An issue that never goes away in our System of Government under the Constitution of 1787, as Amended, is
"Who Decides Important Constitutional Questions, Us or Them?"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:
Earlier today I posted a reaction to an observation by Mark Scarberry.
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
* *
*
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 PM
Subject: 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
sfls
As 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
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***
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