When they lack any thing better to do, law professors theorize. Usually this is harmless and does no lasting damage, like adolescents reading Ayn Rand or Ian Fleming.
Sometimes though, mischief results. This has been the case with theorizing about the United States Constitution. Its words must be interpreted by judges and applied to actual cases and controversies arising two centuries after its enactment. Two basic schools of thought exist about how to do that: The living constitution versus the dead one.[1]
People who believe in the dead constitution are called originalists. They insist the words of the Constitution should be interpreted according to the meaning they had at the time they were enacted. These days most are politically conservative although that is not strictly necessary. They are not to be misconceived as strict constructionists who are also in the dead camp. Nor, god forbid, are they to be confused with Judge Richard Posner who, whatever else he may be, is neither an originalist nor a potted plant.
Adherents to the living constitution believe, with Justice Brennan, “It is arrogant to pretend that from our vantage we can gauge accurately the intent [meaning] of the Framers on the application of principle to specific, contemporary questions.” The living constitution is a document of general provisions, dependent upon contemporary understanding to give those provisions concrete meaning.
I am oversimplifying today and do not wish for you to think that these two categories of theory — which splinter into hundreds of branches because law professors have a lot of time — are all that exist. For instance, some originalists concern themselves with what the Founding Fathers thought they were saying, others believe the only thing that counts is what the voters who ratified the Constitution thought. Explaining all the theories would take a million words. I would quit writing long before I finished and you would quit reading long before I quit writing.
These theoretical distinctions matter; the judiciary, especially the federal judiciary, purports to decide cases based on them. That they decide cases based on much more than theory seems obvious to many observers, but not to the judges themselves. Supreme Court justices and many appellate judges often assert that they don’t care who wins a particular case before them, only the rule of law they will pronounce and how it will affect future cases. Some, like Justice Holmes, profess not to be interested in “outcomes.” Holmes wrote his friend Harold Laski,“If my fellow citizens want to go to hell, it is my job to help them get there.” The modern day equivalent? Justice Scalia’s comment that federal judges ought to rule with a stamp engraved, “Stupid, but constitutional.” Judges — and law professors — enthralled by theory feign disinterest when they discover legal maidens tied to the tracks and the 5:10 due any minute.
Next time we’ll look at some of those maidens. (Part II) That will be followed by Part III.
_________________________
[1] These two camps derive from an older legal debate started by an earlier generation of law professors without enough to do. That debate was “formalism” v. “realism.”
Tags: Constitution, Law, law professors, law school, Living Constitution, Originalism
