ACCUMULATING PERIPHERALS


Ah, strict constructionism by mattsteinglass
June 23, 2009, 12:42 pm
Filed under: Law

So apparently John Roberts, in his majority opinion declining to rule the Voting Rights Act unconstitutional (for now!), said the following:

“We are now a very different nation” than more than 40 years ago when the Voting Rights Act was first upheld. “Whether conditions continue to justify” the act, the majority said, is “a difficult constitutional question.”

So it was constitutional in 1965, but now maybe it’s unconstitutional? Maybe the Founders intended for it to be constitutional for Congress to require that legislatures pre-approve changes in district boundaries to ensure they don’t infringe on minority voting rights in 1965, but now their spirits up in Heaven have changed their original-intending minds and decided that they didn’t originally intend that? Maybe there’s been some kind of Back-to-the-Future-style original-intent time-traveling going on?

Or maybe what Roberts is saying is that the Constitution is a living document that needs to be constantly reinterpreted in light of changes in society? Because that’s what it looks to me like he’s saying here.

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5 Comments so far
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I never understood the deification of America’s founding fathers (excuse me: Founding Fathers). Nobody should rule from the grave because nobody is wiser than all posterity. And nobody has a right to determine the existence of all future generations. Democracy is precisely the power of the people over themselves, autonomy instead of heteronomy. And if a people chooses to hand over its autonomy to a bunch of corpses, that is not an act of autonomy.

(Hope this isn’t “chinese”).

Comment by Filip Spagnoli

Filip, no originalist argues that the Founding Fathers should “rule from the grave.” (After all, who would win — Hamilton or Jefferson?)

Rather, their argument is that the rule of law should prevail over the rule of men. If people who are now in the grave made bad laws, it’s up to the people now living to change those laws.

“Democracy is precisely the power of the people over themselves, autonomy instead of heteronomy.”

Yes, and that’s an argument that an originalist would make. He would want “the people” to rule themselves, as represented by Congress, rather than 9 unelected SC justices ruling.

“And if a people chooses to hand over its autonomy to a bunch of corpses, that is not an act of autonomy.”

How does this make sense? Pres. Franklin Roosevelt and everyone in Congress during the 1930s is now a corpse. Does that mean the Social Security Act is no longer valid? How about the Civil Rights Act of 1964? Does it expire in the next 20 years or so because everyone who passed it will be dead?

Comment by James

Strict constructionist: the Constitution is the rulebook. You change the rulebook with amendments.

Supreme court decisions are not part of the rulebook. Their decisions, while important as precedent, are not as sacrosanct as the original document + amendments.

@Filip – given that we-the-people can and have amended the Constitution, we are hardly “ruled from the grave”. It may be harder to make changes than you would like, but that’s not a reason to get rid of it. That’s a reason for you to try harder to persuade the public that your change is just and fair.

Comment by jb

Matt, if you review what Roberts did as a circuit court judge and what he said in his confirmation hearings, he never advocated originalism. (Thomas and to a lesser extent Scalia have, but they’re not the same people.)

Roberts may have done so in his earlier career in the Reagan administration, but that was a long time ago, and he shouldn’t be held to it.

In my opinion Roberts articulated the best philosophy of judging that I’ve ever heard, during his confirmation hearings. It wasn’t originalism or textualism … so what was it? … If I have time, I will try to find the quote. There isn’t a handy label for it, but that’s actually the point. – James

Comment by James

Pres. Franklin Roosevelt and everyone in Congress during the 1930s is now a corpse. Does that mean the Social Security Act is no longer valid? How about the Civil Rights Act of 1964? Does it expire in the next 20 years or so because everyone who passed it will be dead?

This sounds like an awesome premise for an Isaac Asimov-style dystopian novel.

Comment by jamie




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