what does the right REALLY think of Roberts?
mnewsom at law.howard.edu
Thu Jul 28 13:29:35 PDT 2005
I have often wondered whether we really know what those who approved or
ratified the Constitution (and that is not the same group of people who
wrote it, or defended it, such as the authors of the Federalist Papers)
though about interpretation of the constitutional text. I don't' think
that we do.
Until we actually learn something, I remain convinced that the arguments
regarding interpretation have nothing to do with the views of those who
approved or ratified the Constitution but in fact have everything to do
with "modern social policy or foreign law." That is, the debate is not
about history at all, but about current concerns.
"Originalism," "textualism," and "strict constructionism," therefore,
have no more legitimacy than any other interpretive mode. They are
usually covers for a conservative, if not reactionary, approach to
modern problems. And it is impossible to argue that the
ratifiers/approvers would have bought into that approach were they to
The right mode of interpretation is whatever the Court says it is (and
of course the Court famously has been all over the lot on this one, see,
e.g., Bowsher and Schor). And I know of nothing that suggests that the
ratifiers/approvers would be terribly upset with this conclusion
(although some of them might take exception to the exaggerated notion of
judicial review that currently reigns supreme, but even on this point,
we don't know for sure).
The crux of the problem is that we don't know what these people thought,
so therefore we resort to proxies, to "great men" who support our
positions. But it violates fundamental democratic norms to substitute
the views of a self-selected elite for the views of a wider swath of
A far more reliable guide to the meaning of the Constitution is to take
a hard -- and honest, and thorough -- look at our national experience
living under it. But this is hard work, (see, e.g., Mark Tushnet's
penetrating criticism of functionalism in separation of powers cases)
and sometimes we find things that we don't like when we try to think
about the Constitution through the prism of experience.
From: Samuel V [mailto:denversam at gmail.com]
Sent: Monday, July 25, 2005 5:15 PM
To: Law & Religion issues for Law Academics
Subject: Re: what does the right REALLY think of Roberts?
Well necessary criteria would be that the decision (1) is based on the
language of the Constitution itself, and the original meaning of those
words, (2) does not rely on some extra-Constitutional basis, such as
modern social policy or foreign law, unless that policy or law is
incorporated by the Constitution, (3) is consistent, in that if it
treats cases differently, it does so in a way rooted in the
I personally think you could have decisions which are principled
according to these criteria coming down either way on the religion
clauses. When I think of decisions based on judicial fiat, I tend to
think more of other decisions.
On 7/25/05, RJLipkin at aol.com <RJLipkin at aol.com> wrote:
> In a message dated 7/25/2005 4:37:41 PM Eastern Standard Time,
> stevesan at umich.edu writes:
> (Since this is a religion list, what exactly does it mean to "enforce
> Constitution as written" when it comes to the religion clauses?)
> A distinct but equally important question is this. Suppose we
> what it means "to enforce the Constitution as written, rather than
> some other world view through judicial fiat" just how do we know when
> judicial decision succeeds in achieving this? What features of the
> or reasoning will be dispositive? Further, even if we were all
> this imperative regarding the religion clauses, is there any
> chance that this will help us achieve consensus over their meaning?
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
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