“Kevin Drum”:http://www.washingtonmonthly.com/archives/individual/2004_12/005311.php links to “Thomas Krannawitter’s interesting defence”:http://www.latimes.com/news/opinion/sunday/commentary/la-oe-kranna12dec12,1,4469435.story?coll=la-sunday-commentary of Clarence Thomas’s jurisprudence. Apparently he’s the best Supreme there is because only he understands that all rights come from God. In the course of putting forward this good Christian view, Krannawitter makes the following charitable interpretative claim.
bq. By 1986, liberal Justice William Brennan could easily dismiss the Constitution out of hand because it belonged “to a world that is dead and gone.”
Hmmm, is that what Brennan really said? Here’s what I think is “the source of this quote”:http://www.politics.pomona.edu/dml/LabBrennan.htm.
bq. We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.
Yeah I’d say that talking about its genius and great principles amounts to “dismissing the Constitution”.
{ 25 comments }
jet 12.13.04 at 2:00 am
Yes because unelected justices should be interpreting the Constitution as it means in “our day”. Why run for Congress as maybe in an “our day” interpretation the Justices get to make law too. I blame slavery and racism for the evil we call “activist judges”. Without the need to speed the civil rights movements the use of the courts to change law would not have become common practice. And those on the left should not embrace this as it is a violation of the separation of powers. On a smaller scale we can see the damage in Tennessee when those same activist judges destroyed TennCare, what was to be a model of socialized health care. So shame on judges who do not know their place.
Here’s my oft used example:
In “our day” the freedom of speech is too cumbersome for society and should be severely minimized with a federal permit required to use controversial speech in public. It was all well and good for those 20th century people, but we’ve moved on to a more enlightened society where harmful speech’s effects are known and controlled.
This was used on the 2nd amendment, why not the 1st?
Kieran Healy 12.13.04 at 2:36 am
Kevin Drum … he’s the best Supreme … because only he understands … God.
I think … Twentieth Century Americans … look … dead and gone
Those are some odd views you have there, Brian.
Katherine 12.13.04 at 2:38 am
We have the liberal activists of the Warren court to thank for a First Amendment that is actually enforced. Read the WWI cases sometime, and then read Brandenburg v. Ohio, NY Times v. Sullivan, and the Pentagon Papers Case. Just as we have them to thank that the Fourteenth Amendment is actually enforced.
Brennan, Marshall, Warren, Douglas, Black, Blackmun–they overreached sometimes, but without them our country would be unrecognizable.
SamChevre 12.13.04 at 2:44 am
This post captures an essential difference between the Left and the Right on constitutional interpretation.
For those on the Left, the important thing about the Constitution are its “abiding principles,” which can be interpreted to fit “current problems and current needs.”
For those on the Right, the Constitution is , first and foremost, a LAW; as such, it has static meaning, which does not change–that’s the point of a written law. If the world changes and the law needs to change, it can be changed–but it doesn’t change meaning over time. This method of interpretation makes for much more predictable interpretation of the Constitution, which helps in achieving “a government of laws and not of mean.”
bellatrys 12.13.04 at 2:56 am
This is like what the Ludwig von Mises institute did with Mill to prove that he was a “soft”, unserious, moral relativist of a liberal – the most amazing job of simultaneously cutting out bits that contradicted their thesis and ignoring the fact that some of what he was saying was ironic, as made clear by the surrounding paragraph, and this was done as a tag-team by two different authors, one in a book, the other the book reviewer, on that site.
It revealed either a shocking level of incompetence from people with more letters after their name than I’ve got, or a shocking level of intellectual dishonesty: either they hadn’t bothered to actually *read* Mill, or they were sure that their readers hadn’t and wouldn’t based on their trashing of him…
(I actually tried to email the second author and call him on it, but it bounced.)
BigMacAttack 12.13.04 at 3:08 am
A few posts down in the comments thread ,I winced, as self proclaimed conservative Paul Cella, claimed the values of the Constitution exclusivley for consevatives at the expense of Millians.
Now, I shake my head and wonder, was that nut job right?
(He wasn’t even close but you do have to wonder after reading stuff like this.)
aj 12.13.04 at 3:40 am
Could someone explain to me how so many state’s rights conservatives can read “we the people” as “we the states” and still manage to convince people that their position is exactly consistent with that of the founders? [Note: John Calhoun was not a founder.]
Also, on the 2nd amendment: As I understand it, despite all we hear about the Constitution and guns, most gun control battles take place in legislatures, not the courts. Wasn’t the last Supreme Court case concerning guns actually in the 1930s? And what’s the deal with that “militia” business, anyway? Was that part of a world that is “dead and gone” and so can be rightfully ignored today?
And on the 14th amendment: was the Civil War fought in order to give corporations the status of legal persons?
And just for fun, check out this list of Constitutional amendments and the dates they were ratified. Some states still don’t seem to have ratified various amendments. I know it’s symbolic, but it’s still interesting to see.
Tom Doyle 12.13.04 at 6:42 am
I notice one individual that Kranawitter shockingly neglects to (mis)quote at all- “the second black Supreme Court justice in history.”
Aside from the fact this omission is disrespectful, we must ask why a Constitutional scholar would write an article in a major newspaper, praising Justice Thomas for his alledged “natural-law jurisprudence,” and quoting all and sundry in defence of these purported “timeless…natural-law principles,” yet not allow their supposed champion to speak for himself, as it were.
Perhaps Justice Thomas’ expressed views on the subject do not comport with the “philosophy” that Kranawitter’s article imputes to him?
I haven’t a clue. But the authors misleading quotations give me no confidence that his description of Justice Thomas’ views is accurate. Does anyone know?
schwa 12.13.04 at 7:16 am
Responding more to jet’s hilariously asinine comment than to the main post…
Why is it that certain elements on the right complain so vociferously about “unelected judges”, but not the “unelected Framers”? Because that’s what they were.
And if it comes to that, how can they jump so effortlessly from whining about “unelected judges” to singing paens to the structure of the Constitution? When last I checked, the Constitution had a hell of a lot to say about thwarting popular will, which is sort of what the use of “unelected” as a pejorative implies is bad. And I know the people who popularised this delightful bon mot have read Federalist 10.
The thing that makes judges worth having is precisely that they are not elected. Check out the (elected) Texas court system if you think otherwise.
On an unrelated note, I continue to applaud Michael Kinsley’s “give these fruitcakes op-ed space to make it absolutely clear to all and sundry how disconnected from reality they are,” strategy.
Tom Doyle 12.13.04 at 7:33 am
“A generation of law students and politicians has been trained in “legal realism,” which is nothing but liberal contempt for the Constitution dressed in academic garb. For liberals who believe rights come from and can be revoked by government and judges, a high court justice talking about natural rights is an embarrassment. The size, scope and purposes of our government are no longer anchored in and limited by our Constitution.”
Thomas L. Krannawitter’s definition/description of “legal realism†is idiosyncratic, and historically inaccurate. Below is a more conventional representation:
Legal realism is a family of theories about the nature of law, usually associated with the United States (American Legal Realism) and Scandinavia (The Scandinavian Realists). Justice Oliver Wendell Holmes, Jr. is sometimes considered the most important precursor of American legal realism. Among the important realists were Jerome Frank, Karl Llewellyn, and Roscoe Pound. No single set of beliefs was shared by all legal realists, but many of the realists shared some of the following ideas:
Belief in the indeterminacy of law. Many of the legal realists believed that the law in the books (statutes, cases, etc.) did not determine the results of legal disputes. Jereome Frank is famously credited with the idea that a judicial decision might be determined by what the judge had for breakfast.
Belief in the importance of interdisciplinary approaches to law. Many of the realists were interested in sociological and anthropolical approaches to the study of law. Karl Llewellyn’s book The Cheyenne Way is a famous example of this tendency.
Belief in legal instrumentalism, the view that the law should be used as a tool to achieve social purposes and to balance competing societal interests.
The legal realist movement was in its heyday in the 1920s through the 1940s, but as its leading figures retired or became less active, it gradually faded. In contemporary legal theory, there are many groups that claim to be heirs to legal realism, including the critical legal studies movement and the law and economics school.
MORE
liberal 12.13.04 at 7:36 am
SamChevre wrote, For those on the Right, the Constitution is , first and foremost, a LAW; as such, it has static meaning, which does not change—that’s the point of a written law.
Wrong. A constitution is not a law per se.
Sebastian Holsclaw 12.13.04 at 7:48 am
“Yeah I’d say that talking about its genius and great principles amounts to “dismissing the Constitutionâ€.”
If you talk misinterpret something badly enough I don’t think dismissing it is a ridiculous thing to say about the endeavour. For instance if I said that I respected Ann Rynd because she powerfully communicated the obvious understanding that governments need to be in charge of every aspect of our lives if we are ever to function, it sounds like I’m praising her. But if you know very much about Ann Rynd…
bad Jim 12.13.04 at 8:50 am
I’ve never heard of Ann Rynd before. She might be interesting, but it’s more likely that she, like the rest of us, would be boring.
Ayn Rand, on the other hand, is someone we’ve heard too much of, rather like Rachmaninov.
Tom Doyle 12.13.04 at 10:14 am
SamChevre wrote, “For those on the Right, the Constitution is , first and foremost, a LAW; as such, it has static meaning, which does not change—that’s the point of a written law.â€
Liberal responded: “Wrong. A constitution is not a law per se.â€
The U.S. constitution says it’s a “law.†How “static†the meaning should be is disputed.
,
U.S. Constitution
Article VI
[…]
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Barry 12.13.04 at 1:34 pm
“On an unrelated note, I continue to applaud Michael Kinsley’s “give these fruitcakes op-ed space to make it absolutely clear to all and sundry how disconnected from reality they are,†strategy.”
Posted by schwa
Initial results look to have the opposite effect – the American people have a disturbingly deep capacity to redefine success as failure, and failure as success.
Sebastian Holsclaw 12.13.04 at 2:53 pm
I always misplace the y in her name. I’m not sure why.
Tom Doyle 12.13.04 at 4:04 pm
“I always misplace the y in her name. I’m not sure why.”
Is that a pun?
Sebastian Holsclaw 12.13.04 at 5:24 pm
Wood eye resort to silly punning? Of course eye wood.
Katherine 12.13.04 at 5:41 pm
On the First Amendment, originalism & activist judges:
“In the late 1700s, it wasn’t even clear whether the First Amendment covered criminal punishment for politically incorrect speech. Many people argued that it applied only to “prior restraints,” such as injunctions or prepublication censorship rule. Laws criminalizing speech after it’s published, the argument went, were perfectly constitutional — even if, for instance, the laws banned criticism of the government. Only in the 1930s was it firmly settled that the First Amendment protects speech against criminal punishment.
In the late 1700s and early 1800s, courts routinely held that some antigovernment speech — even speech that wasn’t directly inciting crime — was constitutionally unprotected. In many states, until the 1810s and 1820s truth wasn’t a defense to criminal libel prosecutions. Even when it became a defense, it generally applied only when the statement was made with “good motives” and for “justifiable ends,” however a judge or jury chose to interpret these vague phrases. Those limitations weren’t eliminated until the 1960s.
In the first half of the 1800s, courts held that blasphemy could be outlawed, and blasphemy covered not just swearing but the offensive public denial of the truth of Christianity. Until the mid-1900s, judges routinely sent people to jail for publishing newspaper articles that criticized the judge’s decisions. Until the mid-1900s, obscenity laws punished not just hard-core pornography, but serious literature as well as discussion of contraceptives.
Moreover, until the mid-1900s, the dominant view was that the government had virtually unlimited power over its own property and its own employees. Until recently, courts would probably have upheld campus speech codes simply on the grounds that public universities were completely free to sanction and expel students for any reason at all.
And modern free-speech protections were largely the work of Justices Oliver Wendell Holmes and Louis D. Brandeis, who were generally associated with the liberal wing of the Court on most issues; of FDR’s liberal appointees to the Court; and of the notoriously liberal Warren Court.”
That’s by EUGENE VOLOKH.
“Original intent” originalists are often completely ignorant of, or unwilling to discuss, the embarassing facts about what was originally intended. A first amendment that allowed criminal penalties, just not prior restraint. A fourteenth amendment that allowed de jure segregation. A fourteenth amendment that allowed laws against miscegenation. An eighth amendment that allows severe flogging of prisoners,and execution for all sorts of crimes. etc. etc.
And I’ve found few “original meaning” conservatives who do not slide into “original intent” whenever it became convenient.
Ken C. 12.13.04 at 5:50 pm
“For those on the Right, the Constitution is , first and foremost, a LAW; as such, it has static meaning, which does not change—that’s the point of a written law.”
Indeed, I agree that the Founding Fathers Original Intent should be used. Therefore, since the framers intended that citizens should have the right to all the cannon, flintlocks, and swords they desire, I say the right to bear such arms should never be abridged.
Similarly, since “the press” refers clearly to the printing press, or perhaps the cider press, I say that the freedom to run a printing or cider press should never be abridged. Plainly, the Founding Fathers’ Original Intent never applied to radio, telegraphy, telephony, television, or them new-fangled internets, so we darn well ought to regulate the heck out of them.
Finally, I’m grateful for the vigilance of Justice Scalia and colleagues, in discerning the FFOI as it pertains to the Rights of States to decide their own voting procedures. Clearly, our Founding Fathers intended Florida to have no such right, and for Bush to be president. Similarly, the FFOI clearly was that states have no right to decide who can get married.
frank fucking rizzo 12.13.04 at 6:44 pm
This
For those on the Right, the Constitution is , first and foremost, a LAW; as such, it has static meaning, which does not change—that’s the point of a written law. If the world changes and the law needs to change, it can be changed—but it doesn’t change meaning over time. This method of interpretation makes for much more predictable interpretation of the Constitution, which helps in achieving “a government of laws and not of mean.â€
followed by
Also, on the 2nd amendment: As I understand it, despite all we hear about the Constitution and guns, most gun control battles take place in legislatures, not the courts. Wasn’t the last Supreme Court case concerning guns actually in the 1930s? And what’s the deal with that “militia†business, anyway? Was that part of a world that is “dead and gone†and so can be rightfully ignored today?
makes me smile.
jet 12.13.04 at 8:37 pm
aj,
The last Supreme Court case concerning guns was last year, I believe. The Court decided that the federal government could not regulate machine guns created by a person that were not intended for sale.
Schwa,
You post your comment mocking the Constitution’s framers in the NYT’s and I’ll post mine advocating restraint on the type of activist judges who destroyed TennCare and we shall see who looks “asanine” ;)
Sucka.
John Emerson 12.14.04 at 4:44 am
Jesus, I thought that “Krannawitter” was some kind of lame nickname for Krauthammer, whose name is funny enough anyway.
liberal 12.14.04 at 12:50 pm
tom doyle wrote, This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land
Note that I had written A constitution is not a law per se. [Emphasis added]
That is, a constitution is “law,” but not “a law.”
Related point: see the writings of Ronald Dworkin (e.g., his Freedom’s Law: The Moral Reading of the American Constitution) for a discussion of the lackings of the originalist position.
R J Keefe 12.15.04 at 12:27 am
Fascinating comments, but isn’t the point of Brian’s post the shamelessness with which Troglodytes misquote, misrepresent, and misconstrue texts? It ought to discredit them, but instead they make it work. How? – Naive in Yorkville
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