Posted by Jim Lindgren:
Calabresi on Originalism in the Wall Street Journal.--
http://volokh.com/archives/archive_2007_09_30-2007_10_06.shtml#1191512758
Steven Calabresi (my colleague at Northwestern) writes about
originalism in the Wall Street Journal (it is available free [1]here):
The Right Judicial Litmus Test
[T]he proper basis on which we should evaluate the Court�s
performance in this term and in the future is not whether it
reaches �conservative� or �liberal� results in constitutional
cases, but whether it reaches results that are faithful to the
Constitution as written and understood at the time of its adoption.
Likewise, the test for presidential candidates on the judiciary
should be whether they can be trusted to nominate Justices who will
follow our written Constitution.
The belief that judges and Justices should decide constitutional
cases on this basis is known in academic circles as �originalism.�
This approach may seem so obvious that it should hardly need a
name, let alone a defense.
Nevertheless, analysis of whether this was or was not what the
Justices did was strikingly absent from most of the discussion
about the Court�s last term. Indeed, the possibility that judges
and Justices can even decide cases on the basis of the Constitution
as written is the view only of a small, though growing, minority in
the legal academy. Originalism is often dismissed as either
hopelessly naïve or as cynical obfuscation. . . .
In fact, much of the complaining by the left about the Supreme
Court�s decision last spring to uphold the federal partial birth
abortion statute was that it was not a faithful effort to apply the
Court�s abortion precedents as they had previously been understood.
Many on the left claimed this was a profound threat to the rule of
law.
There is no good reason, however, to think that the rule of law
requires us to follow newly-minted Supreme Court precedent but not
the Constitution. To the contrary, it is crystal clear that there
will be many times when the exact opposite is the case. The Court�s
own power to decide constitutional questions derives only from the
Constitution�s status, together with treaties and federal statutes,
as �the supreme law of the land.� The Constitution�s character as
law makes it binding on the courts of law, including the Supreme
Court. This is what empowers those courts to decide what the
Constitution means.
Accordingly, the Supreme Court must have the duty and power to
overrule its own unconstitutional precedents, just as it has the
duty and power to disregard unconstitutional statutes and treaties.
This authority is well established and indeed has been recognized
since the earliest days of the republic.
This authority is also a practical necessity. Because the Court is
composed of human beings, it is inevitable that it will make
mistakes. This includes big mistakes about the meaning of the
Constitution that, left uncorrected, work a continuing, significant
distortion on how our government functions. This is exactly what
happened, for example, in Plessy v. Ferguson, where the Court
upheld a law requiring segregated rail cars that violated the words
of the Fourteenth Amendments.
One solution to a mistake like Plessy might be a constitutional
amendment. But while amendments to overturn Supreme Court decisions
have been proposed thousands of times in the 218 years of American
history, only four have passed. A constitutional amendment can
currently be blocked by one house of the legislature in 13 states.
The 13 least-populous states comprise less than 5% of the U.S.
population. In other words, an amendment could be supported by 95%
of the population and yet it could still be blocked, even if all
the amendment did was to restore the original meaning of the
Constitution.
Thus, a constitutional amendment outlawing segregated schools, for
example, would never have passed in 1954. In situations like this,
fidelity to the Constitution and the rule of law absolutely
demanded that the Supreme Court be able to correct its own mistake
by, as in this situation, overruling Plessy root and branch.
Calabresi�s WSJ op-ed launches a newly published [2]collection of
essays on the rounds of the originalism debate that Calabresi and the
Federalist Society helped to initiate a quarter century ago.
Although that debate has influenced my thinking considerably, I have
trouble fully embracing any particular strand of originalism or of the
idea that used to be called the "living Constitution." As I get older,
perhaps with I might acquire enough wisdom on constitutional issues to
develop a coherent judicial philosophy�or perhaps all that will happen
is that my hair will become thinner and grayer.
References
1. http://www.fed-soc.org/publications/pubID.413/pub_detail.asp
2. http://www.fed-soc.org/store/id.468/default.asp
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