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Monday, August 08, 2005

Good and Bad Arguments for a Constrained Judiciary

I found myself this morning on the train defending a part of Larry Tribe's comment in Scalia's A Matter of Interpretation to a fellow federalist attorney. This was such an interesting experience that I figured it would be fun to relate.

A Matter of Interpretation is Justice Scalia's short essay defending textualism. He discusses statutory interpretation and briefly comments on constitutional interpretation. He includes responses to his essay from Gordon Wood, Larry Tribe, Mary Anne Glendon, and Ronald Dworkin. He then responds to their critiques in turn.

Larry Tribe's comment takes issue with Scalia's version of originalism in constitutional interpretation. Although admitting not to have an all-encompassing theory of his own, he seeks to break with both Scalia and Dworkin in offering a conception of interpretation that treats some provisions of the Constitution as "aspirational" in nature rather than static. After a few of the usual ad hominem attacks and claims of judicial hypocrisy, he finally gets to saying that since the text of the Constitution doesn't explicitly call for an original intent approach, it is equally plausible to view such things as freedom of speech, cruel and unusual punishment, and due process as principles that were not meant to remain tied to the founding period, but to expand as society progresses to attain the fullness of human aspirations. This, of course, is committed to the judiciary to implement.

My federalist friend was willing to concede that these provisions should be viewed this way, but refused to accept that it was then for the judiciary to fulfill these aspirations. Even if the framers intended these rights to expand, it should be the popularly elected legislature that leads the charge, not the countermajoritarian judiciary.

This, however, misunderstands Marbury. Justice Scalia's response in his book is that he disagrees that the amendments were meant to be aspirational.[1] Look to the rhetoric of the Declaration of Independence for aspiration, not to the mechanical structure of government in the Constitution. And, Justice Scalia continued, if the rights were meant to be aspirational, then Marbury is wrong that the judiciary is charged with interpreting the scope of those rights. Marshall would not have been so strong in his language if he had known these rights to be aspirational. Such a reading is problematic now and it would have been problematic then.

We need Marbury because we need cases like Lopez, Morrison, City of Boerne, et al. The judiciary has a vital role to play in the protection of "Our Federalism," and the disdain for the recent activism by the judiciary should not infect our arguments with an absolute distaste for the independence of the judiciary. The goal is cabining the judicial power to that which has been popularly given, not the taking away of it altogether.

So Tribe's argument fails because the amendments were not meant to be aspirational, and that the mechanism for change, absent a provision in the amendment or statute, is further legislation, not judicial creation. But we must accept that if he were right and the amendments were aspirational, Marbury gives it to the judiciary to do the aspiring. To do otherwise is to throw the baby out with the bathwater, as it were.

[1] One point that neither discuss is the difference between the 14th Amendment and all the rest in terms of aspiration. I think Ely's arguments in Democracy and Distrust are formidable that the equal protection clause was not meant to be static. The Court's treatment of the clause evidences this as well as it has gone far beyond equal rights for blacks.


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