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Wednesday, July 09, 2014

The Living Dead Constitution

Touched on fauxriginalism in the context of NLRB v Canning a couple weeks ago, so I read this Slate item with a bit of joy:

In his opinion, Breyer offers the most forceful defense of what’s often termed “living constitutionalism” to appear in a majority Supreme Court opinion in a generation. Rejecting Antonin Scalia’s 18th-century approach of originalism—in which all that matters is what the framers thought—Breyer in Noel Canning stakes a bold claim for interpreting the Constitution “in light of its text, purposes, and our whole experience.” His is a progressive vision of the Constitution, one articulated previously in his books, like Active Liberty, and in various concurring and dissenting opinions he has authored over the years. But now, in the wake ofCanning it is also the opinion of the court. As a result, it will influence how future courts—state and federal, trial and appellate—will apply the Constitution to answer tomorrow’s controversies.

It may seem like a niggling academic problem. But it has real-world consequences. That’s one of the reasons Justice Antonin Scalia—who agreed with Breyer that these recess appointments were unconstitutional—nevertheless disagreed with the court’s opinion so vigorously. While it may be a sign of how far the Roberts court has shifted that Scalia is forced to file his blustery dissents in the form of angry concurrences, the substance of Scalia’s complaint is unchanged: The court “casts aside the plain, original meaning of the constitutional text.” Breyer responds by saying that Scalia’s originalism asks the wrong question. “The question is not: Did the Founders at the time think about” the exact issue before the court? “The question is: Did the Founders intend to restrict the scope” of the Constitution only to the “forms ... then prevalent,” or did they intend the Constitution “to apply, where appropriate, to somewhat changed circumstances”? Fidelity to the Constitution, he suggests, means using its timeless principles to address new and unforeseen situations. You know, like figuring out how to preserve privacy in an age of smartphones—as the court did this term in Riley v. California, another case decided without relying on originalism.

Zombies and dead hands cannot kill a living constitution.


July 9, 2014 in Constitution, Schmonstitution | Permalink


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Breyer hits the central problem of "originalism:" it substitutes the preferences of the jurist for the mind of the "Founding Fathers" (their names be praised!) in a kind of religious (!) fervor that the only truth is the truth of what "they" thought, and in every case "they" were of like mind, and endowed with the Truth about Law and Governance.

It is, IOW, all nonsense. "Originalism" only means "I can substitute my preference for legal reasoning and say it's what the Founding Fathers wanted" because "FF" is a phrase that means nothing but is so sacrosanct it cannot be challenged. And, being holy, it represents what is unchanging and good in a fallen and ever-changing world.

Crap, as I was saying; and I say that fully aware that I am a Christian and a pastor and so supposed to uphold such thinking.

Nah. I prefer the Gospel message of casting the mighty from their thrones and lifting up the lowly, and regarding nothing holy except God and whatever person I encounter next.

At which point I go off the rails.....

Posted by: Rmj | Jul 9, 2014 2:26:09 PM

I've been thinking a lot since the recent outrages that it's rather hypocritical for "strict originalists" to think that they Supreme Court has any business getting into this judicial review stuff since it wasn't put explicitly in The Constitution by those mystic oracles whose words are supposed to straight jacket human experience more than two and a quarter centuries later. Like all such things, "That's different."

I'm torn between hoping that Scalia live long enough to see a different court destroy his whimsical imposition of fascism on the country and hoping he kicks the bucket so that can happen. But I've been bad a lot lately, too

Posted by: Anthony McCarthy | Jul 9, 2014 2:59:56 PM

casting the mighty from their thrones and lifting up the lowly, and regarding nothing holy except God

Music to my ears.

Posted by: Anthony McCarthy | Jul 9, 2014 3:01:17 PM

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