The Conlawprofs Listserv out of UCLA provides a forum for constitutional law professors to ask questions, exchange comments and proffer observations. Some of the latter can be fairly abstruse.
My own attitude is that if you don't express constitutional law ideas in plain English, there's a problem. Others take a different view, as illustrated below.
The way, indicidentally, to tell that someone is a Conlawprof is if he uses the word "normative" correctly in a sentence without acting self-conscious about it. It's another way of saying "should" as in "we should do this, but not that." I tend to go with "should," myself, but I suppose that "normative" has its uses, sparingly, like once in a year is plenty.
Here's a recent exchange:
THE CONSTITUTION BEHIND THE CONSTITUTION
Part One, by RS:
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.
***
The earlier part, by Prof. Lipkin:
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
DelawarePart Three
In which Prof. Scarberry takes note of a little problem with my approach, stating:
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
* * *
Part Four, by RS:
A Russian-born student and I were chatting over coffee and I was interested in
his take on our constitution. It seemed a bit crazy to him for government, our
national government, that is, to have to justify everything it did in terms of
some delegationof power before it could legally do something it wanted or needed
to do. It's because of that enumerated powers theory, he pointed out, and I agreed
that's where the cause lay.
But government usually gets to do what it needs to do anyway, he said, so it seemed
a bit silly to have to go through this extra step of justifying everything. Russia
never had to do it that way, which I suppose is the point, nor do other European
countries.
It does seem a bit odd, I suppose, when you think about it, but that's us,
the Oddballs of the world, and if it makes us happy to jump through all these hoops,
what's the harm. A little delay, the occasional backfire, and it all comes out the
same in the end.
Maybe.
In international affairs, notably, the national government doesn't have nearly the
number of constitutional snares hampering operations with other nations as it does
domestically, with us, its citizens. Foreign affairs powers are spread among the
Executive and the Congress, with the Court keeping hands-off, as much as possible,
but not entirely. See Reid v. Covert.