Thursday, June 25, 2009

The Supreme Court as the Husband in a French Farce


Ari Shapiro's NPR story on The Constitution in 2020 has several quotes from Reva Siegel and from me on the emerging liberal vision of the Constitution. Eric Posner, in the meantime, manages us to outflank us so vigorously on the right that he loops around to critical legal studies land, arguing that originalism and living constitutionalism are both bunk, and that it's all just politics:

A Living Tradition

Yale law professor Reva Siegel is one of the progressive legal scholars at the forefront of this debate. She argues that judges can neither ignore the past nor give it unquestioning loyalty.

"The Constitution is neither an agreement that was made by persons long dead, nor is it something that simply reflects the understandings of living Americans," Siegel says. "In fact, it's a living tradition that links the struggles, commitments and beliefs of Americans past, present and future."

Siegel co-edited the new book The Constitution in 2020 with Yale law professor Jack Balkin.

Balkin argues that the Founding Fathers intentionally made some passages of the Constitution very specific — such as the requirement that the president be at least 35 years old — and other passages intentionally vague.

"They spoke in general terms because they expected that people who came along later would have to do their part," Balkin says. "They would have an obligation to continue the project."

Balkin describes that project of ongoing interpretation as true constitutional fidelity.


"I think that's gobbledygook," says Eric Posner, University of Chicago law professor. "It's just kind of a pun on what fidelity means."

Posner says he believes neither in originalism nor in the academic philosophies that liberals are describing.

"They have to come up with a better idea," Posner says. "And instead of coming up with a better idea, I think they're trying to figure out what the PR angle of originalism is and how to duplicate it."

Posner says he believes everyone is trying to disguise the fact that judges are basically political actors, on the left and right.

Even if these progressive ideas take hold, the courts will not shift any time soon. The Supreme Court has five solid conservative votes, and one new nominee won't change that.

Balkin is not worried.

"My view of the Supreme Court is sort of like the husband in the French farce," Balkin says. "He's always the last to know."

Balkin adds, "Essentially, stop bothering about the Supreme Court. Start thinking about what the Constitution means in the general public. The courts will catch up in good time."

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