The Constitution: Dead or Alive – Part III

NOTE:  If you are new to this three part series about the living constitution versus originalism it will make more sense to read the three parts in order.  Part One is here and Part Two is here.

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We left our maiden gagged and bound to the railroad tracks and a train coming. The “originalist” judge left her there, determining that the Constitution said nothing which forbids tying maidens to railroad tracks. He wasn’t happy about it. In fact, he was personally greatly distressed, but the Founding Fathers tied his hands by omitting to outlaw the practice — as they failed to omit many pernicious practices.

But it may not be too late! Here comes another federal judge. He can use his superpowers to save her!

Not so fast. The first objection originalists raise to living constitutionalists is that they are unmoored from the text and the law; therefore, float freely around, doing whatever they feel like. This objection, to continue the metaphor, is unanchored. No judge, however liberal or conservative, feels uncabined by the law. Here is Judge Alex Kozinski of the 9th Circuit Court of Appeals; conservative republican appointed by President Reagan on the point, “It’s when you are moved by ideology to ignore the law in order to reach a result you like that you step out of bounds.” Good judges of whatever political persuasion don’t step out of bounds.

Living constitutionalists know that their jobs require fealty to the original meaning and principles underlying the Constitution. They don’t get to make it up as they go along. The text of the Constitution and subsequent interpretations of it place limits on their free will. (whether or not the universe does.)

Nonetheless, this judge is not going to pass the buck to the Founding Fathers.

In the first post of this series I mentioned Judge Richard Posner of the 7th Circuit Court of Appeals; appointed by Reagan, unimpeachably conservative and no judicial activist. After becoming a federal judge he wrote an article entitled, “What am I? A Potted Plant?” In it, he took originalists to task, writing:

In considering whether to shrink what are now understood to be constitutional safeguards to the slight dimensions implied by a literal interpretation of the Constitution, we should be careful to have a realistic, not an idealized, picture of the legislative and executive branches of government. . . .

The framers of a constitution who want to make it a charter of liberties . . . face a difficult choice. They can write specific provisions and thereby doom their work to rapid obsolescence, or they can write general provisions, thereby allowing substantial discretion to the authoritative interpreters, who in our system are the judges.

For our judge, with the train clearly in sight and coming fast, the Constitution’s silence about tying people to railroads does not mean that it is constitutional. But even he has to think this through carefully. He can’t just do whatever he thinks best. The words and underlying principles are only the beginning of his analysis.

Oh my. The train is thundering down on her now and the judge is still thinking. “The Constitution says nothing about maidens tied to railroad tracks. But it does outlaw cruel and unusual punishments. Or, even though the Constitution says nothing about privacy, maybe she has a privacy right not to be smashed by a train and Congress has unconstitutionally interfered with that. Or she may have a liberty interest which extends outside her home. Certainly her liberty is restrained right now.”

These theoretical niceties of the law professors and the judges matter because the scope of the constitutional protection of our fundamental rights matter. If those rights are literally limited by the Constitution’s silence, then the government can do to us a great deal more than it can if those rights are broadly defined. It can tie maidens to railroads. The scope of our fundamental liberties as citizens of the United States depends upon which theory predominates in the Supreme Court.

So, he rescues her. True, he does what he wants; but not because that is what he wants. He does it because, under his view of the law, he has to. That the rescue comports with his personal desires is a coincidence and no more. He has been faithful to the living constitution; just like the originalist judge who wanted to save her, but did not, was faithful to the dead constitution. Theories matter.

Tags: Constitution, Constitutional Interpretation, Law, Supreme Court, Trains