Religion & Law

Today?s The New York Times online commentary [HERE] has an important and fascinating critique authored by Stanley Fish on David Strauss?s new book The Living Constitution. I think Fish is largely correct in his criticism of Strauss?s de-emphasis of the Constitution?s text, and this is captured in the title of his commentary, ?Why Bother With the Constitution?? But, in fairness to Strauss, I also must read his work in its entirely to see if there is something else in his presentation. But, back to the Constitution.

Yes, why bother with it? Fish properly notes that we?ll likely be hearing a good deal about the Constitution as Solicitor General Kagan?s nomination to be an Associate Justice of the Supreme Court advances in the coming weeks.

Fish is largely concerned with the ceremonial role that he sees Strauss granting to the text of the Constitution; moreover, Fish concludes that the real flesh of our basic law, as understood by Strauss and presented in the book?s argument, is not the text of the Framers but ?precedents.? Fish?s concern of Strauss?s position concludes that what is at stake is not careful interpretation of the norms of our basic law, i.e., the Constitution, but appropriation not only of precedents but also inferences. In short, Fish raises a crucial question and answers it: ?Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because he wants to liberate us from it as a constraint.? Fish later notes that Strauss concedes that the Constitution ?is valuable because it provides common ground among the American people,? but, is that all? Fish further states that this common ground is not established on the foundation of the Constitution?s text but on what someone may wish it to mean had this person actually done the drafting of the Constitution.

I sympathize with many of the concerns raised by Fish. The words of laws?be they in the Constitution or statutes or regulations?mean something. Moreover, they should have far more durability than the fancy of the passing moment. Otherwise, catchy phrases like ?penumbras? or ?the mystery of life? become the Constitution and the Constitution itself becomes misplaced. Good legal interpretation must begin with the text that is authoritative. Good interpretation of the Constitution therefore must begin with the words its drafters gave us. Yes, their thoughts, their words, the objectives they broadly identified by choosing the language finally used, mean something not only at the beginning of the interpretative enterprise but also at its end. The necessary continuity with the law?s normative requirements identifying rights and justifying claims, recognizing obligations and naming duties must be coherent with the official text and not something else. Thus, good interpretation also must end with the words the same drafters gave us. If some find this method too constricting to the meaning of law, they should take stock of the legitimate processes that exist to modify it through the amendment process.

Otherwise, to borrow from John Marshall, it is not a Constitution which we are expounding but something else. Like Stanley Fish, I?ll cast my vote for the Constitution that has endured because it is the one I can read, not the one I cannot.

RJA sj