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Tuesday, May 6, 2008

As We Wait for the Final Numbers…

posted by on May 6 at 22:02 PM

I recommend this NYT editorial on John McCain:

While Democrats voted in North Carolina, which Mr. Obama won, and in Indiana, which was too close to call at press time, Mr. McCain spoke about his judicial philosophy. He is determined to move a far too conservative and far too activist Supreme Court and federal judiciary even further and more actively to the right.

Mr. McCain predictably criticized liberal judges, vowed strict adherence to the founders’ views and promised to appoint more judges in the mold of Chief Justice John Roberts and Justice Samuel Alito. That is just what the country does not need.

Since President Bush chose Justices Roberts and Alito, the court has ordered Seattle and Louisville to scrap voluntary school integration, protected employers who illegally mistreat their workers and constrained women’s right to choose and citizens’ right to vote.

Mr. McCain did not mention, of course, how the Roberts-led court blithely overruled Congress by nullifying an important part of the McCain-Feingold campaign finance law. He did wax nostalgic about what “the basic right of property” has meant “since the founding of America.” (He did not mention that in 1789, many women could not own property and African-Americans were property, but he did criticize the idea that values evolve over time.)

I am very close to a 3L law student, and I have been distressed as to the slow migration of his ideas about the judiciary over the last couple of years. The Constitution is neither living nor dead—it’s a text, like any other. Call me a doctrinaire English major, but I know that even words and phrases change meaning over time. We cannot divine the founder’s true intentions through their writings, and it’s useless to try.

I’ve had a very hard time understanding why the court’s most hardcore Catholics have cleaved to dunderheaded, precedent-defying originalism. Weren’t they taught from the cradle that both scripture and tradition have their place? Literal interpretation of anything, from the Bible to the Constitution, is folly. “We the People” now signifies something wholly different from the meaning it had for the founders, and we’re all better off for it.

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The argument for originalism is:

If you want to change the constitution, you have to do it through the legislature. Until Congress changes it, the constitution says what it originally said.

Law gets its life from the legislature, we should not allow the text to grow and change on its own.

If it is antiquated than Congress must fix it.

I don't agree, but I don't think it's dunder headed.

Posted by Sandy | May 6, 2008 11:07 PM

@1: That presumes that words have meaning outside of the reader. Justice Scalia believes in some sort of "mechanistic" interpretation of law; if such a method actually exists, I'm sure there are a number of computer scientists working in Natural Language Processing that would love to hear about his algorithm.

Asking "What would people who lived 200 years ago think about this issue" is a dumb question. Two years of law school have just convinced me more and more that textualism and originalism are both equally dumb constitutional interpretation strategies. Give me penumbras and emanations any day over that bullshit.

Annie - grats on being 2/3rds done. I'll be in the same place as soon as I finish writing my remaining two papers.

Posted by AnonymousCoward | May 6, 2008 11:41 PM

@1: I am aware of the argument, and I still think it's dunderheaded. Yes, legislatures create law; that's their purpose. But we'd be a civil law society if courts weren't supposed to make some law of their own. Common law inherently accords more power to the courts. Anyway, I have no idea how originalists deal with the Ninth Amendment (as I understand it, no one deals with the Ninth Amendment, but it's still an amendment). To my reading, the Ninth Amendment takes a transparent position that the Constitution extends beyond the page it is written on, and that is has things to say about issues that haven't yet come up or that the Constitution doesn't specifically address.

@2: Flattered, truly, but I'm not the 3L; my friend is. Congrats yourself. Am I saying anything stupid?

Posted by annie | May 7, 2008 12:36 AM

As someone who will be a 2L in a week and a half, I implore you not to blame us when we go crazy, its not our fault. Law School destroys the idealism of the law.

Posted by vooodooo84 | May 7, 2008 1:04 AM

#4 has it: even if we cling to our outrageous notions about interpreting the law in a manner befitting the times, most of us come out convinced that no court would follow. (Don't hate the lawyers, hate the law schools...?)

Posted by Ursula | May 7, 2008 7:13 AM

The papists Supreme Court is the last straw in the destruction of a just and free America. And yet, they keep voting for Republicans. The American people will have voluntarily destroyed the last great hope of mankind. What a pity.

Posted by Vince | May 7, 2008 9:25 AM

@3 and 2, I know the argument against originalism. In fact I am a big fan. I would also take a penumbra over a stretch back 200 years any day. But like I said, I don't think it's dunder headed.

I'm also 2/3 of the way done!!! Woo, good job 2, rock on.

Posted by Sandy | May 7, 2008 2:53 PM

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