The "Them" is our Founding Fathers, the Framers, with capital "F"s the way we write Him, with a capital "H" when we refer to God, with capital "G." You know, Franklin, Adams, Madison, Washington, and then Jefferson on one side, Hamilton on the other in the great issue of which way the country goes, ordinary guy vs. wealthy aristocrat, sort of the way it is now, I guess.
We do this, using capital initial letters to distinguish our One-God from the many gods, small "g," of those lesser, poor ignorant cultures like the Romans and the Greeks, the Egyptians and Babylonians, and many others.
This shows that they're not God, but only lesser gods, cosmic jokes thrown onto the comic book trash heap of history.
We haven't quite done that with our own Pantheon of Framers.
Not that we should, of course, relegate them, for they did establish the framework of government which we use today, after modifications, and the great Civil War that cost 600,000 lives on all sides.
But maybe we need to put them, and us, into a slightly better perspective than we're accustomed to doing.
The issue comes up every year when constitutional cases come up for decision before the Supreme Court. The justices form a huddle, just like in sandlot football, to devise the next play in the sand.
Breyer, for one group of justices in the huddle, as he scrtches the play in the dust with his index finger, says,
"For this play, I think we ought to pull the old Statue of Liberty play, sending Ginsburg long, while, you, Kennedy, here, snatch the ball from Stevens's outstretched arm and hit her with the long Hail Mary pass down the left sideline for the TD. They've only got Bush guarding her."
Fullback Scalia, speaking for Thomas and Rehnquist says,
* * *"Not so fast. The Founding Fathers of this here game said nothing about any forward passing. So I don't think it's legitimate. I don't think it's football. And I don't think we should be mixing plays with names like "Statue of Liberty" and "Hail Mary" in the game of football. The Framers were trying to keep us out of such things.
Let's try a running play, instead, the old Three-yards and a Cloud of Dust, over right tackle. We'll gain the first down, and then do it again and again until we're across the goal line for that TD which I'm confident we'll get. Look at the opposition. Liberals. Gore. Kerry. Wimps. What can they do against us?"
So now we've got this problem.
Are we stuck with 3-yards and a cloud of dust, as the Framers may have envisioned, or can we call the later-invented forward pass, which wins games?
It was this old football that the Conlawprofs were kicking around one day when I got to stick my two-cents worth into the huddle in our own little sandlot game over on the Conlawprofs Listserve Field.
Somebody from Legal Affairs, an online 'zine, was looking in from the sidelines and apparently admired something about my objection to the "Three yards and a cloud of dust" viewpoint.
Next thing I knew he invited me to get into their online Debate Club with the big boys in the next league up, the full-time, make a career of this sort of thing, Conlawprofs and appellate judges.
Wonderful.
I can be their tackling dummy.
Here's the exchange. Your task, should you accept the assignment, is to determine which viewpoint you will adopt for yourself, and the country, if given the chance:
[Professor] Mark Scarberry wrote:
*"The problem with Bob's approach is that the "we" who get to decide are
unelected, life-tenured judges. Some of us would prefer that those judges be bound by something stronger than their view of what makes sense. (That's not to minimize the serious problems with defining what that "something stronger" is.)"
***
Sheridan's reply:
Fair enough.
But why should we be limited, before we can effect the least constitutional change, to the Framers' views of what makes sense?
They're not even here to see the current conditions.
How could they possibly know what makes sense for us today?
I'm not sure they'd even presume to do so. They established a framework. They left it up to us to handle the details as they arose.
The alternative? Accept only what the Amendment process allows?
Most of the individual constitutional rights we've come to enjoy since, oh, say, the post-1937 boost, have been effected despite the likely views of the Framers, rather than what anyone thought they'd agree to.
I don't think we'd want to rely, except as the last resort, on the Amendment process alone as the mechanism for growth and development.
What process do we have to mediate between the two extremes of either the Framers or the Amendment process?
Those unelected, lifetime, judges?
I agree, that can be a problem if you don't like the lean of the Court.
But that's what's there and it's all we've got.
Both sides, conservative and liberal, play the same game of:
"Don't be so activist, Stop legislating, Stop listening to your gut, Forget your intuition/judgment, Go through the amendment process, and Obey the Framers,"
when the shoe is on the other foot, but forge right ahead and do all those things when it isn't.
I recall the frustration of reading about the "Old Court" of Lochner Era days when I was in law school, and I've experienced life during and after the Warren Court. The latter, at least, offered the hope of change in the direction of greater individual liberty and equality. The Lochner Era didn't, which is why the near-revolution during the 'Thirties.
What other mechanism for constitutional change, perhaps with more rapid Court-turnover, might one imagine?
Limited terms for justices, of say eight, ten, or twelve years?
Non-renewable?
Renewable?
To insure that no president acquires an unbreakable lease on 35 years worth of Supreme Court seats times the number of justices that s/he, perhaps fortuituously, has the chance to appoint? That would take care of the life-tenure objection.
As long as we have only two choices, the Framers' views or the Amendment process, neither quite satisfactory, and life-tenure justices, we can look forward to this sort of frustration, and conflict, continuing.
We've amended the Constitution to limit the people's choice as to whom they may elect president to two terms (22nd Amend.), why not term-limit the supreme court justices, and the whole federal bench, for that matter, while we're at it? With a nice retirement package to sweeten the blow.
At least if the unelected justices get far out of synch with the people who put them there, in theory, however indirectly, the people won't have to suffer for a whole generation or more.
The 22nd Amendment represents a greater curtailment of popular democracy than an amendment term-limiting the least democratic branch would have.
Since this proposal cuts both ways, as the 22nd Amendment does, I wonder how such a suggestion would be regarded.
Bob Sheridan
sfls
* * *
To which I added the following:
I suggested that term-limiting Supreme Court justices to 8, 10, or 12 years might be a fair middle ground between reliance on the Amendment process and resort to an Originalist position, for those who don't like to see new constitutional law made up by unelected, life-tenured, justices as we go along.
I cited the 22nd Amendment for the notion that stranger things have happened.
Afterwards I wondered whether this one had been proposed before; if so, I hadn't seen it.
As luck would have it, I've just noticed an item in "How Appealing" by Howard Bashman calling attention, thank you, to a U. of Virginia law review article discussing this very thing and proposing an amendment (with an 18 year, non-renewable, cap, and other interesting features).
...
Here's the URL for the interesting, and from my point of view, timely, law review article:
http://www.virginialawreview.org/2004_new_site/archives/2004_06/90valrev1093.pdf
Bob Sheridan
* * *
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The above exchange followed the earlier correspondence below:
Scarberry, Mark wrote:
Bob Sheridan wrote:
*** Originalists don't seem to like the idea that we get to decide for ourselves. I think it's our responsibity to decide for ourselves.
Which means that we keep as much of the original ideas as makes sense, and slowly modify or get rid of what doesn't. ***
My comment:
The problem with Bob's approach is that the "we" who get to decide are
unelected, life-tenured judges. Some of us would prefer that those judges be bound by something stronger than their view of what makes sense. (That's not to minimize the serious problems with defining what that "something stronger" is.)Mark S. Scarberry
Pepperdine-----Original Message-----
From: Bob Sheridan
To: [Prof. Lipkin, et. al.]
Sent: 11/27/2004 12:43 PMSubject: Re: Justice Scalia's Use of Tradition in Lee v. Weisman and Casey
These latest posts call to mind the early one by Prof. Lipkin in the string, below, which I think translates to the idea that behind, or underneath, the written text are attitudes and ideas on which we may legitimately draw in order to provide meaning as we go along.
The next question is: Whose attitudes and ideas? Their's or Our's?
The Framers or Us?
And where did the Framer's get theirs?
From the history they were familiar with, no doubt.
We're familiar with the next 200 plus years worth of experience, tradition, and history.
We have a better sense of what is going to work for us than what resorting unduly on Them is apt to reveal.
So I think it's up to us to use our best judgment, cherry-picking the good stuff and discarding the rest.
The Cherry-Picking School.
It's legitimate.
It may even be preferred.
Originalists don't seem to like the idea that we get to decide for ourselves.
I think it's our responsibity to decide for ourselves. Which means that we keep as much of the original ideas as makes sense, and slowly modify or get rid of what doesn't.There are [at least] two basic views, or attitudes, on interpreting a foundational document expressing agreement, the American and the Soviet.
Americans hope that a treaty, let's say, embodies the final say of the parties, showing that negotiations are over.
The Soviets, by contrast, seem to have regarded the signing of a treaty as the signal for the opening of negotiations.
The Originalists, Textualists, remind me of frustrated, even fulminating, Americans, who thought that the Constitution was supposed to have answered the big questions.
The Evolutionists must be the Soviets, who regard the opening bell to have rung for ongoing negotiations. Each camp has its more-or-less non-negotiable favorite provisions, however.
I can see how this will drive people nuts.
It appears that behind, or underneath, each camp's interpretation of the
text is a more or less coherent image, a view of what the Constitution really consists of, their own Platonic ideal. This must be what each camp draws on when contesting issues.
The Constitution behind the Constitution, as it were.
I don't know which of the two constitutions is the more challenging to discern, the Written or the Ideal. Add to that the notion that each of us must be carrying around a different Platonic ideal, and we have more constitutions than we can count.
I think we need a referee.
rs
sflsAs an afterthought: There is also said to be an Eastern and a Western mode of conducting an agreement. Westerners going to China to profit preferred to write up and present, as soon as possible, a contract covering all contingencies, to govern relations with their new business partners. Of course no contract is detailed enough to govern /all/ contingencies, and so disputes still arose.
The Eastern mode of conducting an agreement was to be very slow to sign any agreement. Rather, the preferred method was to delay and delay concluding any agreement, to drag out discussions, to have many meals and many cups of tea, while the contracting parties became well-familiar with one-another. Only after seeing how these Westerners behaved and treated them during social situations would the Easterners agree to enter a long-term relationship, which they believed depended more on mutual interest and good-will than the written memorial. Or so I've read.
Which way is right?
I suppose the answer depends on where you come from.
***
Prof. Lipkin wrote:
My colleague, Erin Daly, suggests that there might be an "EPC exceptionalism," namely that there exists a "normative philosophy underlying the EPC" (Justice Brennan in Craig v. Boren) which permits defying tradition in creating new norms. This might successfully distinguish Lee v. Weisman from Casey, but it doesn't answer Chi[p] Lupu's point.
Moreover, I would argue that there is a contestable normative philosophy underlying all rights' provisions in the Constitution. And in the final analysis I can't see Justice Scalia choosing to take refuge beyond Justice Brennan's view above. Thus, the selective choice criticism still seems applicable.
Bobby
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware-----------------------------------------------------------------------
"Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others."
***
That's me, Mr. Rightly or Wrongly.
Hell, if you put it out there on the web for the world of scholars to see and contemplate their navels with, after the warning, don't complain if they give you a wider audience, which is probably what you like having for your ideas anyway, otherwise, why bother to have them.
Am I wrong?
End
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Hmmm...reminds me of the one about how do you greet a lawyer with an IQ of 50. "Good morning, Your Honor."
I wondered where that came from.
Harmless Preacher Killen is under indictment by the State of Mississippi for participating in the murder of Chaney, Schwerner, and Goodman forty years ago, for helping blacks register and vote. He may not have been quite so harmless in his younger days when things were different in Mississippi.
Anything to avoid savagery, is my motto...
Posted by: rs | January 23, 2005 at 01:03 PM
I believe that without constants there is no focus and without that we are scattered and savage..Even if you do not believe in "God" then I am sure that you believe in humanity..It is obvious to me (I hold that truth to be self evident)that we do not change,only our machines do..The rules can not constantly change to fit the players..I myself, know Edgar Ray Killen..He is as harmelss as any of these other "preachers" here in Mississippi..The ladies like them and many of them are also musicians (like me)..Edgar Killen is 1/2 Native American..Those KIllens are about 1/4 Appache and 1/4 Choctaw..Mississippi is multi-racial..We get along,no thanks to the News Media..I have never been taught to hate anyone..There is a local joke that tells it like it is.."What do you call a Mississippi Black man with an 8th Grade Education"..Answer "Reverend"..That also holds true for some of us pale faces ..
Posted by: Ron Grayson | January 22, 2005 at 10:14 PM
Well, you've certainly put your finger on the problem, O'Neill, although you haven't exactly solved it.
The claim that the "majority rules" doesn't quite eliminate the problem.
One of the reasons we have certain restrictions in the Constitution is to PREVENT the majority ruling. Majorities sometimes go nuts. The list is long:
Slavery was okay with the majority here for a LONG time;
Jim Crow;
Eugenics;
Internments of Japanese-Americans after Pearl Harbor;
Hitler, Germany
Think of more examples of your own.
One big reason for the Bill of Rights is to protect minority viewpoints and groups of people from the depredations of the majority. This is hugely antii-democratic. The majority most decidedly does not rule when it comes to specific questions. Perhaps, in some theoretical sense the majority has consented, by not repealing the Bill of Rights, to suffering not to have its way on particular issues such as free speech (think flag burning) or liberty (as in abortion and gay rights).
Nope, O'Neill, you don't settle this debate by tossing in a nice label such as "majority rules" or "national security." That's a bit of an old game. Sometimes the majority rules, and sometimes national security wins, but not always. In the Pentagon Papers case the NYT and WaPost were allowed by the SC to expose government lies despite claims that national security would be compromised by doing so.
These questions are a lot harder to answer, and to wrestle with, when they are current and undecided than after we see the decision in a previous case.
Why?
Because we can never see very far into the future. Make that rarely. Some of us seem to be better at it than others. Some cannot do it at all. I'm not suggesting that I'm great at it, but I'm also not blind to the future either.
What about the SC justices? Are they any good at it? Some are, I suppose, because they are forced day in and day out, with the aid of every brief writer (amicus and otherwise), newspaper columnist, editorial writer, letter-to-the-editor writer, historian, political pundit, Hollywood and other movie writer, director, artist, novelist, comic, satirist, musician, intellectual, you-name-it, to observe the clamor and the warnings before deciding. The justices are open to a lot of input, formal and informal. Plus they are in a position of being forced to decide in terms of what is good for the long-term health of the country, not short or parochial. They're on a high perch and, with luck, should be far-seeing.
It's as good as we've been able to devise.
We restrict ourselves to free ourselves from our own passions. Ulysses tying himself to the mast of his ship in sailing past the Island of the Sirens (with wax in his men's ears) to survive the fatal call that arouses his passions. We survive passion's call by restricting our freedom of action. Yet we have this mechanism that allows the bindings to be loosened a bit from time to time when we think we can handle it, not before. See Griswold, Roe, and Lawrence.
Posted by: rs | December 11, 2004 at 12:05 PM
Originalist or Evolutionist?
The alternative of having limitations on the tenure of Justices may backfire. Justices are hand selected by the President and there is a great likelyhood, as in the past, that they would be selected based on their reputation for conservatism or not. Also, the country may find itself stuck with Justices from similar schools of thought if say Republicans coincidentally are always the ones making the selection.
Alternatively, the constitution does allow for amendments, this process is somewhat prohibitive but it ensures that the majority have their say. Since the majority rules. Otherwise, just anyone with a loud enough voice and following could make ad hoc changes to the Foundation of the Nation.
There might not be a question at all of whether the outlook should be Originalist.
Posted by: oneil | December 11, 2004 at 10:15 AM