Part 3 of 5 (actually I didn't need parts 4 and 5 because I was able to fit it into 3, so this is the final part.. thanks!)
SECTION 2.
Even if you don’t like originalism, you still have to grapple with its main critique of living constitutionalism. Namely, living constitutionalism gives too much power to a group of unelected justices to in…
Part 3 of 5 (actually I didn't need parts 4 and 5 because I was able to fit it into 3, so this is the final part.. thanks!)
SECTION 2.
Even if you don’t like originalism, you still have to grapple with its main critique of living constitutionalism. Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly.
There are a couple of ways progressives have responded. One strategy is to combine originalism and living constitutionalism. This tactic gives living constitutionalism an anchor in the text. The basic idea is that you look for the original meaning, but the original meaning at a higher level of generality. So you take a constitutional phrase such as “equal protection” and say it applies to all sorts of situations, such as gay marriage. I’m sure I’m missing nuances, but to me, this combined approach seems like it is just living constitutionalism by another name.
Another response is to stress living constitutionalism’s pluralism. If you are a Supreme Court justice, you should consider a whole bunch of factors when making a decision. Yes, take into account the text’s original meaning. But also consider the consequences to current society, how SCOTUS has ruled in the past, how it would affect the court’s reputation, and what the average American thinks.
The grab-bag approach doesn’t solve the problem completely. Unelected justices still have enormous power to decide our lives. And this pluralistic view won’t satisfy all—or even most—critics. But I like it because there is at least some balancing going on. A pluralistic method, I believe, would make the court less likely to go against the wishes of the majority of Americans.
Plus, it seems traditionally American to me. The Founders were big into balancing. They loved the balance of powers. They thought their health was all about the balancing of bodily humors. (They got the humors part wrong, but balancing, or homeostasis, is, in fact, important.)
I use a balance of factors when I make decisions in my daily life, a sort of board of advisers in my brain. What does logic say? What about my emotions? How will it affect me in the short term and long term? How will it impact my community? Am I setting a good example for my kids? What would my ancestors think? What will my descendants think?
Perhaps you’ve heard of the famous essay by Isaiah Berlin titled “The Hedgehog and the Fox.” It’s based on an ancient Greek idea about two types of thinkers. A hedgehog views the world through a single lens, whether that’s Marxism or Christianity. A fox views it through multiple lenses, combining approaches and strategies. The saying goes, “The fox knows many things, but the hedgehog knows one big thing.” Originalism is a hedgehog approach. The idea is to interpret the Constitution with a single lens: the original public meaning. I prefer the fox’s worldview. I believe flexible thinking leads to better solutions and a better life. Though I do find the parable paradoxical. The very idea of dividing the world into two distinct types of people? That’s a very hedgehog idea. The fox in me doesn’t like it.
"Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly"
Yep. The entire point of such documents as the Constitution is to prevent rapid and radical change based on the current opinions of a small group of people, especially non-elected people. Don't like SCOTUS? Don't elect Trump / Biden / whomever. Don't like the Constitution? Go through the difficult process of amending it; it's been done.
When Scalia's court decided the Constitution didn't prevent flag burning I hated it, but they were right. And I loved that Scalia and those like him were willing to go against their instincts in order to do the right thing.
This entire piece is undermined by some clearly biased perspectives. The reason there are more conservative legislatures is because of "gerrymandering and other tactics"? Really? You're absolutely right. Every state's citizens sees San Francisco, Portland, Seattle, Detroit, and Chicago, and thinks to themselves, "THAT is EXACTLY how I want to live." This point also ignores the fact that gerrymandering is widespread in Democratic states as well, New York and Oregon being, statistically, two of the most gerrymandered states in the nation.
If you dig deeper into Berlin’s argument, and the fables that precede it (sometimes it’s a cat), it’s an argument for a principled approach to problem-solving and the hedgehog survives due to his simple and unified methodology while the fox faces a paralysis by analysis due to his plethora of disparate options… and dies.
Of course, this is America and, while the hedgehog disappeared from these shores long before Europeans arrived, the fox continues to thrive.
I would encourage you to listen to him. He is a joyful patriot who respects whatever party affiliation or view you hold. He also has a deeper insight into our founding documents than you think:
The fundamental point of conservatism toward the Constitution is: who gets to make changes to laws? Should it be the elected representatives of the people, whether laws passed by Congress & the President or amendments approved by Congress and state legislatures, or should it be unelected judges/justices? Liberals want judges and experts to apply their superior intellect to solving society's problems, regardless of the boundaries set by the Constitution (or laws; see Chevron deference, now thankfully eliminated); conservatives believe that legitimacy derives from the constitutional framework and political decisions within it. Process matters, not just the end result. If the law as written gives a bad result, it's the job of our elected representatives to change it, rather than let judges or agencies act as unaccountable, "benevolent" dictators. As Sarah Isgur puts it on the podcast Advisory Opinions, "Congress, do your job!"
By the way, it is emphatically the duty of the Supreme Court to "go against the wishes of the majority of Americans" when that majority wants to flout the Constitution. Whether it is protecting black schoolchildren in 1950s Little Rock, a Jehovah's Witness who doesn't want to say the Pledge of Allegiance, or a crisis pregnancy center in California that doesn't want to have to advertise where to go for abortions, the Constitution protects the minority from an overbearing government that has majority support, while still leaving ordinary matters of government to majority rule.
Part 3 of 5 (actually I didn't need parts 4 and 5 because I was able to fit it into 3, so this is the final part.. thanks!)
SECTION 2.
Even if you don’t like originalism, you still have to grapple with its main critique of living constitutionalism. Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly.
There are a couple of ways progressives have responded. One strategy is to combine originalism and living constitutionalism. This tactic gives living constitutionalism an anchor in the text. The basic idea is that you look for the original meaning, but the original meaning at a higher level of generality. So you take a constitutional phrase such as “equal protection” and say it applies to all sorts of situations, such as gay marriage. I’m sure I’m missing nuances, but to me, this combined approach seems like it is just living constitutionalism by another name.
Another response is to stress living constitutionalism’s pluralism. If you are a Supreme Court justice, you should consider a whole bunch of factors when making a decision. Yes, take into account the text’s original meaning. But also consider the consequences to current society, how SCOTUS has ruled in the past, how it would affect the court’s reputation, and what the average American thinks.
The grab-bag approach doesn’t solve the problem completely. Unelected justices still have enormous power to decide our lives. And this pluralistic view won’t satisfy all—or even most—critics. But I like it because there is at least some balancing going on. A pluralistic method, I believe, would make the court less likely to go against the wishes of the majority of Americans.
Plus, it seems traditionally American to me. The Founders were big into balancing. They loved the balance of powers. They thought their health was all about the balancing of bodily humors. (They got the humors part wrong, but balancing, or homeostasis, is, in fact, important.)
I use a balance of factors when I make decisions in my daily life, a sort of board of advisers in my brain. What does logic say? What about my emotions? How will it affect me in the short term and long term? How will it impact my community? Am I setting a good example for my kids? What would my ancestors think? What will my descendants think?
Perhaps you’ve heard of the famous essay by Isaiah Berlin titled “The Hedgehog and the Fox.” It’s based on an ancient Greek idea about two types of thinkers. A hedgehog views the world through a single lens, whether that’s Marxism or Christianity. A fox views it through multiple lenses, combining approaches and strategies. The saying goes, “The fox knows many things, but the hedgehog knows one big thing.” Originalism is a hedgehog approach. The idea is to interpret the Constitution with a single lens: the original public meaning. I prefer the fox’s worldview. I believe flexible thinking leads to better solutions and a better life. Though I do find the parable paradoxical. The very idea of dividing the world into two distinct types of people? That’s a very hedgehog idea. The fox in me doesn’t like it.
"Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly"
Yep. The entire point of such documents as the Constitution is to prevent rapid and radical change based on the current opinions of a small group of people, especially non-elected people. Don't like SCOTUS? Don't elect Trump / Biden / whomever. Don't like the Constitution? Go through the difficult process of amending it; it's been done.
When Scalia's court decided the Constitution didn't prevent flag burning I hated it, but they were right. And I loved that Scalia and those like him were willing to go against their instincts in order to do the right thing.
This entire piece is undermined by some clearly biased perspectives. The reason there are more conservative legislatures is because of "gerrymandering and other tactics"? Really? You're absolutely right. Every state's citizens sees San Francisco, Portland, Seattle, Detroit, and Chicago, and thinks to themselves, "THAT is EXACTLY how I want to live." This point also ignores the fact that gerrymandering is widespread in Democratic states as well, New York and Oregon being, statistically, two of the most gerrymandered states in the nation.
If you dig deeper into Berlin’s argument, and the fables that precede it (sometimes it’s a cat), it’s an argument for a principled approach to problem-solving and the hedgehog survives due to his simple and unified methodology while the fox faces a paralysis by analysis due to his plethora of disparate options… and dies.
Of course, this is America and, while the hedgehog disappeared from these shores long before Europeans arrived, the fox continues to thrive.
I would encourage you to listen to him. He is a joyful patriot who respects whatever party affiliation or view you hold. He also has a deeper insight into our founding documents than you think:
https://www.econtalk.org/living-with-the-constitution-with-a-j-jacobs/
https://constitutioncenter.org/news-debate/americas-town-hall-programs/living-constitutionally-insights-from-aj-jacobs-and-jeffrey-rosen
The fundamental point of conservatism toward the Constitution is: who gets to make changes to laws? Should it be the elected representatives of the people, whether laws passed by Congress & the President or amendments approved by Congress and state legislatures, or should it be unelected judges/justices? Liberals want judges and experts to apply their superior intellect to solving society's problems, regardless of the boundaries set by the Constitution (or laws; see Chevron deference, now thankfully eliminated); conservatives believe that legitimacy derives from the constitutional framework and political decisions within it. Process matters, not just the end result. If the law as written gives a bad result, it's the job of our elected representatives to change it, rather than let judges or agencies act as unaccountable, "benevolent" dictators. As Sarah Isgur puts it on the podcast Advisory Opinions, "Congress, do your job!"
By the way, it is emphatically the duty of the Supreme Court to "go against the wishes of the majority of Americans" when that majority wants to flout the Constitution. Whether it is protecting black schoolchildren in 1950s Little Rock, a Jehovah's Witness who doesn't want to say the Pledge of Allegiance, or a crisis pregnancy center in California that doesn't want to have to advertise where to go for abortions, the Constitution protects the minority from an overbearing government that has majority support, while still leaving ordinary matters of government to majority rule.