Bench Memos

Don’t King Me

Professor Franck seems to be missing my point.  Precisely what I have been trying to argue is that determining “what the Constitution says and was understood to mean by those who made it” requires understanding the background principles and assumptions that went into its making.  You can’t understand the meaning or the practical contours of things like ”the right to keep and bear arms” or ”unreasonable searches and seizures” unless you comprehend what the framers believed about rights, liberties, and the proper scope of state authority over the individual.  This is not an abandonment of originalism but an enrichment of it.  It is an acknowledgment that the Constitution’s original meaning is not only impossible to discern but substantively hollow unless it takes into account the original purposes and principles of the framers. 

 

This robust conception of originalism does not open the door to rule by ”philosopher kings,” because it remains moored to a fixed standard of constitutional meaning that is independent of judges’ subjective policy desires.  It still requires judges to look back at the fixed meaning of the document, but it does not pretend that this meaning can be understood, extrapolated, and applied without the benefit of the proper context. 

 

On top of this, it seems to me that the worry about “philosopher kings” and “tyranny of the judiciary” tends to be overblown, as judges are confined to a largely negative role that severely limits their potential for tyrannical action.  We usually worry about tyrants passing unjust laws and issuing commands that infringe on people’s lives and liberties, but judges for the most part can’t do this.  They are limited to striking down laws that they deem unconstitutional, which is a power that can be abused, to be sure (see Roe v. Wade), but that will always remain a very limited form of tyranny.  This is one of the reasons Alexander Hamilton was correct when he wrote that ”Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”

 

One of the core functions of a written Constitution is to place fixed limits on the political branches.  The framers wanted the negative power of the judiciary to enforce these limits–precisely to keep certain rights out of the hands of politicians, not to defer to the impulsive political process at every opportunity.  Article III specifies that “The judicial power shall extend to all cases, in law and equity, arising under this Constitution [and] the laws of the United States.”  Contrary to Franck’s assertions, nothing in the document suggests that this power should be so atrophied that it shrinks from enforcing the provisions of the very Constitution that judges are sworn to uphold.

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