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interpreting constitutions « Previous | |Next »
February 5, 2007

This review of a book on Justice Scalia---The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court by James B. Staab---- helps me to get a grip on constitutional interpretation. There are diverse strands of constitutional interpretation that provide the reasons for why we disagree – reasonably – about the way to interpret the constitution. Certainly the constitution is not what the courts say it is.

Firstly, I do not understand what 'a Hamiltonian on the Supreme Court' means. I understand that Hamilton was part of the founding debate over federalism that has in many ways defined the United States throughout its two-hundred-year history. As I understand the debates ended with the promoting strong national power in certain spheres, yet recognizing that the states are sovereign in other spheres.

Secondly, translating the founding debate between nationalism and states’ rights to the current Supreme Court and America is difficult. But I understood that the Court’s conservatives – and particularly Justice Scalia – are usually in the Jeffersonian, states’ rights, dual federalism camp. So how do we understand the interpretation of Hamilton as the cooperative-federalist, or nationalist, view of the Constitution and nation. Does than mean centralist? Seeking to implement an expansive interpretation of national powers at the states' expense, in constrast to Madison and Thomas Jefferson who sought to bolster state powers? That would imply that a subtitle more like A Hamiltonian on the Supreme Court?

Ward says that according to Staab, Hamilton’s political principles consisted of a formalistic view of separation of powers, an energetic executive, a political conception of public administration, a strong and independent federal judiciary, and a political process approach toward federalism. The first a strict dedication to separation of powers--is coupled to a suspicion of legislatures and considerable deference to executive prerogative. Scalia is also willing to diminish judicial powers and advantage the executive.

However, the review by Artemus Ward, says something I can understand:

In general, Scalia is most closely identified with a formal textualist and originalist jurisprudence. He argues that the plain meaning and the original understanding of the Constitution or statute in question should guide judges in making decisions. He uses history and tradition to determine original meaning. He is critical of his colleagues who espouse the idea of a living Constitution, in which the document’s broad principles are to be reinterpreted as society evolves. Scalia sees the living Constitution theory in conspiratorial terms. He rails against those who use it, seeing the theory as a smokescreen for judicial activism with judges illegitimately enacting their preferred policies in the name of the Constitution. Scalia points to the formal amendment process as the only legitimate way to change the document.

I've never really understood the formal textualist and originalist jurisprudence position. I presume textualism and original intent acts as a constraint on judging in that it holds the role of a judge is to interpret text and not make policy. I understand the politics:---the primary threat to democracy is unelected judges creating rights for minorities that trample on the rights of a democratic majority is how this is argued for in Australia. Liberal activism means that liberal judges write their own subjective opinions into constitutional law. They attribute to the Constitution rights that are the judges' own invention, and then devise remedies on the ground that the Constitution requires them. The expansion of constitutional liberties by liberal, rights-based activism ---unelected judges"usurping legislative powers---is what is blocked by conservative constitutionalism. This is a conservatism that reacts against the liberal welfare state, criticizes the expansion of bureaucracy and bureaucratic power in terms of untrammeled discretion; criticizes expanded pluralism as it threatens vested interests; and criticizes the moral discord of contemporary society because of its challenge to the political order and stability of the regime.

What what is blocked is liberal “social engineering” not judicial activism per se, because we have conservative activism. I understand that originalism holds that a Constitution (or statute) has a fixed and knowable meaning which is established at the time of passage or ratification. This draws a sharp, categorical distinction between those contexts in which the original constitutional text declares limits that the courts should actively enforce, on the one hand, and those contexts in which the text is ‘silent’ and thus calls for restraint, on the other. This means using judicial power to protect property rights and limit governmental efforts to regulate business or to impose social or economic equality.

Texualism is part of the conservative effort to change the liberal direction of constitutional law. Textualism means that the judge reads the Constitution and law as narrowly and specifically as possible and that the judge is not to treat language as the basis for broad declarations of rights or legislative purposes. Formal means without context and a rejection of the use of information that might shed light on the objectives of a text, such as legislative history, and a refusal to use resources extraneous to American constitutionalism, such as foreign and international law.

So what happens when the text is ambiguous? Is that when original intent comes into play? 'Original intent” means that the Constitution must be interpreted according to what it meant when it was originally adopted. How do we interpret the intent of the founding consitutional fathers? Does that mean turning back to original documents, such as The Federalist? But diverse political traditions (liberal and republican) run through that text. Isn't that re-introducing context, and the use of tradition? Which tradition? Or do we ignore the intent of the founding fathers and look for original intent in the principles of the Constitution of the United States, which are to be found in the Declaration of Independence?

If so, then we have The Declaration of Independence enunciating truths of natural law; the principles of the Declaration inform the Constitution; and, for that reason, the Constitution must be interpreted as if those principles had been written into it. What are those principles? It is the Framers commitment to the natural rights and natural law doctrine of the Declaration of Independence. So the salvation of the conservative movement must come from the renewal and reaffirmation of the principles of the American Founding, embodied above all in the Declaration of Independence.

| Posted by Gary Sauer-Thompson at 11:35 PM | | Comments (4)
Comments

Comments

Gary, If you google the item below you will find an interesting piece which puts the Scalia agenda into a much wider (and chilling) perspective.

The Despoiling of America: Yurica Report

John,
The Despoiling of America is more about the the Pentecostals and fundamentalists than conservative constitutionalism per se.

However, it does create a picture of what is forming here in Australia with the attack on secular humanism,(nihilism)and on the educated middle class (cultural elite); the view that government derives its moral authority from God.

Gary, I think it is all interlinked. Part of a movement to turn the USA into a theocratic state. And also "one market under god".

There are many players in the game. For instance the highly influential "Discovery" Institute has strong links with many of the persons (and their organisations) mentioned in the Despoiling article. And also to influential outfits such as the Heritage Foundation, the AEI etc---the purveyors of the "one market under god" meme.

John,
yes we can speak in terms of a conservative movement and it is concerned with theocracy. But there are tensions and conflicts within the movement.