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FEBRUARY 2, 2013 1:19AM

What is the Defense of Original Intent? Ulysses at the Mast

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That is really the basis of Original Intent, the story of Ulysses at the Mast.

In the Odyssey, Ulysses is leading his men through dangerous straits, where the Sirens call out, luring sailors to deviate from the correct long-run course for short run game, and therefore to their doom.

Ulysses knows this, just as he also knows that when it comes time to sail through the Straits, he will in fact swerve due to the lure of the Sirens, instead of Staying the Course.

His solution?

Tying his hands to the Mast, so that in spite of his crew's complaints, he can't swerve.

That is the same logic as  Constitutionalism, to bind ourselves so that we don't do things in the moment that seem like a good idea, lured by popular demogogues to our doom.

Homer wasn't dumb, and neither were the people who wrote the Constitution, unlike the slanders put out by an alleged scholar of Constitutional law in the New York Times, calling for the Constitution to be abandoned.

That is merely the logical conclusion of Living Constitutional juriprudence, to abandon Constitutional frameworks, if the story of Ulysses means at least we can't say we weren't warned.


Whoever,  unaware,  comes  close  and  hears  the  Sirens'  [lucid  song]  will nevermore  draw near...  his home ....  But if you wish to listen to their

song, just stand erect before the mast  and ...  tie fast your hands and feet

.....  But...  if you  plead with  [your  crew]  to loose those  bonds,  they

must  add  still more ropes  and knots.


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I agree. Furthermore, even if we did abandon the American Constitution [which we won't], what might we replace it with? The Canadian Constitution?

In a perfect world, that would be just great. Hey, I like Canada. And Canadians, like Chinese food, are respected everywhere. Yet, history tells us that good ideas [the Constitution] are seldom replaced by another good idea, but rather, that good ideas are replaced with bad ideas that were funded by some special interest group.
We would according to the law professor replace it with pleibiscites and total unrestrained majority rule, and probably regret it. Thank you for coming over btw, not many do here.
Really like the imagery here, and your point is well taken.
Hi onlandistime. It's a standard image in dynamic economics, the study of decisions over time, like addiction and the Jane's Addiction song, Jane Says, "Gonna kick tommorrow."
I view it as simple contract law, really- the rules for amending the charter are there, and there for a reason. Those of us who wish to keep it, will. Those who don't may form a different compact, preferably not in competition or at war with ours, but......
The terms are highly malleable, Don. Citizens United was a direct assault on "originalism" and Heller a defiance of both originalism and textualism. As far as a living versus Scalia's dead, dead, dead Constitution, We the People doesn't mean a damn thing if it doesn't mean we the living people. The dead were never intended to be the sovereign.

I didn't agree with that article you cite, as it's always been more about who interprets it than what it says, in controversial decisions. Originalism or textualism can be, and seem to be, no more different than what I call origamism or alphebetism*, or other forms of stick in it what 5 Justices want-ism.

Originalism is just a way to obtain ideological goals by pretending to know something specific extracted from selective history or quotes. This and "textualism" was used in Citizens U to force upon the public something a whopping majority don't want and know is destructive to democracy. When a 5 man ideological legislature can defeat Majority Will, and thus the spirit of the Constitution, it doesn't gain respect for either supposedly interpretive device. It exposes them as fraudulent.

* see my Supreme Court Cure for Obamacare
From Jane's Addiction to Homer--you get the Widest Range of Cultural Reference door prize of the day.
Door prize accepted, beer prize for PJ still owed :) :)