The Wall Street Journal published excerpts from a talk Justice Thomas delivered at the Manhattan Institute last week. As usual, Thomas cuts right to the heart of the question, namely: how should we interpret the Constitution? The whole thing is worth a read, but here is the key part: (more…)
Professor Franck nails it:
This highlights what is perhaps the most salient difference between conservatives and liberals today regarding constitutional interpretation—for conservatives most certainly do have a theory, and a wholly satisfactory one, namely originalism. It is not a flawless theory, or at least not a wind-up machine of utmost simplicity: it is not self-executing, and its practitioners have sometimes markedly different conclusions about the Constitution’s meaning. But it has at least three advantages. First, it supplies interpreters with a common vocabulary and a set of common premises for the beginnings of constitutional reasoning. Second, it is the only interpretive method that supplies even potential safeguards against the judicial abuse of the Constitution and the rule of law. And third, its principles, honestly applied, force the interpreter to set his politics aside as irrelevant to the interpretive task.
In case any of y’all are still looking for a reason to support McCain over the likes of Obama:
McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court . . . . The question, as always with McCain these days, is whether he means it. Might he really be a “maverick” when it comes to the Supreme Court? The answer, almost certainly, is no. The Senator has long touted his opposition to Roe, and has voted for every one of Bush’s judicial appointments; the rhetoric of his speech shows that he is getting his advice on the Court from the most extreme elements of the conservative movement.
In his latest post, my good friend Publius–still smarting from this juris-jitsu beatdown–laments:
What’s particularly annoying about conservative jurisprudence is not so much that it’s political, but the obnoxious self-righteous denials that it is even slightly political. Their positions (which practically all align with their political views) are not policy preferences but simply “interpretations” of a “static” constitution, or the will of the framers, or whatever.
Ah yes, because every originalist I know just loves flag burning, marijuana-plant growers, making prosecutors’ lives more difficult, local cultivation and consumption of marijuana (and yes, I know Scalia went the other way in Raich), etc.*
And as for this originalist, you can also add Roper v. Simmons to the list. As an abolitionist, I welcome the result in Roper (i.e., that it is unconstitutional to impose capital punishment for crimes one commits as a juvenile), but I also firmly believe that the Court’s holding in that case is a judicial abomination.
But hey, it’s all about politics. Right, Publius?
By the way, how many decisions can y’all think of where a liberal justice “interpreted” the Constitution in a way that rendered (or would have rendered) a politically-conservative result? There may be some out there, but I must confess that none spring to mind.
*Here’s a project for SA’s law-geek readers. Why don’t we compile a master list of originalist/textualist decisions/opinions that rendered (or would have rendered) politically-liberal results, and then we can refer to this master list every time our friend Publius tries to make this silly assertion.
Sorry, Publius, I gotta agree with Ike.
Freedoms and liberties gained outside the rule of law always end up causing more harm than good in the long run. Therefore, while I certainly appreciate and embrace many of the results from the Warren Era of the Supreme Court, the fact remains that Warren was an awful Chief Justice, who penned and cobbled together some of the most pathetically-reasoned opinions in the Court’s history. Indeed, as some constitutional scholars have demonstrated, some of the Warren Court’s decisions can be justified on different grounds vis-a-vis the text, structure, and history of the Constitution.
Thus, while Publius and I are in agreement that rogue Southern officials deserved to be smacked down with impunity by the feds for their outrageous, illegal, and immoral resistence to recognizing the natural/civil rights of African Americans, this governmental rebuke should have come from Congress and not the Supremes. We have three branches of government and separation of powers for a reason, folks, and if our elected legislators aren’t doing their jobs, then they need to be voted out of office by “we the people.”
The rule of law is not simply “abstract logic and interpretative theory.” It is (or should be) much more than that. As Cicero once remarked, “We are in bondage to the law so that we might be free.” And this “bondage” requires that we work to eradicate injustices, wherever we find them, through the system designed by the founders/framers, rather than by creating law out of wholecloth.
Professor Cass R. Sunstein has a new law-review article out, “Burkean Minimalism,” that many of SA’s readers may be interested in reading.
(Thanks to Andrew for the link)
Ohio State history professor Saul Cornell is the author of the new book A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006), and of the law review article “St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings,” 47 W. & M. L. Rev. 1123 (Feb. 2006). Cornell is a talented writer and researcher, but his treatment of some topics is extremely misleading. In a new draft article, “St. George Tucker’s Second Amendment: Deconstructing ‘The True Palladium of Liberty’,” Stephen P. Halbrook takes the reader step-by-step through Tucker’s monumentally influential annotated American Blackstone, the most important legal treatise of the Early Republic. Analyzing Tucker’s Blackstone, and other writings by Tucker, Halbrook shows that Tucker explicitly recognized the Second Amendment as an individual right, including the right to posses firearms for personal self-defense, unrelated to militia duty. As Halbrook proves, Cornell has built has argument through highly selective quotations and the omission of portions of the treatise which directly contradict Cornell’s thesis.
Professor Kerr has the details on Hahvahd’s plans to do just that. Now, I am well aware that the Hahvahd folks could care less what some country lawyer thinks about this idea, but fwiw I am all for it.
I do, however, have a few minor suggestions that I would like to offer up for consideration. Why not break the first year of law school down in the following manner:
First Semester:
The Constitutional Debates: Examining the debates from the federal and state constitutional conventions.
Constitutional text, structure, and history
It’s not in there!: Imagined constitutional rights, penumbras, judicial activism, and the “Prego” Constitution.
Statutory Interpretation & Textualism
Federalism & States’ Rights
Second Semester:
Originalism and the jurisprudence of Justice Clarence Thomas
Ignoring legislative history, the common law, and stare decisis
Justice Kennedy: Worst supreme court justice ever?
The Bork nomination and the politicization of the judicial nomination process by the legal left
The Nondelegation doctrine
This post over at the Volokh Conspiracy may be of interest to SA’s many law-nerd readers.
You may want to check out the comments as well. I am currently engaged in a debate with a fellow named Simon that some of y’all might enjoy reading.
Is it just me, or is this an extremely odd endeavor?
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