Happy Independence Day, George Will!

I used to read George Will's columns all the time. That was when I subscribed to Newsweek, and Will's column was one of the many items that magazine picked up from its parent newspaper, The Washington Post. I'm not such a fan anymore, partly because George turned out to be a hypocrite on family values, like so many "conservatives," and partly because I now prefer The Economist to any of the American newsmagazines.

This column, from April 28th, is pretty good, however. I might note that one of the Senators on the Judiciary Committee actually asked Elena Kagin one of Will's suggested questions. (It was the one about Thurgood Marshall's statement that "You do what you think is right and let the law catch up." She dodged the question by pointing out that, if confirmed, she would be Justice Kagin, not Justice Marshall. That's trivially obvious; the point is: Would she make decisions on the basis of Justice Marshall's dictum?

Will supports Justice Scalia's notion that the Constitution doesn't change, and that, in fact, the purpose of constitutions is to prevent change. That's fair enough, but this whole original intent idea founders, it seems to me, on one fact. From the text of the Constitution, as ratified, it is clear that the intent of the framers and ratifiers was to count slaves as 3/5ths of free people. It is also clear that no one, no one, at the Constitutional Convention actually liked this provision. The Southerners wanted to count their slaves as full people, not out of regard for human rights, but because that would have given them a lock on the House of Representatives, as well as the Senate. Many Northerners didn't want to count the slaves at all, because the slaves were not allowed to vote and lacked the other rights of people included in the citizenry. In other words, the original intent was to make a compromise between incompatible positions, so that the Constitution could be completed. I don't see where a modern judge gets a lot of guidance from that, except for Abraham Lincoln's point: It's all about the Union.