference, that question is utterly irrelevant.

In case you hadn't noticed before, the posturing by strict constructionists and originalists has now been definitively revealed to be the jurisprudential equivalent of the Emperor's New Clothes. That's too bad, not just for the results in this case – the first time the Supreme Court has ever come out for fewer voting rights – but for what it does to the legitimacy of constitutional law and the Framers' intentions.

Eric Schnurer is president of Public Works LLC, a public-policy and management-consulting firm that works with state and local governments across the country. He has served as a gubernatorial chief-of-staff and speechwriter or policy adviser to governors, senators and presidential candidates.

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