July 10, 2005

Judging on Principle

One of the more interesting law review articles I've read in awhile—okay, one of the only law review articles I've read in awhile—is Barry Friedman's "The Cycles of Constitutional Theory." The basic point, somewhat obvious, is that both progressives and conservatives modify their theories about how judges should interpret the constitution, not to mention the status of judicial review, based on the actual make-up of the Court.

Now I don't think this is because everyone's a dishonest hack, but rather, because political events can get people thinking in a certain direction. My dislike of the Senate, for instance, is quite principled, but it mainly came about because I saw that the chamber puts Democrats at a disadvantage, especially right now. If the party situations were reversed, I would probably still be amenable to the idea that the Senate is flawed, but more likely I just wouldn't ever think of it as a major problem. Still, something to keep in mind.

That said, I think there's something to Richard Posner's line: "Constitutional theory has no power to command agreement from people not already predisposed to accept the theorist's policy prescriptions." That not only seems right, it's also the way it probably should be. I don't see any principled reason why I should accept "originalism" or "strict constructionism" if they're guaranteed to produce the sort of things I think are quite bad. This idea can be taken to anarchic extremes, of course, but it doesn't have to. Cass Sunstein's "judicial minimalism" is very different from originalism, but it's not utter lawlessness either.

Now certainly stability is important for law, and that's one argument for originalism, but the law will also generally be stable even if a large body of precedent nudges constitutional doctrine away from the "original meaning." Likewise, I don't see why our understanding of the framer's "original intentions" would necessarily remain static over time—historical scholarship changes very frequently. New documents pop up, linguists reinterpret what was meant by X word, interpretations change. That's how history has always worked, and the upheavals can be fairly radical. And then there are liberal originalists like former Justice Hugo Black and Yale's Akhil Reed Amar, and while one might argue that they're practicing "bad" history—that was the charge leveled against many of the Warren Court's "originalist" decisions—wrangling over historical interpretations often gets us, once again, into murky and less than stable territory.
-- Brad Plumer 6:29 PM || ||