The 5:10 is due and there is a damsel in distress; a villain — let’s call him Snidely Whiplash — has tied an innocent maiden to the railroad tracks. A federal judge happens by. What is he to do? [1]
Well, he can’t just rush to the maiden and untie her. That wouldn’t do at all. First he must decide why and under whose authority she has been placed there. Perhaps Congress ordered it. A judge isn’t free to rescue her unless Congress acted unconstitutionally. Or maybe the damsel was placed in her perilous plight by an evil bureaucrat who put her there pursuant to an agency decision. Shall the judge defer to the agency’s order or shall he rescue her? Unless the Constitution literally says otherwise, an originalist ought to defer, at least if he really believes what he says.
Is that a train whistle I hear in the distance?
We’ll assume Snidely tied her to the tracks pursuant to the “Damsel in Distress” Act of 2008, passed by Congress and duly signed into law by President LeGree. The judge is only free to rescue her if the Act is unconstitutional. Whether she lives or dies depends on the judge’s judicial philosophy. Is it a living constitution or a dead one? See what mischief a little theorizing by law professors can cause?
Yep. That’s a train coming. The maiden would be screaming except she’s been gagged. Surely she has a First Amendment right to scream? Couldn’t the judge at least remove the gag? Well, maybe. But there might be a gag order in place and it might be constitutional.
If the judge is an originalist he believes that the original understanding of the words in the document limits the universe of what is or is not constitutional. He takes it literally. Justice Scalia is an originalist. He was out on a speaking raid last week. According to newspaper accounts he said, “The Constitution is not a living organism. It’s a legal document that says some things and doesn’t say others.” The things that it doesn’t say are not for the courts; they are for the other branches of government.
Well. The Constitution says nothing about damsels tied to railroad tracks. For the originalist judge that is the end of the analysis. He rides off, feeling badly no doubt, but his hands are tied as tightly as hers. “Torture,” he thinks to himself as he rides off, “Torture may be a bad thing but it is not unconstitutional. The Constitution is silent about torture. Not every bad thing — and a maiden tied to the tracks is a bad thing — is unconstitutional.”
Her only hope now is a judge who accepts the theory of a living constitution, one which incorporates evolving ideas beyond the literal meaning of the words at the time the Constitution was written. (Or enacted) But even that kind of a federal judge may not feel free to save her.
Stay tuned for our next exciting episode, “Maiden and Constitution, Dead or Alive?” (Part III)
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[1] Most federal judges are male. No sexism is intended by choosing a male. Besides, when did a woman tie a man to the tracks?
Tags: Constitution, Damsels in Distress, Law, law professors, law school, Living Constitution, Originalism
May 22, 2008 at 3:42 pm |
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