Just What Is 'Interpretive Equality'?

Levinson SLevinson at mail.law.utexas.edu
Sun Feb 1 22:37:48 PST 2004



From: Lawrence Solum <lsolum at sandiego.edu>

I have a question for Sandy Levinson.

Levinson writes in part:

>But then we come to that small group of decisions that cut to the quick of what kind of society we are and, just as much to the point, what kind of world our children (and my one-year-old granddaughter) are likely to inherit.  With regard to those few decisions, every institution, every individual, has a right/duty to interpret the Constitution (and, beyond that, since the Constitution ultimately takes second place to the requirements of justice (however *those* are derived, another complicated topic)) for him/herself.  This is why the plurality opinion in Casey makes very little sense:  For those who view abortion as murder (and Roe as constitutional usurpation to boot), it is little short of silly to tell them that "the Court has spoken, now the rest of you just kindly shut up."

Sandy,

Does having "a right/duty to interpret the Constitution" MEAN "having a right/duty to interpret the Constitution and act on the basis of that 
interpretation" OR does it MEAN "having a right/duty to interpret the Constitution and to advocate and seek to institutionalize that interpretation" or something else?  Are you trying to get at horizonatl stare decisis in the Supreme Court OR at the athoritativeness of the Supreme Court as an 
institution or BOTH or NEITHER?

Larry
_______________________________________

Certainly the latter:  I.e., to attack Supreme Court decisions as illegitimate and urge others to do what is reasonable to overturn them.  ("what is reasonable" is clearly a fudgy term:  It might mean leading a litigation campaign to get the Court to reverse them, advocating such legislation as RFRA in effect to overrule them, or advocating a constitutional amendment.  I take it that this isn't controversial.)

As to the first, i.e., *acting* on the basis of one's own constitutional interpretation.  This takes us into the world of civil disobedience.  In Constitutional Faith, I distinguish between conventional civil disobedience, where one acknowledges that one is violating "the law" and does so in the name of a higher morality, and a form of disobedience where one says that one is in fact being faithful to the Constitution and that it is the magistrates who are unfaithful to its mandate.  (I quote the 17th century Puritn Christopher Goodman:  "[I]f the Magistrates would wholly despice and betraye the justice and Lawes of God, you which are subject with them shall be condemned except you maytayne and defend the same Lawes agaiynst them."  I don't read this as a "higher law" defense, but, rather, as a genuine debate over who gets to declare what the law is.)  So then what?  Here is where one might debate about the role of juries in such cases.  At the time of the Constitution, juries generally had the right (and duty) to decide on law as well as facts.  Obviously, we have moved away from that.  Should I, as a "protestant constitutionalist," be allowed to appeal directly to the jury to acquit me because I have been unfaithful to the "true" Constitution, which is different from the Constitution being enunciated by the judge?  I think that the logic of my position *would* allow such appeals to the jury.

I hope this is an adequate answer to Larry's question.  If not, I trust he will continue the discussion.

sandy





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