Newsgroups: bit.listserv.politics
Date:         Thu, 31 Dec 1992 10:48:19 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: Original Intent
Comments: To: Joe <JCOCURUL@DREW.BITNET>

>From:         Andy Freeman <andy@SAIL.STANFORD.EDU>

>>All legal theorists, at least all the ones I know about, believe
>>that the task of the Supreme Court is to protect constitutional
>>rights. [qualifier deleted]

Andy says,

>Back when I was looking for good constitutional law readings, I came
>across (one of) John Ely's discussion of the role of the Supremes.
>(Ely is/was Dean of Stanford Law and supposedly a heavyweight in
>Constitutional Law.)  His description of the mainstream thought on the
>subject was that the Surpremes were supposed to throw out bogus laws
>even if there wasn't obviously a constitutional issue.  (I note that
>"constitutional issue" isn't all that fixed either.  I don't see a
>"right to contract" in it, but the surpremes protected it for some
>time.)

I doubt this.
I am pretty well familiar with Ely's writings.

(In the unlikely event that another POLITICS reader decides to
go and read Ely, it is important to note that what I call
"Originalism" Ely calls "Interpretivism." Neither one is a
really great name. I think "Originalism" is moderately more descriptive.)

(I just took a quick look through Ely's book, and was surprised not
to find a really clear statement about this one way or the other.)

Here's what I think Ely says. There are two major trunks of the
mainstream. One is "Interpretivist" (or "Originalist"). The other
is "Noninterpetivist." Both major trunks believe that the SC's
job is to strike down laws that are unconstitutional. What
distinguishes them is that the Originalists believe that a law
is unconstitutional only if it is inconsistent with the original
intent of [fill in favorite group here: framers, authors,
ratifiers, general public at time of ratification....]. The
others think that Originalist interpretation either doesn't work
at all or isn't a good idea.

There are a few other groups outside the mainstream. Hugo Black was
a very unusual fellow in that he was a "Literalist." He thought
the Constitution should be applied exactly as written, irrespective
of the intent of the framers. For example, he was a fairly extreme
defender of free speech (for a while) because the actual text
("...*NO LAW*...") is more stringent than the best guess at the
thoughts in the minds of the framers. Literalism is sometimes considered
a kind of Originalism. But it is very, very rare. (I think it actually
has a lot going for it, myself.)
There are also radicals at the other end of the spectrum, the Legal
Realists, in their most recent incarnation as Critical Legal Theorists.
They say, in effect, that the written documents, the psychology of
the framers, precedent, and all of history and the "fixed facts,"
none of those provides an iota of legal compulsion on judges.
The credo of the Realists is, "The Law is what the Judge says it is."
(Or, more whimsically, "The Law is what the Judge had for breakfast.")

Realists are not in the mainstream, exactly. At Harvard, maybe they
are. They might be the mainstream eventually. I hope not. I think
they are of more use as outsiders.

Anyway, that turned out to be a combination of my report on Ely
and my own taxonomy.

I really hope more than two people are still reading....

>>Originalists think that the Constitution should be interpreted
>>according to its Original Intent.
>
>Since that was the intent that was passed, it does have one
>interesting distinguishing characteristic.  If we're not going to pay
>attention to what was passed fine, but ....

Well, if you want to get into this issue, I will. I note that for
someone who has read Ely's work, you are oddly willing to ignore
his arguments against Originalism.

For now, I'll offer a very short reply.

It is unclear to me why Andy (or anyone) thinks that "intent"
is something that is passed when a law is passed. What's pretty
clearly true is that a BILL or AMENDMENT or CONSTITUTION is passed.
It is unclear why we should think that legislators or ratifiers
were voting on intentions.
As I've said, everyone (except maybe the Realists) says that judges
should pay attention to what was passed. Only Originalists say that
what was passed was an intention.

>>I have not in any way endorsed Original Intent as a unique
>>strategy for interpreting the Constitution.
>
>I know that Jamie isn't an originalist on all issues, however the
>"Supremes should only decide constitutional questions, and not every
>question has a constitutional answer" is an Originalist position.

It is an Originalist position in that Originalists hold it, but
not an Originalist position in the sense that ONLY Originalists
hold it.
It would be likewise misleading for me to say, "The lack of toleration
for gays is a Nazi position."

>>I think sometimes we do, clearly, have to do some historical
>>investigation to find out what certain words meant around 1800, or
>>whenever. But I don't think that's even the main strategy that should
>>be used.
>
>So where should we get word meaning?  Note that we can change the
>constitution's text any time we want, so it isn't like we have to play
>word games to change it.

I won't answer this question in this posting, since it is already
too long. I will send a separate posting on Original Intent.
In a way, I wish this came up at a different time, since there
are some frequent readers of POLITICS whose input I would value
but who don't seem to be around right now.

Jamie
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