Common sense as a school of thought
At dinner last night, Justice Thomas questioned whether he has a judicial philosophy. Thomas said he just tries to decide constitutional cases by sticking close to the Constitution. Of course that approach is itself is a judicial philosophy. Thomas's point, I'm guessing, is that the approach is so obvious that it shouldn't rise to the level of a philosophy.
In fact, though, Thomas's philosophy is sufficiently controversial to warrant a fancy name -- originalism. One of its leading exponents is Steven Calabresi, a law professor at Northwestern and a co-founder of The Federalist Society. Calabresi presents an explanation and defense of originalism in this piece in the Wall Street Journal. He writes:
[T]he long-accepted rule for interpreting legal texts is to construe them to have the original public meaning that they had when they were enacted into law. This is the way we interpret statutes, contracts, wills and even old Supreme Court opinions.No leftist ever says of Roe v. Wade: Let’s let President Bush’s lower court judges construe that opinion in light of the “evolving standards of decency that mark the progress of a maturing society.” Leftists and indeed all non-originalists would be utterly outraged if this were to happen. In fact, much of the complaining by the left about the Supreme Court’s decision last spring to uphold the federal partial birth abortion statute was that it was not a faithful effort to apply the Court’s abortion precedents as they had previously been understood. Many on the left claimed this was a profound threat to the rule of law.
There is no good reason, however, to think that the rule of law requires us to follow newly-minted Supreme Court precedent but not the Constitution. To the contrary, it is crystal clear that there will be many times when the exact opposite is the case.
The Court’s own power to decide constitutional questions derives only from the Constitution’s status, together with treaties and federal statutes, as “the supreme law of the land.” The Constitution’s character as law makes it binding on the courts of law, including the Supreme Court. This is what empowers those courts to decide what the Constitution means.
Accordingly, the Supreme Court must have the duty and power to overrule its own unconstitutional precedents, just as it has the duty and power to disregard unconstitutional statutes and treaties. This authority is well established and indeed has been recognized since the earliest days of the republic.
Calabresi is the editor of Originalism: A Quarter-Century of Debate, published by the Federalist Society. The book contains a forward by Justice Scalia. Even more enticing for me, it includes the proceedings of panels on originalism that the Federalist Society has presented over the years. In the Federalist Society tradition, each panel includes at least one liberal leading-light -- e.g., Cass Sunstein, Walter Dellinger, Jeffrey Rosen, Akhil Amar.
The debate captured in this book lies at the heart of past judicial confirmation wars (though the Democrats have tried to make them appear to be about other matters -- witness the Thomas confirmation hearings). That's because originalism denies leftists the right to have the Constitution mean anything they want it mean, and thus the ability radically to re-make our society. Originalism: A Quarter-Century of Debate looks like must reading for those who wish to stand in the way of this leftist enterprise.
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