Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 7

Stare decisis leads to a subtheme in the book: Justice Rehnquist. He saw himself as a leading conservative jurist, but therein lies the problem. Ideology and stare decisis may not always be the best of friends. The juristic record becomes increasingly entangled when ideology serves as a guide instead of stare decisis. There is considerable evidence of this during the Rehnquist era, presented in the chapters that follow, and that would include the years when Rehnquist sat on the court before he became Chief Justice. Rehnquist would often use case-specific rules and methods that became what Justice Souter called unsustainable case law. Stare decisis is a friend forever of sustainable case law. Highlighting some of the dispositional problems with Rehnquist decisions, the book uses the sustainable case law standard instead of applauding either a conservative or liberal point of view. Here, then, is a third unique feature of the book: an application of the sustainable case law standard.

Sustainable case law raises the distinction between “originalism” and “Living Constitution,” or the equally broad distinction between strict constructionism and loose constructionism. Originalists seek out sometimes obscure comments that relate to Justice Marshall as supporting strict construction, but the proof of the pudding is in the delicacy they savor. Examine Marshall’s interpretation of the “necessary and proper” clause. The anti-Federalists were worried that this clause gave the central government unbridled power. Justice Marshall partially obliged them. The narrow interpretation of necessary and proper is that the policy chosen is the best single way to achieve a legitimate government object. This is the interpretation favored by Jefferson. The alternative interpretation of the necessary and proper clause is that it empowered any Constitutional means to get to a legitimate government end. The Federalists favored this interpretation and Justice Marshall wrote it into Constitutional interpretation. This is loose constructionism, but it is a fundamental Constitutional decision: The Constitution Marshall was expounding.