Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 10

This book provides a technique for examining the court’s great chain of reasoning on various themes over time. Expecting combating attorneys to reveal the proper precedents for a case is a hit-and-miss proposition. The method used in this book identifies various themes or principles that have been at work under common law, under the Constitutional law, and under the precedents that follow. These themes follow chronologically from the Marshall Court through the Rehnquist Court. We assess cases using the sustainable case law principle. This has a backward-looking and a forward-looking dimension. First is it consistent with or along the lines of previous cases? Second, does the case provide a basis for further precedents that reflect the logic of the law instead of a jurist’s ethical or policy preference? To be sure, ethical and policy principles entwine with sustainable case law. Those are identifiable. If a directional change is necessary, what that change will be, and why the change needs be, should be upfront rather than camouflaged under the claims of semantics, the original intent, or past public understanding. A critically important test of a legal change is whether it can sustain the future case law without miring into ambiguities, uncertainties, and plural interpretations.

The Constitution of 1787 constructed a vision of federalism quite different from that in the Articles of Confederation. That principle, and its update after the Civil War, is both understood and respected by advocates of the Living Constitution. Indeed, the unfolding of positive law after the adoption of the Constitution of 1787 clearly saves the federal arrangement from states and anti-Federalists who would revert to the image of a collection of sovereign states. We might also note that originalists face the 14th Amendment with great difficulty. It was and is a game changer, and whatever motivated the Black Republicans in 1868 is a public understanding(s) different from and contrary to any public understanding(s) from 1787. It is also simply false to claim that a Living Constitution method seeks to amend the Constitution without going through the amendment process. Such a claim misses the logic and spirit of stare decisis. If routine and non-routine court decisions required Constitutional amendments, the Constitution would have passed away some time ago. Oddly enough, there is no such requirement in the Constitution in the first place.