Marianne Stewart, a third year student at Albany Law School, is a graduate of SUNY Fredonia where she studied Political Science and Theatre Arts. Marianne clerks for the Division of Tax Appeals and has started her own consulting business. She is a co-Director of the tax pro Bono Project and assists Dean Andrews in her research.Following graduation, Marianne is interested in clerking for the U.S. Tax Court and sees herself excelling in entrepreneurial endeavors.
The essay was prepared for Prof. Bonventre's Judicial Process Seminar, Fall 2013.
The discussions that ensued as I
spiraled into these readings danced around a few topics of great interest to
me, most notably the responsibility and function of judicial interpretation of
the cornerstone of America's justice: our Constitution.
In his Originalism: The
Lesser Evil, Justice Scalia discusses a celestial view of the judge's
function, quoting Taft on the judge's function, having a "vision of things
to come"[1] and,
to the best of his abilities, altering the outcome of that vision On the other
hand, in his The Notion of a Living Constitution, Justice Rehnquist
has a more blunt and candid opinion, drawing wisdom from Lincoln's historic
pioneering words proclaimed during his first inaugural address.[2]
Lincoln courageously commented on the citizens’
frustration concerning the "vital questions affecting the whole
people" that appear irrevocably fixed by the decisions of the Supreme
Court. Rehnquist approvingly quotes Lincoln’s
conclusion that "the people have ceased to be their own rulers, having . .
. resigned their government into the hands of that eminent tribunal."[3]
Drawing on the opinions of those
who choose to discuss the Constitution as a living one, Rehnquist openly
surrenders to the idea that no one in his or her right mind would want a “dead
constitution” and, therefore, the label of the "living Constitution"
is one that has become merely a slogan used to elect a candidate to office.[4]
The real analysis in these two
dissertations addresses the correct procedure and intellectual thought process
in which judicial interpretation should occur.
And who better to discuss this topic than those in the judicially
appointed position of interpreting the Constitution? (Note the tone of sarcasm buried deep in the
previous sentence).
Scalia's speech provides both an
argument for and against originalism in the context of how constitutional interpretation
should be carried forward in our evolving country. He does not keep his audience in suspense,
declaring his support for the lesser of two evils: originalism. Trudging through the defects of non-originalism,
Scalia lays out the difficulties associated with distinguishing between the political values an
individual personally thinks most important and those political values that “‘are
fundamental to our society.’"[5]
Rehnquist’s “brief writer” supports
an evolving, "living Constitution” to ensure that laws will reflect
"current values”—Scalia’s pejoratively repeated phrase.[6]
Scalia contends that, with “the adoption
of such a criterion[,] judicial personalization of the law" or “judges
mistak[ing] their own predilections for law . . . is enormously facilitated.”[7] Opting for a more moderate result, Scalia
states that it is the judge's role to enforce the original principles of the Constitution
instead of constant reinterpretation and re-creation as society evolves.
Scalia dedicated much of his speech
to the reference of executive power in the Constitution and whether it should
be interpreted with reference to the traditional powers of the English King.[8] Scalia rightly concludes that there are some
similarities, including the ability to command an army and appointment powers,
but nothing that would inherently be incompatible with republican government.[9] This principle is the very foundation of
America's democratic republic.
Rehnquist closes his discussion on
the living Constitution by referencing his very own job description: the
importance of being able to "run successfully the legislative
gauntlet."[10] In doing so, there exists the natural
inclination of mankind to "impose their own opinions and inclinations as a
rule of conduct on others."[11] He concludes that the living Constitution, as
envisioned by the brief writer, is one that is "genuinely corrosive of the
fundamental values of our democratic society."[12]
But then again, drawing on Justice
Holmes’ essay on natural law: "Certitude is not the test of
certainty."[13] Very few American citizens can relate to the
experiences of Justice Rehnquist and Justice Scalia. Do their experiences make
certain preferences dogmatic for them?
Whatever the case, their judgments, although beautifully written and
eloquently composed, should be met with some skepticism. This uncertainty, leading to discovery, is
completely consistent with notion of a democratic society.
[1]
Antonin Scalia, Originalism: The Lesser
Evil, Address at the University of Cincinnati as
the William Howard Taft Constitutional Law Lecture, Sept. 16, 1989.
[3] Id.
[4]Id. at 693.
[5]
Antonin Scalia, Originalism: The Lesser
Evil, at 863 (quoting Paul Brest, The Misconceived Quest for the Original
Understanding, 60 B.U.L. Rev.
204, 227 (1980)).
[6]
Id. At 861.
[7]Id., at 863.
[8] Id. at 859.
[9] Id. at 857.
[10]
William H. Rehnquist, The Notion of a
Living Constitution, at 705.
[11] Id. At 706
(quoting J.S. Mill,
On Liberty, in 43 Great
Books of The Western World 273 (R. Hutchins ed. 1952)).
[12] Id. at at 706.
