Posted by Randy Barnett:
Ask About Clauses Not Cases:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247493505
In my Wall Street Journal op-ed today, [1]The Seinfeld Hearings, I
urge the Senators to ask her about the meaning of the Constitution,
not how she would rule in particular cases. The Journal added a very
nice sub-head: "How Senators could, but probably won't, make the
Sotomayor confirmation a show about something." Here is how the piece
ends:
Supreme Court confirmation hearings do not have to be about either
results or nothing. They could be about clauses, not cases. Instead
of asking nominees how they would decide particular cases, ask them
to explain what they think the various clauses of the Constitution
mean. Does the Second Amendment protect an individual right to
arms? What was the original meaning of the Privileges or Immunities
Clause of the 14th Amendment? (Hint: It included an individual
right to arms.) Does the 14th Amendment "incorporate" the Bill of
Rights and, if so, how and why? Does the Ninth Amendment protect
judicially enforceable unenumerated rights? Does the Necessary and
Proper Clause delegate unlimited discretion to Congress? Where in
the text of the Constitution is the so-called Spending Power (by
which Congress claims the power to spend tax revenue on anything it
wants) and does it have any enforceable limits?
Don't ask how the meaning of these clauses should be applied in
particular circumstances. Just ask about the meaning itself and how
it should be ascertained. Do nominees think they are bound by the
original public meaning of the text? Even those who deny this still
typically claim that original meaning is a "factor" or starting
point. If so, what other factors do they think a justice should
rely on to "interpret" the meaning of the text? Even asking whether
"We the People" in the U.S. Constitution originally included blacks
and slaves -- as abolitionists like Lysander Spooner and Frederick
Douglass contended, or not as Chief Justice Roger Taney claimed in
Dred Scott v. Sandford -- will tell us much about a nominee's
approach to constitutional interpretation. Given that this is
hardly a case that will come before them, on what grounds could
nominees refuse to answer such questions?
Of course, inquiring into clauses not cases would require senators
to know something about the original meaning of the Constitution.
Do they? It would be interesting to hear what Sen. Al Franken
thinks about such matters, but no more so than any other member of
the Judiciary Committee. Such a hearing would not only be
entertaining, it would be informative and educational. After all,
it would be about the meaning of the Constitution, which is to say
it would be about something.
BTW, on FNC, I just heard Megyn Kelly ask Karl Rove about "legal
realism" which is the subject of the beginning of my op-ed.
References
1. http://online.wsj.com/article/SB124744026183929741.html
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