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SecularizationOfTheLaw 12 - 22 Jan 2008 - Main.KateVershov
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I am not sure if this discussion belongs under a new topic thread or a comment to the class notes. Since it's rather long, I decided to open up a new thread. | | | The saying that "The Constitution means what five votes... say it means" is true where Constitutional provisions admit of debate and false where they do not. While the very question of whether a given provision even admits of debate is a question subject to change with circumstance and time, there are still Constitutional provisions today that, at least right now, seem so definite and certain that no judge would feel free to reinterpret them, even if he felt it were warranted. The Constitution may not derive authority from antiquity per se, but the effects of being bound by the Constitution are, as outlined above, sometimes similar to the effects of being bound by a Blackstone or a Coke, as 19th century judges felt themselves to be. My question is, do we want a radical neo-Holmes (certainly not Holmes himself, because he presumably would think this a terrible idea) to come in and tell us that "The Constitution means what five votes say" is more than a clever line that rings true, but rather is a basic principle that ought to be up front and clear in judicial opinion-writing, because that's what judges do anyway? And should we also be told that even the clearest Constitutional provisions oughtn't be followed where judges find that there is no good policy rationale for them? We're no longer in the 19th century by any stretch, but judges today, while acknowledging their own law-making ability, probably don't believe that it extends that far.
-- MichaelBerkovits - 22 Jan 2008 | |
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The problem of course in not that we have a written constitution. The problem is that we have a constitution which we choose to interpret by examining the historical context within which it was written. We essentially see the Constitution as crystallizing the law as it was at one point in time - one with a significant distinction between actions at law and equity. On the one hand, we want a government that is congruent with the vision of the Framers, but on the other hand, even the Framers themselves understood that the law would evolve, as would the needs of society. In my view, justices should attempt to create laws which reflect the values upon which the Framers' vision relies, even if that means breaking free of the confines of historical context. I think justices should give up the pretense of historical analysis (which is becoming both more difficult and less relevant), acknowledge their role in "adapting" the Constitution to the times (one that should be applauded instead of berated lest we want to destabilize our government), and have the courage to declare that certain modern institutions, proceedings, and technologies simply have no analog in the past. The values and ideals the Framers wished to seed in this country should trump the rather limited black letter law within which they tried so arduously to capture them. The Constitution is simply an expression of an idea, an imperfect and finite expression. Justices should protect the idea and not its expression.
-- KateVershov - 22 Jan 2008 | | |
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