Moderate originalism is popular with many judges that feel obligated to follow the original"meanings" but not the original applications of the Constitution.The problem with moderate originalism is that it can justify anything. Once we say that we are bound by the principle,rather than by the specific outcomes,that the founders envisioned,we can always make the principle abstract enough to justify any result we want to reach. Judges are free to do what they want; they have to derive from some constitutional provision a "principle" that support them.
The text of the Constitution plays a minor role(ceremonial) in the vast majority of Supreme Court opinions.Most of the real work will be done by the Court's analysis of its previous decisions.The Court follows a detailed,careful account of precedents.Where the precedents leave off,or are unclear,the opinion will make arguments about fairness or good policy;why one result makes more sense than another,why a different ruling would be harmful to some important social interest.Briefs are filled with analysis of the precedents and arguments about which result makes sense as a matter of policy or fairness.The U.S. has over two centuries of experience grappling with the fundamental issues(Constitutional issues) that arise in a large,complex,diverse,changing society.Common law has been around for centuries,long before the Constitution was written. Common law restrains judges more effectively than originalism does.The common law approach provides a far better understanding of what our constitutional law actually is.Originalist feel the Constitution is binding because the person or entity commanded it and had the authority to issue it because of the legitimacy of democratic rule.They feel the Constitution and the amendments is law and anything that isn't ratified by the "people" to be outside the law. According to common law view,the authority of law comes from the fact that it has evolved and has been accepted by successive generations(Jefferson's point).
According to Strauss in "The Living Constitution", a common law approach is superior to originalism in at least four ways.(1)It is more workable..originalism requires judges to be historians(2)it is more justifiable..gives a plausible explanation for why we should follow precedent(3)it's what we actually do...constitutional law follows precedents(4)it's more candid..it is open to criticism. Originalism is different,it claims to be following orders from the founders.
More to come from"The Living Constitution"
No comments:
Post a Comment