Wickard

[Sanford Levinson]

Earl writes:

Originalists simply view the Constitution as a kind of super-statute.  One
would not say that judicial
>decisions interpreting statutes "amend" the statute in any meaningful
>sense.


Well, I am "one" who would gladly say that, in some instances, judicial
decisions "interpreting" statutes are "really" "amending" them.  Obviously,
this requires us to have some notion of what limits there are to
"interpretation," but, just as obviously, there is no reason to accept a
court's self-interested claim that it is only "interpreting" a statute.  It
seems to me, for example, that Blaisdell "amends" the 1787 Constitution by
adding the word "unreasonably" to the Contract Clause, so that the
operative meaning is that no state shall pass a law unreasonably impairing
the Obligation of Contract.  As it happens, this rereading of the
Clause  is absolutely fine with me, but I can readily understand the view
of someone who would say that the Court went far beyond the barriers of
"interpretation" into rewriting (i.e., "amending") the Constitution to make
it more sensible.

>....
>I assume that few would challenge the idea that lower court judges are
>bound to follow such superseding texts, even if the the judge believes that
>the decision by a higher court is an incorrect interpretation of the
>statute or Constitution.

In fact, I have challenged this idea as well.  Let's try the following
thought experiment:  Would Earl (and others who agree with him) change the
oath of office for "inferior" judges to read (something like):  "I promise
to support, protect, and defend the Constitution of the United States, as
it is interpreted by the Supreme Court."  Ditto, incidentally, on the
presidential oath of office in Article II. Presumably, justices of the
Supreme Court don't have to take the same oath, which would immediately
suggest, to the metaphysically minded, that there are (at least) two
"Constitutions," the one consisting of interpretations by the Supreme
Court, the other consisting of whatever it is that the Supreme Court
consults in orrder to find out what "the Constitution" means.

sandy