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Bench Memos

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Getting It Right Can Be Hard Work



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In a post earlier today I argued that conservatives ought to be “results” oriented when it comes to constitutional law. Conservatives generally hold that there are right (correct) and wrong (liberal) answers to most constitutional issues. Originalists are committed to the view that the ratifiers’ understanding is the heart of constitutional law–and that this “heart” can be recovered through historical inquiry.

That is NOT to say or suggest that doing constitutional law is any easier. Saying that there are correct (and incorrect) answers to an inquiry implies nothing about the effort needed to get things right. Just ask the next mathematician or economist you meet if you doubt it.

Actually, I think constitutional law is pretty hard, especially because so much of it depends on history. And that dependence creates at least the following two challenges, neither of which can be handled just by virtue of standard legal training and experience.

1. Avoid anachronistic readings of the historical material, which means basically avoid “law-office” history. There are many examples in the US Reports where various justices (in more or less good faith) misunderstand terms, concepts, and relations among various ideas in our constitutional history. Church-state is probably the biggest disaster area. One example that has infected the whole corpus from Everson (1947) on is the justices’ habitual understanding of the term “sect” (and cognates) as “religion”. Thus, historical evidence of a desire to
get “sectarian” teaching out of schools becomes evidence that religion
was being kicked out.

2. Avoid throwing up one’s hands. The less disciplined and less informed one is when it comes to constitutional history the more likely one is to look at all the arguments to and from about “original” intent and conclude that history cuts equally both ways. Then one is likely to decide the case on other grounds. Brown is of course the classic example.

These two challenges are a tease, a sign of the intellectual ability and stamina which any Justice will need to refute the historically gilded sophistries of a David Souter and his academic enablers.



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