![]() And it seems this is the real problem for the critics. Instead, it leaves the resolution of those matters to elections and votes and the amendment process. It doesn’t dictate much about the burning social and political questions they care about. ![]() The Constitution is short-only about 7,500 words, including all its amendments. ![]() I suspect the real complaint of living constitutionalists isn’t with old laws generally so much as it is with the particular terms of this old law. Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise. And that meaning applies equally whether the government seeks to conduct a search the old-fashioned way by rummaging through the place or in a more modern way by using a thermal imaging device to see inside. As originally understood, it usually required the government to get a warrant to search a home. That guarantee doesn’t just apply to speech on street corners or in newspapers it applies equally to speech on the Internet. As originally understood, the First Amendment protected speech. It also applies to deliberate efforts to inflict a slow and painful death by laser. But that meaning doesn’t just encompass those particular forms of torture known at the founding. As originally understood, the term “cruel” in the Eighth Amendment’s Cruel and Unusual Punishments Clause referred (at least) to methods of execution deliberately designed to inflict pain. Originalism teaches only that the Constitution’s original meaning is fixed meanwhile, of course, new applications of that meaning will arise with new developments and new technologies.
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