From: simon@saguenay.iro.umontreal.ca (Daniel Simon)
Newsgroups: misc.legal,alt.censorship,alt.society.civil-liberty,alt.politics.usa.constitution
Subject: Re: Judicial Interpretation vs. Legislation
Date: 26 Jan 93 05:29:40 GMT
Distribution: usa
Organization: Universite de Montreal, Canada

In article <1993Jan23.103931.25514@midway.uchicago.edu> thf2@midway.uchicago.edu writes:
>In article <1993Jan23.050844.17179@IRO.UMontreal.CA> simon@saguenay.iro.umontreal.ca (Daniel Simon) writes:
>>I would be delighted to be proven wrong, of course; if Mr. Frank
>>or anyone else can cite expressions of mainstream legal opinon
>>explicitly opposing one or another seriously suggested approach to
>>constitutional interpretation as being overly "liberal" (that is, as
>>overstepping the line between "interpretation" and "legisation"), then
>>I would be at least somewhat comforted.
>
>Leaving aside Justice Scalia's recent attempts to formulate a jurisprudence
>of interpretation:
>
>Ronald Dworkin's book, "Law's Empire."  (also, parts of "A Matter of
>Principle.")
>Judge Richard Posner's books, "The Problems of Jurisprudence" and "The Federal
>Courts."

[rest of commendably impressive-looking bibliography deleted]

Well, it once again appears that my question was insufficiently precisely-
worded.  I should not have asked if there are expressions of "mainstream" 
legal opinion rejecting one or another approach to constitutional 
interpretation (I have already read a number of those).  Rather, I am 
interested in approaches which are rejected as a matter of *consensus* 
in mainstream legal circles.  That is, I am wondering if the judicial 
philosophies advocated by jurists fit within a well-established and 
clearly-delineated framework, which is itself more or less universally 
accepted, or whether legal thinkers are free, in the mainstream 
jurisprudential setting, to argue for the methods that happen to suit 
them, appreciating that opinions will differ on the subject.  If the 
latter description is closer to the truth, then it is very reasonable to 
assume that the process of constitutional interpretation has "evolved", 
and continues to do so, and as the set of new and imaginative proposed 
methods thus increases, so will the range of "mainstream" interpretation
options open to the Supreme Court increase.  Hence my concerns that 
constitutional law may simply be edging towards unfettered judicial 
prerogative are perhaps not so misplaced after all.

For example, Mr. Frank has claimed that no judge will ever interpret the
U.S. Constitution's requirement that the president be 35 years of age
to mean that the president should be reasonably mature.  Now, it is true, 
to the best of my limited knowledge, that no widely-endorsed approach
to constitutional interpretation would lead to such a ruling *today*. 
But is there any particular reason for confidence that in the future 
(say, when the state of jurisprudence sinks to such a nadir that judges 
will all read Usenet News regularly), the school of "anti-ageist legal 
theory" will not succeed both in articulating a judicial philosophy in 
which such an interpretation is valid, and in convincing at least a
significant part of the legal community as a whole of its merits?

There is, of course, a potential here for infinite regress; even if we 
have a clearly established consensus on a set of rules for interpreting 
the constitution, then the question of interpreting those rules arises, 
and so on.  Still, each such level changes far more slowly than the one 
beneath it, and a well-understood and universally-accepted concept of the 
limits of judicial discretion with regard to the constitution would go a 
long way towards curbing possible abuses of judicial power.  However, it 
seems to my (admittedly untutored) eye that at the level of guidelines 
for constitutional interpretation, matters are very fluid indeed.  
Perhaps, as a gesture of mercy to someone who heartily appreciates but 
lacks the time to exploit his generously-compiled reading list, Mr. Frank 
(or anyone else) would care to offer his assessment of the aggregate 
coherence of the plethora of competing schools of constitutional 
interpretation?


"Que dites vous?  C'est inutile?  Je le sais!		Daniel R. Simon
 Mais on ne se bat pas dans l'espoir du succe`s!"	simon@iro.umontreal.ca
					-Rostand
Newsgroups: misc.legal,talk.politics.misc,alt.president.clinton