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Wednesday, June 16, 2004

If Only They'd Signed Digitally

O. Carter Snead (General Counsel of the President's Council on Bioethics) has a fascinating essay in The New Atlantis about how new technologies affect constitutional interpretation, Technology and the Constitution. A sample:

Because of its defining feature–the requirement that constitutional provisions be construed according to their original meaning–originalist textualism is profoundly affected by advances in science and technology. In cases and controversies in which such advances are centrally involved, originalist jurists are required to discern and apply temporally fixed concepts to circumstances and possibilities that could never have been contemplated by the authors of the Constitution. This collision of fixed meaning and novel realities born of technological progress stands to force a "crisis of construction," where fidelity to originalist textualism is greatly complicated or costly, and in some cases yields politically undesirable or untenable results.

He concludes with a question ("whether the solution to this growing challenge is to empower judges to interpret the Constitution by their own initiative and whim–and therefore to rely on their understanding of the significance and character of new technologies") and discusses the ramifications of the competing approaches.

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