Balkinization: What is Living Constitutionalism?

What is Living Constitutionalism?

This past week I've written a couple of posts that offer an account of living constitutionalism, in which popular mobilization and partisan entrenchment in the judiciary play a major role in shaping constitutional change. This version of living constitutionalism is also a "democratic constitutionalism." (I borrow this term from my colleagues Robert Post and Reva Siegel). It is "living" constitutionalism is because judicial and non judicial interpretations change over time, and it is "democratic" because they change in response to sustained social and political mobilizations that, in turn alter constitutional culture. Last week Dahlia Litwick and Eric Posner offered their comments on this model, and today I offer a further elaboration.

Eric goes right to the heart of the matter when he asks why we should have a system of constitutional interpretation that reflects changes in popular opinion produced by long term popular mobilizations. He asks: If constitutional change responds to political mobilizations, social movement activism, presidential appointments strategies, and shifts in popular opinion, what is the purpose of having constitutional courts in the first place? Why not just get courts out of the business of holding anything unconstitutional and exercise judicial restraint in almost every case? Why not just have a purely majoritarian democracy?

To answer this question, let's take a look at Eric's account of the system I described. First, Eric says, the effect of partisan entrenchment is "conservative (in the temporal sense)" because Justices reflect the views of political coalitions that put them in office when they were appointed. (And that means, on a multimember court, that a variety of different positions, strewn across time, are represented.) Partisan entrenchment in the judiciary may prevent drastic changes in governance, or as Eric puts it, it may promote "smooth policy variance over time." Second, the system I've described "enhances the degree of supermajoritarianism that already exists in our heavily supermajoritarian system" because laws not only have to pass Congress and the President (or the state legislature and the Governor) but also the scrutiny of a court whose members were appointed by people at different times with very different political views. Third, this process "produces a heavy orientation toward maintaining the status quo, and will cause problems in particular when public opinion changes more rapidly than the average justice's term." Put somewhat differently, if the vector sum of political forces changes swiftly on a constitutional issue, the courts will tend hold back and resist the views of the day until the change in constitutional culture proves lasting, because it will take time for new judges to replace older ones. (There is an additional point that Eric did not mention: because the federal courts are appointed by the national political process, they will tend to keep regional majorities close to the views of the national political coalition. That is to say, they are not so much counter-majoritarian as nationalist.)

It's worth noting what Eric has just described (and what he largely objects to): He is describing basic features of constitutionalism generally. Constitutionalism channels and disciplines present day majorities through supermajoritarian rules that they cannot easily change overnight (but can change eventually); this prevents drastic changes in governance and keeps temporary majorities from altering or subverting the constitutional values of more temporally extended supermajorities. In essence, what Eric finds inefficient and unnecessary is constitutionalism that interferes with simple majoritarianism, which is to say, he is opposed to most forms of constitutionalism. Most forms, but not all, because in other work Eric has offered an important exception to his generally skeptical approach: he wants constitutions to restrain democratic decisionmaking that undermines what he calls "political competition," that is laws and practices that interfere with the ability of different political elites and political parties to compete for voters, but not any other rights. Indeed, as long as we effectively protect political competition by other means, we don't really need constitutional rights guarantees at all.

Understood in this way, Eric is not objecting to my account of living constitutionalism because it is politically responsive. He is objecting to it because it is constitutionalism, i.e., because it restrains majorities, because it is not politically responsive enough. His concerns are quite different from Dahlia's. Dahlia wants to make sure that courts are not simply on a frolic and detour, and that they aren't simply mouthpieces for the views of contemporary majorities. That is to say, Dahlia's problem is the opposite of Eric's. She likes constitutionalism (and judicial review) just fine. She's not an originalist by any means, but she likes the rule of law values that originalism promises (even if it can't always deliver).

The version of living constitutionalism I've sketched out in my previous posts sits squarely between the two of them, and that is why they are objecting to it, albeit from opposite directions. Dahlia thinks there's too much democratic politics in my account, and not enough legal restraint. Eric thinks its an inefficient way to do democratic politics.

In general, living constitutionalism of the sort I've described allows social and political mobilizations, working over long periods of time, to shift the interpretation and application of abstract clauses and open ended features of the Constitution. But for the most part it has not altered the "hard wired" features of the Constitutional text. (To the extent the latter has happened, it is really quite exceptional, and, I think, quite wrong). This approach is faithful to the Constitution's original meaning but not necessarily the original expected application of the text. Long term changes in constitutional culture can move us from Plessy v. Ferguson to Brown v. Board of Education, but they won't allow a 34 year old President, or three Houses of Congress, or a simple majority of one House to overturn a Presidential veto. While Article V amendment is necessary for changing these hardwired features of the Constitution, the interpretation, implementation, and application of vague and abstract clauses like "equal protection" can and does change through sustained political mobilization.

To me it is not at all surprising that fights between so called originalist and living constitutionalist approaches almost never concern the hard wired features of the Constitution; they almost always concern the Constitution's abstract guarantees and its silences. Most living constitutionalists assume that the hard wired features of the Constitution are binding even though they were created a long time ago. That is to say, they do not object to the dead hand of the past with respect to those features; their concern is primarily the construction and interpretation of those clauses and features that use the language of general principles and standards. They argue that we are not bound by how the generation of 1791 or 1868 would have applied the text. I think they are right about that. It is our job to interpret the text in our own time.

Under this model of living constitutionalism, successive generations may not reject the Constitution's text and principles, but they may decide how best to honor, implement, and apply them through constitutional constructions and doctrinal implementations. We can reject Plessy v. Ferguson, which is simply one generation's attempt at implementing the Constitution, but not the words of the equal protection clause.

This model produces a system of judicial interpretation that is responsive to democratic politics in the long run but not directly controlled by it in the short run. It preserves constitutional law's relative autonomy from politics in the short run while making it responsive to constitutional politics in the long run.

It also involves a system of judicial review but not a system of judicial supremacy. This distinction is crucial: Courts act as a stabilizing force, and hold officials (and especially executive officials) accountable to law, but they never have the last word. The purpose of judicial review in this model is to represent and protect (in as legally principled a way as possible) the constitutional values of temporally extended majorities, and to prevent quick and drastic changes in those constitutional values unless there has been extended and sustained support for change that is reflected in long term changes in constitutional culture.

Moreover, in this model judges do not have to do anything special or out of the ordinary to participate in the process of living constitutionalism. They don't have to be politicians or moral theorists or divinities like Dworkin's Hercules or philosopher kings. They don't have to be smarter, or wiser, or more moral or more farsighted than anyone else. All they have to do, once they get appointed, is to try to decide the cases according to law, in the best way they can. If they just go about doing their jobs, they will, in spite of themselves, participate in the gradual translation of changing constitutional politics into constitutional law. Meanwhile the job of people like me, and Dahlia, and Eric, and everyone else, is to criticize how they interpret the law and to try to persuade other people, and them, that our interpretations of the Constitution are the best ones and that they should agree with us.

As many of you know, I regard myself as both an originalist and a living constitutionalist. For me originalism requires fidelity to original meaning of the text and the principles that underlie the text, but not fidelity to the original expected application. So the model of living constitutionalism I've described here is largely consistent with my originalist views about constitutional interpretation. Lest I be misunderstood, this does not mean that I agree with every decision the Court has every offered on the merits– for I do not– but that the broad outlines of change in American constitutional history are consistent with this general approach to interpretation, even if I think that many cases were wrongly decided. (Indeed, I regard this as a strength of my approach: it can make sense of what our nation has actually done in practice and what our constitutional traditional actually has produced.). I argue that the implementation and application of vague and abstract clauses is not fixed by what the adopting generation expected, but rather can change over time in response to long term changes in public opinion and sustained mobilizations in democratic politics.

You can now see the answer to the question that Eric and Dahlia posed: Why do we have judicial review at all if it is subject to democratic forces in the long term? Why is a flexible constitutionalism in which the interpretation of abstract clauses (but not the hard wired features) can change slowly over time better than a system of pure majoritarianism without constitutional constraints? The answer is that this variety of living constitutionalism still provides the valuable goods of constitutionalism, but in a way at once more flexible and, I would argue, more admirable than, say, Justice Scalia's model of originalism, which ties original meaning closely to original expected application. It is more admirable because it can make sense of the great achievements of American constitutionalism during the past two centuries that Scalia's model must treat as mistakes, mistakes that we retain only because people have come to rely on them. In my account of living constitutionalism, the reason why the Court protects women from sex discrimination is because of a sustained social movement for women's rights that changed people's views about what equality and equal protection required. In Scalia's model the Court protects women's rights today because activist judges wrongfully imposed their idiosyncratic values into the Constitution and now it's too late to change this dreadful mistake.

My account of living constitutionalism maintains the benefits of constitutionalism generally while allowing adjustments in interpretation over time in the face of sustained democratic mobilization. This makes it superior to Scalia's version of originalism, which he must continually leaven with exceptions for all those "mistakes," It also makes it superior to Eric's preference for pure majoritarianism, which loses out on the benefits of having a constitutional system that guarantees basic rights and limits on government. And it makes the most sense of our system of judicial review, which is not (and never has been) a system of judicial supremacy.

Dahlia reprinted a very interesting e-mail by Richard Shragger of U. Va., who argues that my account of living constitutionalism is too externalist and descriptive. This is an important criticism, which I will discuss in my next post on this topic.

But let me leave you with this point, which I will also develop in my next post. I think that people misunderstand what a theory of living constitutionalism has to do in order to be successful. Most people assume that living constitutionalism is a theory about how to interpret the Constitution in a particular case; it is a sort of mirror image to what they think originalism is. In their view originalism is a theory directed to judges about what judges have to do to be faithful to the Constitution. Therefore living constitutionalism must be the same kind of theory. It must also be directed to judges and it must explain to judges how to decide particular cases. That is why Justice Scalia regularly makes fun of living constitutionalism. As he likes to say, it takes a theory to beat a theory, and living constitutionalism doesn't have one.

I think this is incorrect. Living constitutionalism is primarily a theory about what makes the process that produces changing interpretations of the Constitution legitimate. It is not primarily a theory that offers advice to judges about how to decide particular cases, for the general sort of advice it offers– keep up with the times, and adapt to changing conditions– is probably unnecessary in any event. More about this point in my next post.

Posted 6:50 AM by JB [link]

Comments:

"As many of you know, I regard myself as both an originalist and a living constitutionalist."

This seems to answer a question I have posed to JB in earlier comments. So JB sits atop the constitutional fence with his "mug" (originalist) on one side and his "wamp" (living constitutionalist) on the other. Perhaps a hermeneutical overlay might be appropriate for the this "Mugwamp" version of living-originalism.

# posted by

Shag from Brookline : 7:25 AM

Professor Balkin:

Living constitutionalism is primarily a theory about what makes the process that produces changing interpretations of the Constitution legitimate.

It appears to me that your views of both living constitutionalism and originalism are designed to legitimatize decisions which would otherwise be illegitimate under what most theorists consider originalism.

A theory of "originalism" that abandons the original understanding of the text, expands the current meaning of the text to principles broad enough to encompass nearly anything (such as a 14th Amendment right to kill one's children) and allows interpretations of those principles to change significantly over time cannot fairly be called originalism, which requires a fidelity to a meaning fixed at the time of the ratification of a constitutional provision.

While one can fairly argue over the best means to determine the meaning fixed at the time of the ratification, originalism requires a fixed original meaning if the term originalism is to have any meaning at all.

# posted by

Bart DePalma : 8:38 AM

Unfortunately, Bart, your account of what originalism must mean isn't the original meaning of originalism.

# posted by

JB : 8:50 AM

Your use of the phrase "vector sum of political forces" reminded me of my favorite analogy for the restraining (you called them "supermajoritarian") features of our system. I think of them as slosh baffles that prevent hysterical crowds from tramping individuals.

# posted by

Scott Leadley : 10:04 AM

How about "Original Sin Originalism" along the lines of Genesis to explain away the intent, meaning, understanding, expectations, etc, of the Constitution? That would be simply divine.

# posted by

Shag from Brookline : 10:07 AM

Professor Balkin:

Unfortunately, Bart, your account of what originalism must mean isn't the original meaning of originalism.

Which is?

# posted by

Bart DePalma : 10:16 AM

Unfortunately, Bart, your account of what originalism must mean isn't the original meaning of originalism.

Which is?

Original intent?

# posted by

PMS_CC : 11:50 AM

Unfortunately, Bart, your account of what originalism must mean isn't the original meaning of originalism.

Which is?

Bart, let me give you some idea of where Professor Balkin is coming from. I first encountered him long before this blog, when I read "The Crystalline Structure of Legal Thought" in law school about a decade and a half ago. The man has been seriously researching legal theory and producing peer-reviewed scholarship in major law journals for many, many years.

You might, Bart, at some point admit that he might know a little more about what originalism does and doesn't mean, and what it's theorists do and don't claim, than you do. It isn't like you are publishing in the law reviews. (As someone who, in addition to his legal work, has published a few articles in major law reviews, I can tell you that it requires a rigor that you do not bring to this issue when you talk about originalism in the same sorts of simplistic terminology ("interpreting the Constitution as written instead of inventing new rights", "14th Amendment right to kill one's children") that Rush Limbaugh and Sean Hannity might use.

Bart, Professor Balkin has a lot to tell you about originalism. And if you don't buy his arguments, you can look at the work of conservative scholars who also treat the subject seriously rather than using "living constitutionalism" as an epithet for whatever results they don't like.

I would suggest, however, that you not opine beyond your expertise, that you not go beyond your remit. You are badly overmatched when taking on someone who has been around the scholarly block as many times as Professor Balkin has on this issue.

# posted by

Dilan : 4:19 PM

dilan:

The fact that Professor Balkin and I may disagree is neither here nor there.

I offered the common definition of originalism as the theory that the meaning of provisions of the Constitution is knowable and fixed at the origin of the document.

Professor Balkin claimed that originalism actually has a quite different definition without providing that definition.

I am simply asking for the contrary definition.

No matter how learned my correspondent, I do not accept bare assertions as undisputed fact.

# posted by

Bart DePalma : 5:52 PM

No matter how learned my correspondent, I do not accept bare assertions as undisputed fact.

Why, I have that very same tendency. In fact, when that correspondent miscites actual law, I'm even a bit more sceptical and ask for substantiation (and corrections as appropriate). However, not everyone here bothers to back up their assertions, even when asked repeatedly for such. In fact, a few of the more impolite ones just go on and reassert the same stuff in the next post down the line again without substantiation....

OBTW, there's a link in Prof. Balkin's point under that "originalist" blue clicky...

(documentation and substantiation of my above assertions available on request, of course)

Cheers,

# posted by

Arne Langsetmo : 7:38 PM

I offered the common definition of originalism as the theory that the meaning of provisions of the Constitution is knowable and fixed at the origin of the document.

Bart, is that the common definition as put forth by Robert Bork? The common definition as put forth by Antonin Scalia? The common definition as put forth by Akhil Reed Amar? The common definition as put forth by Hugo Black? By critics like John Hart Ely or Paul Brest? Randy Barnett? Could you summarize what the differences are between those various authors' conceptions of originalism?

If I may paraphrase a great legal thinker, originalism isn't a brooding omnipresence in the sky. It is a category that includes various interpretative metrics. Indeed, some of the interpretative metrics included in originalism definitely do not believe that the meaning of the Constitution is fixed at the origin of the document. Not even Scalia, for instance, believes that. (See his majority opinion on thermal imaging.) Nor does Bork. (See his discussion of libel law in "The Tempting of America" and his wiretapping decision on the DC Circuit.)

What you are offering, Bart, is a radio talk show definition of originalism, used by right-wing hacks to claim that liberal theories of jurisprudence are unprincipled when compared to conservative theories of jurisprudence. You show no signs of having actually engaged the deep jurisprudential debates about text and meaning. Ever heard of H.L.A. Hart? "No vehicles in the park"? Those of us who have studied some of this stuff know that it is a fascinating and complex subject matter. Real interpretation is HARD, and applying netural principles rather than choosing metrics that get the results one wants is VERY HARD.

I do not profess to be an expert in jurisprudential interpretative theory; I simply know enough about it to know that the things you are saying are the words of a person who knows the Republican talking points on the issue but has not a clue about the actual academic scholarship on originalism, let alone the serious problems in interpreting legal texts that originalism does not always help to solve.

Trust me, Bart, you are way out of your league here. I know it is fashionable among conservatives to think of academics as mindless left-wing ideologues, but in fact to be a top flight published legal academic requires a sharp and precise mind, and the people who debate originalism in the academy have forgotten more about these issues than you and I combined are ever going to know.

You really should quit while you are behind, Bart. Or better yet, stop making a fool of yourself, subject your ideas to more rigorous scrutiny and research, test your hypotheses, and see if you can get a jurisprudential paper into a major law school's law review. You will find that you need to go a little deeper than facile explanations about Scalia's alleged principles and theories of originalism as mandating a Constitution of unchanged meaning.

# posted by

Dilan : 10:38 PM

Dilan:

If I may paraphrase a great legal thinker, originalism isn't a brooding omnipresence in the sky. It is a category that includes various interpretative metrics. Indeed, some of the interpretative metrics included in originalism definitely do not believe that the meaning of the Constitution is fixed at the origin of the document. Not even Scalia, for instance, believes that. (See his majority opinion on thermal imaging.) Nor does Bork. (See his discussion of libel law in "The Tempting of America" and his wiretapping decision on the DC Circuit.)

The Harvard Journal of Law and Public Policy (the Federalist Society legal mag) published one issue on "originalism" by various people; I recommended that "Bart" read it a long time ago. As the various authors in that issue pointed out, there's "original meaning", "original intent", "intent of the original founders/authors/ratifiers/judges/experts if they were presented with the current controversy", "understanding of the 'founders'", "understanding of the ratifiers", "understanding of the people", etc.. Then there's levels of "understanding" and "interpretation"; do we want to honour the specifics at the expense of the whole, or are the principles meant (or intended) to inform the specifics?

So many combinations to pick from....

It is a disservice to legal scholarship to pretend that the answers are straight-forward; matter of fact, those that make their profession at law should be thankful; were it straight-forward, and were the laws "obvious", there would be no need for lawyers, judges, and law profs, and a JavaBean macro would do all our adjudication.

Cheers,

# posted by

Arne Langsetmo : 11:16 PM

I offered the common definition of originalism as the theory that the meaning of provisions of the Constitution is knowable and fixed at the origin of the document.

On a perhaps related (or unrelated, depending on how you look at the 'science' of jurisprudence) topic, one of the more compelling and curious proofs of the 20th century in mathematics was Kurt Gödel's Incompleteness Theorem: It states (roughly) that for any sufficiently powerful formal system of logic, there are statements that can be made that are true within that system but which cannot be proven to be true within that system. Translated roughly from "Bart"'s language, assuming that a legal system is akin to some formal logic system, there may be things that are "fixed" (that is, that are true), but which just aren't knowable (they either can't be found, or they can't be shown to be true) without recourse to external entities. So much for "Bart"'s 'idealism'....

But law is not math ... alas.

Cheers,

# posted by

Arne Langsetmo : 11:33 PM

dilan said...

BD: I offered the common definition of originalism as the theory that the meaning of provisions of the Constitution is knowable and fixed at the origin of the document.

Bart, is that the common definition as put forth by Robert Bork? The common definition as put forth by Antonin Scalia? The common definition as put forth by Akhil Reed Amar? The common definition as put forth by Hugo Black? By critics like John Hart Ely or Paul Brest? Randy Barnett? Could you summarize what the differences are between those various authors' conceptions of originalism?

Yes, I provided the basic principle which unites those who practice originalism. Practitioners employ differing means to get to that end - textualism, original understanding and original intent to name three. However, the sought after end of a knowable meaning fixed at the time of the origin of the Constitution is generally the same among Originalists.

This is not even a close question. Consult any legal or general dictionary or encyclopedia you choose and you will find a variation of the general end of originalism which I posted.

What you are offering, Bart, is a radio talk show definition of originalism, used by right-wing hacks to claim that liberal theories of jurisprudence are unprincipled when compared to conservative theories of jurisprudence.

Unless one assumes that the Constitution is a conservative document and fidelity to the Constitution is conservatism, I do not see how one can contend that originalism is either conservative or liberal.

Real interpretation is HARD, and applying netural principles rather than choosing metrics that get the results one wants is VERY HARD.

No one said that Originalism was easy. Living constitutionalism is far easier because it is not based on neutral principles. Indeed, I suspect that the ease of living constitutionalism just as much as ideology is why judges use it.

# posted by

Bart DePalma : 9:42 AM

one of the more compelling and curious proofs of the 20th century in mathematics was Kurt Gödel's Incompleteness Theorem: It states (roughly) that for any sufficiently powerful formal system of logic, there are statements that can be made that are true within that system but which cannot be proven to be true within that system.

Actually, you can prove such statements true, but only at the cost of contradictions in the formal system. The system can be complete -- that is, all true statements can be proved -- or it can be consistent -- no logical contradictions -- but it can't be both.

Of course, calling conservative theories of originalism "formal systems" is far too complimentary. They're muddled thinking, useful for talk radio but not much else.

# posted by

Mark Field : 11:57 AM

Consult any legal or general dictionary or encyclopedia you choose and you will find a variation of the general end of originalism which I posted.

Why would you assume that a general dictionary or encyclopedia would contain an authoritative definition of a contested jurisprudential theory?

I can tell you that much of what we call originalism-- including, notably, what Scalia and Bork advocate-- does not fit into the definition that you gave earlier in this thread. Both Scalia and Bork believe that the meaning of texts can change over time. You should consult the sources I cited for the relevant discussions.

Again, just to come back to the broader point, you are arguing judicial philosophy on the most simplistic levels, and purporting to challenge a law professor who is an expert and who can describe even subtle differences in originalist approaches. You can't come to this argument with Rush Limbaugh talking points about one side following the law as written and the other side not.

Oh, and one more thing, living constitutionalism can be very hard to do too. You might want to read Breyer's book Active Liberty or Laurence Tribe's constitutional law treatise to get some idea of this.

# posted by

Dilan : 2:28 PM

@ Mark Field:

[Arne]: one of the more compelling and curious proofs of the 20th century in mathematics was Kurt Gödel's Incompleteness Theorem: It states (roughly) that for any sufficiently powerful formal system of logic, there are statements that can be made that are true within that system but which cannot be proven to be true within that system.

Actually, you can prove such statements true, but only at the cost of contradictions in the formal system. The system can be complete -- that is, all true statements can be proved -- or it can be consistent -- no logical contradictions -- but it can't be both.

Technically, what you say is true: There is a choice between a system that has unprovable but true statements and an inconsistent system. But in practise, this is not a real choice, as any inconsistent system is essentially useless; once you have any inconsistent statements (which are both true) within the system, it's then pretty trivial to prove any statement you desire as true (although perhaps that feature might come in handy in a formal legal system....)

Of course, calling conservative theories of originalism "formal systems" is far too complimentary. They're muddled thinking, useful for talk radio but not much else.

But "Bart" is pretending that they are so (as have others as well, for their own rhetorical purposes). It's a winning argument to say: "There is a true answer that can be divined ... and I, of course, have divined it, so I can't be wrong ... or even gainsaid. End of argument."

Cheers,

# posted by

Arne Langsetmo : 4:46 PM

Technically, what you say is true: There is a choice between a system that has unprovable but true statements and an inconsistent system. But in practise, this is not a real choice, as any inconsistent system is essentially useless; once you have any inconsistent statements (which are both true) within the system, it's then pretty trivial to prove any statement you desire as true (although perhaps that feature might come in handy in a formal legal system....)

And my overly elliptical point was that this pretty much describes conservative forms of originalism.

# posted by

Mark Field : 9:50 PM

Mark Field:

[Arne]: ... once you have any inconsistent statements (which are both true) within the system ...

And my overly elliptical point was that this pretty much describes conservative forms of originalism.

I don't think it was overly elliptical; that approach seems to describe current foreign policy, at the very least: "Violence is up, we're winning; violence is down, we're winning...."

Cheers,

# posted by

Arne Langsetmo : 8:54 AM

The late Justice William J. Brennan Jnr characterised "Originalism" thus:

“In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage point we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions.
All too often, sources of potential enlightenment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. Indeed, it is far from clear whose intention is relevant—that of the drafters, the congressional disputants, or the ratifiers in the states?—or even whether the idea of original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states. And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive."

Other senior common law judges have been even less flattering to the proponents of "Originalism". In his Sir Anthony Mason Honorary Lecture, presented at the Law School, The University of Melbourne, 9th September 1999, entitled "Constitutional Interpretation and Original Intent: A Form of Ancestor Worship", (later published in the Melbourne University Law Review [2000] MULR 1, The Hon Mr Justice Michael Kirby recounted that at a conference in Auckland (New Zealand) on constitutional interpretation, there had been a debate between Scalia J and Binnie J of the Supreme Court of Canada. "It was in the context of defending the Canadian approach to that task", said Mr Justice Kirby "that Binnie J let slip the opinion (which he suggested was held by some Canadian judges) that the approach of their counterparts in the United States could only be explained by appreciating that Americans were engaged in a ritual of ancestor worship".

"Originalism" is a heretical method of interpretation contrary to the collon law tradition latched upon by the American extreme right so as to provide cover for the evisceration of the constitutionally guaranteed rights which US citizens ought to enjoy".

# posted by

Mourad : 1:26 PM