Monday, September 16, 2013

The Lesser Evil Of An Undead Constitution

Comment on Antonin Scalia's Originalism: The Lesser Evil, and William Rehnquist's The Notion of a Living Constitution

By Marianne Stewart
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.
[2] William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 702 (1976).
[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.
[13] Id. at   at 704 (quoting O.W. Holmes, Natural Law, in Collected Legal Papers 310, 311 (1920)).