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Originalism, The Court, and Beyond

I know that many people have already seen this (it's a bit old), but I thought I'd comment on this op-ed by Professor Steven Calabresi. Calabresi is a co-founder of that shadowy cabal, the Federalist Society. The essay discusses originalism, a theory of Constitutional interpretation, as well as other aspects of the Supreme Court. As I am a card carrying member of the Federalist Society (seriously, ask me to see my card sometime, I'd be glad to show you), expect a lot of agreement from me in my analysis of the piece.

Calabresi, concerned about the moans and groans in the media about the "dramatic rightward shift" of the Roberts Court, felt that the real work of the Court should be looked at in much more detail. The media loves to focus on the results or a pithy quote from a dissenter or something similarly superficial. The real question is this: How exactly should the Court decide cases? That is the real question. The actual result of the case is usually not as important as how the Court actually got to that result.

The professor knows that originalism is not the prevailing method of interpretation in legal circles. In fact, it's often viewed with scorn. But Calabresi makes a spirited defense of the theory...

For starters, the long-accepted rule for interpreting legal texts is to construe them to have the original public meaning that they had when they were enacted into law. This is the way we interpret statutes, contracts, wills and even old Supreme Court opinions.

No leftist ever says of Roe v. Wade: Let's let President Bush's lower court judges construe that opinion in light of the "evolving standards of decency that mark the progress of a maturing society." Leftists and indeed all non-originalists would be utterly outraged if this were to happen.

Funny how the "standards of decency" are only allowed to "evolve" in one direction, isn't it?

Calabresi also discusses precedent and stare decisis, a topic of much conversation during the Roberts and Alito confirmation hearings as well as at the close of the last term...

Accordingly, the Supreme Court must have the duty and power to overrule its own unconstitutional precedents, just as it has the duty and power to disregard unconstitutional statutes and treaties.
...
This authority is also a practical necessity. Because the Court is composed of human beings, it is inevitable that it will make mistakes. This includes big mistakes about the meaning of the Constitution that, left uncorrected, work a continuing, significant distortion on how our government functions.

This whole discussion has always puzzled me. Some people seem to have a blind loyalty to Court precedent (and many of those people sit on the Senate Judiciary Committee). Oddly enough, their loyalty only applies to precedent that they like. Roe v Wade? Iron clad! Bowers v Hardwick? Overturn it now! I guess I shouldn't be puzzled. It's just hypocrisy, nothing new to politics. I just can't believe that these windbags don't get called on it more often. Anyway, Calabresi is right. The Court is a body of fallible human beings. They make mistakes. Those mistakes should be correctable without the Senator from Massachusetts from having a coronary. Of course, it's not that cut and dry in the real world. This is really a much more complex isssue to be saved for another post.

Next, the separation of powers argument for originalism...

Non-originalist judicial review severely distorts the allocation of powers that is central to the Constitution. That document limits and defines powers by assigning them carefully and precisely to different federal and state institutions.

Originalists believe it is critical that these constitutional allocations of power be respected. We think the Constitution is enforced by the Madisonian system of checks and balances, of separation of powers, and of federalism. We do not think that the Supreme Court is some kind of Supreme Council of Ayatollahs that can do anything it wants do on a 5-4 vote.

Unfortunately, some people do see the Court this way. The judicial system has become the last refuge for hacked off individuals with weird agendas. These are people who can't get their preferred policy enacted through normal democratic means. They lawyer up, head to court, and hope to find a judge that will buy whatever bull plop they're selling. Usually, the error is corrected by an intermediate appellate court, but occasionally it isn't. The Court itself doesn't have a stellar track record in this area. Some incarnations of the Court (Warren Court, I'm looking in your direction) enacted their preferred policies under the color of Constitutional law.

Calabresi hits us with a money quote near the end...

No sane framer of a constitution would ever have written a document that required bicameralism and the president's signature to pass ordinary laws, while leaving the most sensitive issues of morality and religion up to an unelected, unaccountable, life tenured, elite group of judges to be decided on a 5-4 vote.

Amen to that.

In closing, I want to return to a comment that the good professor made at the beginning of the piece. He said this...

...on Jan. 20, 2009, six of the nine current justices will be over the age of 70, an age at which many people either retire or begin to wind down their affairs. There is thus a very real possibility that the next president could appoint as many as four justices in his or her first term alone. We may be getting ready for the biggest turnover in the membership of the Supreme Court since Richard Nixon's election in 1968 brought the Warren Court to an end.

Emphasis added. The 2008 presidential election is winner take all, as far as the Court goes. If a Republican wins the White House (and manages to make conservative appointments to the Court), the balance will shift solidly to the right for many years to come. If a Democrat wins, the current balance will likely be maintained, and some additional ground may be gained back.

If I was a gambling man (and I occasionally am, just not lately), I would lay down a decent chunk of change on me being very sad come November 2008. I'm open to being pleasantly surprised, though.

Full post as published by Eminent Domain on October 15, 2007 (boomark / email).