Original Intent & the Constitution

The nomination of Judge Sonia Sotomayor to sit on the Supreme Court has generated a vigorous sidebar discussion among conservatives about the proper way of reading the Constitution. Ramesh Ponnuru, a senior editor at the conservative flagship publication, the National Review, has this:

Many conservatives oppose Judge Sotomayor's nomination because she does not appear to support originalism, the notion that legal texts, including the Constitution, should be interpreted according to the meaning that the informed public assumed them to have when they became law. We argue as well that judges should try to overcome the biases of their backgrounds in the name of self-restraint. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.

This strikes me as correct. The Constitution is a contract. It has held intact for more than two hundred years. If it doesn't mean what it meant originally, or as amended according to proper Constitutional form, then it doesn't mean anything.

But how do we determine its original meaning? One way is to look at the documentary record. Antonin Scalia presents a magnificent example of this in the D.C. v. Heller case, and found a constitutional right to possess firearms. I think Scalia's argument was air tight, but that was because in this case the documentary evidence was unambiguous. But what does one do when the documentary evidence is ambiguous, which is usually the case?

A second way to determine the meaning of the Constitution is to look to Constitutional forms. The only unambiguous statement of the Founding Father's original intent is the Constitution itself, and by this I mean not the parchment document, but the regime. Voters, states, the Executive, Legislative, and Judicial Branches, constitute the real Constitution. Whatever that regime does, so long as the basic forms are intact, is constitutional. That, I believe, is what the Constitution is and has always been.

I'd love to tell you that Roe v. Wade was "unconstitutional." It was certainly a very bad decision. It was ungrounded in the text of the Constitution. It created a very controversial right that depends on the whim of five judges to maintain, and thus has politicized the nomination process to an unprecedented degree. It is also, I would add, a moral abomination rivaling that of Dred Scott. But it wasn't unconstitutional. The Court put its own political preferences into basic law by doing nothing more than using the powers that the Constitution gave the Court.

Both liberals and conservatives want to declare that transcendental principles decide each case in their respective favor. For better or worse, the only transcendental principles in the American regime that have any force are those that fix the powers of each office. Of course, the arrangement of powers was designed to serve more important ends: the protection of unalienable rights. But what is constitutionally legitimate, as opposed to what is just simply, is what the constitutional regime does. Maybe we will have to make do with that, as we have hitherto done.

Comments

[P. Chirry]

Except the constitution didn't give the court that power. The court gave itself that power in Marbury v. Madison.

[KB]

Yes it did. Using the powers that the Constitution gives it. Voila. Also, it is pretty clear that Hamilton, at least, anticipated Judicial Review.

[P. Chirry]

Where in the constitution is the court granted the power to give itself the power of judicial review?

The only thing that could be remotely interpreted as meaning that is "the judicial Power of the United States, shall be vested in one supreme Court"

Judicial means "having to do with a court of Justice" and no court in the world _ever_ before Marbury v. Madison had the power to veto laws.

Saying that Roe v. Wade is constitutional because the Supreme court was granted the "judicial Power of the United States" is like saying that because the executive branch is granted the "executive Power of the United States" it was constitutional when Andrew Jackson ignored the Supreme Court and sent the Cherokee packing on the Trail of Tears.

[lexrex]

judicial review was nothing new, when marbury was handed down. it was presupposed by courts years prior. look at what the virginia sup. crt. said in kamper v. hawkins.

the judicial branch is no better or more authoritative than the other branches, when interpreting the constitution. however, the courts are also no worse. st. george tucker said that a constitution is “a rule to all the departments of the government, to the judiciary as well as to the legislature.”

that is to say that a court is bound to review cases that come before them and rule as to their constitutionality. such judicial review doesn't necessarily elevate a judge above a president or legislator. it preserves the constitution as supreme.

that said, when kb says that sup. crt. "put its own political preferences into basic law" in roe v. wade, he is wrong to say that the court was merely "using the powers that the Constitution gave the Court."

the constitution gives no such power to the judiciary to implement political preferences, which is wholly different than judicial review.

[lexrex]

kb and p. chirry, i think you're both mistaking the "judicial review" theory as explained in marbury, with the "judicial supremacy" theory that many law schools teach today.

justice marshall never said or implied anything close to judicial supremacy in marbury. he only reiterated what jefferson and madison and other republicans were kicking around around for several years, that the judiciary was as duty-bound to uphold the constitution as the other two branches.

many federalists, however, were arguing for judicial supremacy, that the courts were the most competent branch to decide constitutional questions. but marbury refuted that.

[KB]

P.Chirry: Where in the Constitution does it say that the Court has only the powers explicitly mentioned in that document? Original Intent and Strict Construction are interpretive doctrines developed independently of the text.

lexrex (great pen name!): I agree that judicial review was not new when the Marshall Court began to exercise it in earnest. I would add that the Marbury case basically writes Hamilton's Federalist 78 into Constitutional Law, and so has solid roots in Originalism.

I don't think I am confusing Judicial Review with Judicial Supremacy. The Court's powers extend (mostly) only to specific cases. The only force that doctrines like judicial review or strict scrutiny have comes from the expectation that the Court will apply them in future cases.

[lexrex]

thanks for the name compliment. samuel rutherford's book helped mold my thinking, way back when.

it sounds as if you and i are on similar planes of thought on this issue, except that i'm not quite understanding how you can then say that roe is constitutional. i inferred that you were saying that something may be constitutional, if the supreme court says it is. am i wrong?

[P. Chirry]

KB, it doesn't say anywhere that the court doesn't have extra powers, but you are still wrong when you say that Roe v. Wade is constitutional because the court did it "using the powers that the Constitution gives it," because the constitution doesn't.

But listen to lexrex, he knows what he's talking about better than I do :-D.