Sunday, November 25, 2018

Originalism and State Constitutions

Originalism a la Scalia is the conservative/libertarian philosophy of interpretation of the US Cnstitution.  It seems to have different flavors: interpret the words according to their meaning at the time of adoption; interpret them based on the intentions of the writers, etc.

As a liberal I don't buy it, but it does seem to be a more consistent doctrine than anything on the liberal side.  I suspect, though, that the doctrine gains support because of our glorification of the "Founding Fathers".  Americans like to believe they were wise lawgivers, like Moses coming down with the  Ten Commandments. 

In the recent election we voted on a couple amendments to the Virginia constitution. They were rather specific.  The language of one meant adding this provision:
(k) The General Assembly may by general law authorize the governing body of any county, city, or town to provide for a partial exemption from local real property taxation, within such restrictions and upon such conditions as may be prescribed, of improved real estate subject to recurrent flooding upon which flooding abatement, mitigation, or resiliency efforts have been undertaken.
That amendment isn't comparable to the amendments of the US Constitution. 

The VA site on the constitution observes:
Virginia signed its first constitution in 1776 upon the signing of the Declaration of Independence. Since that time, there have been frequent amendments and six major revisions to the constitution: 1830, 1851, 1864, 1870, 1902, and 1971. Our current constitution is an amended version of the 1971 constitution. These revisions to the Virginia constitution are representative of the political, social, regional, and racial climate of the times.
The writers of the original constitution were some of the Founding Fathers--Madison, Jefferson, Wilson, so one would think that we should have revered their language just as we do the US constitution. But we didn't, nor have we done so with later revisions.  See this site for state constitutions.

So my question for the originalists--does/should the doctrine apply as well to state constitutions?

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