1. What is original meaning originalism? What is The Living
Constitution? Prof. Gary Lawson says "Interpreting the Constitution is
no more difficult, and no different in principle, than interpreting a
late-eighteenth-century recipe for fried chicken." Suppose your
great-grandmother's written recipe for fried chicken calls for half a
teaspoon of "pepper." But maybe you like rosemary more than pepper. If
you substitute rosemary for pepper, are you being faithful to
great-grandma's recipe? Or are you amending it? How does the
Constitution provide for amendments? Suppose your will provides a legacy
for "Planned Parenthood." Would it be legitimate for a judge to
re-interpret your will by substituting "National Right to Life" for
Planned Parenthood because she prefers the former to the latter? If we
are faithful to the rule of law, how should we interpret recipes, wills,
statutes, and the Written Constitution?
Saturday, January 22, 2022
Originalism vs. The Living Constitution: Questions for Discussion
2. Justice Scalia says that originalism is the lesser of two
evils, the librarian who speaks too softly rather than the librarian who speaks
too loudly. He argues that the greatest defect of the Living Constitution—its
total reliance on the subjective moral and philosophical preferences of the
nine unelected lawyers who serve on the Supreme Court from time to time—is its
incompatibility with the Rule of Law, “the very principle that legitimizes
judicial review of constitutionality.”
What do you think he means by this? What is the Rule of Law
and how does it differ from the Rule of Man?
3. Defenders of the Living Constitution
argue that the Living Constitution is consistent with the Rule of Law because
it has developed as a kind of common law system under which the
"content" of constitutional law "is determined by the evolutionary
process that produced it." It is
evolution, not creation, and therefore the Supreme Court does not act as a
Creator, or Ruler, but merely as a body of judges presiding over this
"evolutionary process through the development of a body of precedents."
Or
is this a theory of "turtles all the way down," the idea that the earth
rests on the back of a giant turtle. But what supports that turtle? Of
course, the answer is a larger turtle which itself is part of a column
of increasingly large
turtles that continues "all the way down." Today's judicial decree is
supported by yesterday's judicial decree which is supported by earlier
judicial decrees all the way down. The written constitution is replaced
with an evolutionary process of judicial amendments which bind Congress,
the fifty state legislatures, and all 330,000,000 American citizens!
4. Proponents of the Living Constitution say that this
approach is necessary because it is too difficult to amend the Constitution
under Art. V, and thus common law evolution is necessary to provide the
flexibility that is necessary in order for the law to keep up with the changing
needs of contemporary society.
Which constitution is more flexible? The original Written
Constitution? Or the living, evolving, common law constitution?
5. When the Court comes up with a novel new doctrine, ask yourself this question: Was there ever a
time in American history when this new doctrine could possibly have
been ratified by three-fourths of the states (38 states today)? In 1789? In 1868 when
the 14th Amendment was ratified? In 2018? Ever? If your
answer to this question is "no"--a doctrine like this could never have
been ratified by we the people in the states (whose act of ratification
is what gives legitimacy to the Constitution)--what does this tell you
about the legitimacy of the Court's new doctrine?
