Thursday, August 25, 2005

Where did the 'Living Constitution' go...

I'm coming to believe that anything Dahlia Lithwick writes is a must read...she's got another good one over at Slate this week. This is a short column wondering about the demise of the living Constitution...where did all the Brennan's go? That's a question I ask myself all the time.

Reasons to Go On Living

As the most recent "Justice Saunday" extravaganza illustrates, the majority of the nation seems now to be of the firm belief that there is only one way to view the U.S. Constitution: in the way the framers first intended. Maybe that's because they are hearing so few principled arguments making any other case.
To hear
Tom DeLay and his cronies tell it, the only alternative to the interpretive theory of "Originalism" or "strict construction" is to have judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want.

As I have argued often recently, the phenomenon of originalism is like a crashing wave, or rising tide of the legal world. It is growing and pervasive. It's gotten to the point that to 'not' be an adherent of the originalist philosophy is seen as . . . quaint. And those of us who actually have the temerity to advocate a living constitution anymore, well . . . we're just out of the mainstream:

Many prominent liberal thinkers have retreated from William Brennan's soaring language about the need for a "living Constitution," because, I think, it embarrasses them. The idea that, as Brennan wrote, "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on the application of principle to specific, contemporary questions," has been rebutted roundly with the notion that it's even more arrogant for nine unelected officials to gauge anything at all. Calls for minimalism or pragmatism or incrementalism are now in vogue for progressives. That has all the taste of penumbras and emanations, but only half the calories.


Well, I for one stand with Brennan. "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on . . . contemporary questions." My opinion has always been that to force our Democracy into the "originalist" box means either (a) to wrench our society back centuries, or (b) scrapping our Constitution and starting over every few years as many countries in Europe and elsewhere tend to do. Neither is acceptable. The beauty . . . one of the many beauties of our Constitution is that it was written broadly - to encompass the passing of time and maturing of society.

I am quite excited about a new book coming out by Justice Stephen Breyer. Entitled "Active Liberty: Interpreting Our Democratic Constitution," it is the rare glimpse of a Supreme Court Justice's judicial philosophy - from the Justice himself - while he is still sitting. Justice Breyer is arguably the Court's most prominent mind - the "thinker" of the Court . . . and his thinking provides a wonderful counter-point to Justice Antonin Scalia's intelligence and intellectualism on the other side. Personally, I think it entirely possible that years from now legal historians may look back on this time on the Court as a "struggle" between the Breyer-philosophy and Scalia-philosophy.

The Wall St. Journal has a preview of the book in this article, "Justice Breyer Takes'Originalists' to TaskIn a New Book."

Justice Breyer . . . gives a detailed insight into his hilosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society.

And one of the keys - which Lithwick hints at above, and Breyer notes in his book - is that a Living Constitution is not synonymous with judicial activism:

"Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further," he writes.
. . .

Justice Breyer argues for "judicial modesty" when reviewing acts of Congress, and has been among the least likely of the court's members to vote to strike down federal laws.

Democracy, due process, and equal protection may be increasingly dismissed in contemporary legal thought, but the Constitution, a living, vibrant Constitution, will win out over time - as it always has.

Read more about Breyer's book (and a comparison to John Hart Ely) here.

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