With the Declaration of Independence in town, now is a good time for this discussion. In a post a couple of days ago, He should have stuck to the rough draft, Spot assails American icon Thomas Jefferson for permitting a Creator to creep into one of the recitals of why were divorcing George III:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . .
Spotty grumbled that the language was the centerpiece of the conservative Christian argument that the U.S. was founded as a Christian nation, and that God was the ultimate source of law - as the Christian conservatives understand it, of course.
Commenter Lee said this about the post:
Advocates of a living constitution believe, as a matter of law, there is a greater and ever-evolving force that controls our laws. Don't they?
Isn't the issue only which god/force the advocates of various positions rely on to make their points?
Now, Lee is a crafty fellow, because he knows that Spot is an enemy of constitutional originalism. In one of the greatest over-generalizations that Spot has ever been guilty of, Spot will say that originalism says that the Constitution means exactly what the framers meant at the time. The living Constitution types, of which Spot is one, say, "Oh, come on. The document was adopted in 1787; we have learned a few things since then."
Death penalty? Did we have it in 1787? Okay then; no problem. That's the originalist position.
We know a lot more about human nature, the frailty of any human endeavor, including truth-seeking in court, and standards of basic humanity have evolved (now there's a scary word to conservatives!) to the point where doubts have to be expressed as to whether the death penalty is "cruel and unusual" as proscribed by the Eighth Amendment. That's the living Constitution argument.
What Lee posits is that the religion-Creator-source-of-law types are a branch of the living-Constitution camp.
But they are clearly not. Let Spot ask you this, boys and girls. How much has religion really changed since the Bible and the Koran (each written by human beings, by the way) were written? For the religious fundamentalists, who believe in the inerrancy of their ancient texts, none. The Bible was fixed in stone - again by human beings - some time in the fourth century, C.E. Not a word has been added or subtracted from it since then.
How would you like to see a fourth century physician, boys and girls? Or dentist? Let's zoom forward to the zenith of the Inquisition. Would you like your free speech case heard in front of Tomás de Torquemada? No? Why not?
In each of these cases, their understanding of the world has been eclipsed by all of the advances that humans have made: in philosophy, ethics, science, politics, and even in the pseudo-science of economics (Spot has a degree here, so no wounded bellowing from you economist types). We accept the advances in medicine (for the most part, except for things like stem cell research) readily, but religious conservatives are unwilling to shed the dogma and teaching of primitives.
Religion has been dragged, kicking and screaming, every inch of the way into the modern age. Spot read somewhere recently that Galileo was pardoned for his heresy by the Vatican in 1992. This is only some twenty-odd years after men walked on the moon. Spot also thinks he read somewhere that Pope Benedict recently wrote something about "rejecting modernity." He's infallible, you know.
The people who most want the "endowed by their Creator" language to really mean something are the same people who would cheerfully gut you like a trout for heresy.
There is in fact a huge parallel between constitutional originalism and religious conservatism. Both are profoundly backward looking in their search for information and in their judgments. It is not a coincidence that Justice Scalia, a very conservative Catholic, is also the principal champion of constitutional originalism.