Monday, December 05, 2005

Originalism: A necessary grounding

In many ways, the critique of originalism is spot-on. There are some (maybe many) who use originalism as a facade for writing their own values into the Constitution. But I think if one is honest about Originalism (both strengths and weaknesses) there is some real merit to the idea, certainly more so than other (i.e. Living Constitution, etc.).
As a for instance: Let's talk about Brown. I had a Con Law professor in law school who said that one of the weaknesses of any legal theory was that it had to be able to explain Brown in order to be taken seriously. That is, an argument beyond "good policy, bad law". And while I think he is right, I think that underlines a disingenuity underlying all political debates in the country. Why is it so terrible to say, "The result in Brown was good policy, but it was incorrect legal theory"?
Though I may regret this later if nominated for Supreme Court, I think that at the time of Brown, with Plessy as precedent, on a less charged issue it would have come out the other way. That is, if the stakes were lower, stare decisis would have been given more weight and the case would have come out the other way. Of course the outcome in Brown was the right one from a policy perspective. I'm just not so sure it was consistent legally.
What I don't understand is why it is so terrible to say that the Constitutional outcome is not one you like, so instead you are going to change the Constitution. The amendment process is a pain, I'll grant. But I think it's preferable to unelected Judges "reading into" the Constitution to discover the outcome they think correct. The amendment process may take time, but so do does the judicial progress. Remember that while Brown was decided in 1954, with re-hearing, etc. taking another couple of years. The case was originally filed in 1950, earlier in some other jurisdictions.
The stickler is how to square this with the protection of minority rights. The honest answer is, I don't know. I think the idea that the Constitution clearly protects the "right" of sodomy is pretty silly, but then again I've always been skeptical of "penumbras". The real problem is that litigating political issues transforms the debate in a way I don't like. Instead of talking about the merits of gay marriage, or Roe, we start talking in code about "privacy" or the like, and we do so over judicial nominations.
Ultimately, I think we have to agree to recognize a difference between a Constitutional right (no searches/seizures without a warrant) and a policy choice (sodomy should/should not be legal). I thinked we've argued this before, but just because I don't like a law that gets passed doesn't necessarily mean I have a constitutional right to do what it forbids.

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