Monday, April 19, 2010

Intrepreting the Constitution

Of all the classes I took in law school, there was only one that I truly despised: Constitutional Law.  That's not to say that I loved all of my classes - Civ. Pro., thanks to the professor, was too esoteric, and Tax Law was horrifically boring (go figure) - but for the most part, I didn't despise these classes like I did Con Law.  And I bet if you asked 1000 former lawyers and law students, you'd hear the same level of disgust when it comes to Con Law.

Now, this has to be a surprise for most non-law students because, of all the classes going into law school, Con Law is the one people think about when they think about law school.  And everyone has an opinion on the Constitution - from abortion to gay rights to the role of religion in government, and so on, Constitutional Law is the law we discuss when we talk about the law.

So how could a topic like Con Law be so despised?  Well, unlike any other area of law, Con Law is not shaped by 1000 years of Anglo-American jurisprudence, and reformed by legislative action.  Con Law is, at its very heart, whatever 9 people say it is.  And since those 9 people change over time, the law continually changes.  So, trying to make heads and tails of the law is completely unintelligible.  My Con Law professor turned the whole affair into a philosophy course.  Ugh.

By the way, the conservative critique of liberal justices being "activist" is complete and utter nonsense.  There may have been a time where the liberal wing pushed the boundaries, but the conservatives have been just as willing to overthrow the established law.

Let me also say that originalism - wherein the Supreme Court is supposed to determine the original intent of the Framers when interpreting the Constitution - is also nonsense.  First, the Constitution was written by James Madison, edited by a large group of people, and then passed and ratified by still larger groups of people.  Even if you had a letter describing why there's a comma here, or a word there, it would be signed by only one person, and his opinion could very well be different from everyone else's.  In reality, Scalia's originalism is merely a pretext to do whatever he wants. 

Instead, I'm much more of a textualist.  That is, I believe that, as much as possible, the Constitution means what it says.  Moreover, you have to read the policies inherent in the Constitution.  For instance, the right of privacy - which is really the right to self-sovereignty - isn't an explicit right in the Constitution, but the police can't arrest you without a warrant, can't search or take your stuff without a warrant, and you have the right to say what you want, believe what you want, and go wherever you want.  So, in reading the Bill of Rights, its pretty clear that the sovereignty rights of people was a pretty big thing.  Then there's the 10 Amendment which says, essentially, that if there's anything we forgot to mention in protecting an individual's rights, its in there too.

So, for me, I'd like to see a Supreme Court Justice take the following position - I'm going to take the Constitution on its word, unless doing so will result in an absurd result.  That's it.


  1. The problem here is really who defines absurd? I think it is absurd that you have read in a "right to privacy" that really does not exist. I think it is absurd that a decision like Kelo can be read into what is right.

    This idea that the constitution is a "Living, Breathing Document", frankly is absurd.

    All depends on what view you take.

  2. I agree about the living, breathing concept. Its an idiotic notion. Also, the "right to privacy" is a misnomer - its really a right of self-sovereignty, which can be found throughout the Bill of Rights. One can argue, as I would, that the underlying policy is individual rights, and anything that takes from individual rights has to come as a result of an explicit power granted to the feds.

    The problem is that Justices get to do whatever they want, and its ridiculous to think otherwise. Most of Scalia's decisions in the area of criminal procedure, for instance, are far from what the Framers originally intended.

    But as to what I mean by absurdity, reread Section 1 of the Article 2. "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President." The comma before "at" indicates that "at the time" clause modifies both the natural born citizen requirement and the citizen of the U.S. requirement, and so a President would be required to be born within the original 13 states.

    That's absurd, of course, and no one has ever followed it.