Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 8

Original meaning is itself a chimera. Madison and Jefferson made it abundantly clear what was in their thoughts. The written trail gets very narrow as we move down the roster of those at the Philadelphia Hall or in the first Congress. Assuming we are not divining the thoughts of people dead 200 years, what is it that we must understand or where do we locate original meaning? The originalism idea seems to purport that there was a common meaning and that it is discoverable. What if, as indeed occurred, there were several meanings? What if the past does not present itself as a monolith? The sleight of hand called public understanding has all these problems and more. We have little access to the thoughts of commoners. Is a legal exposition of the day enough replacement? Exactly how elite is the “public understanding”?

A brief word on semantic analysis is in order. Here the Constitution already contains its meaning; look at what it says. This may well be a vehicle for avoiding history wars and the myth of public understanding hundreds of years ago. What was, for example, the public understanding of impeachment? Constitutional experts sitting before a Congressional committee cannot all agree on even this question. Far more serious, however, is how Justice Scalia used jargon and pretense to reveal the hidden meaning of the 2nd Amendment. The technique may fool part of the public, requiring closer reading, but it demonstrates how politics creeps into judicial interpretation under the guise of semantic analysis, or the Constitution already says what it means, or perhaps, what Scalia wants it to mean.

A simple comparison of originalism with the discipline of history reveals how preposterous is the claim definitively to reconstruct the Constitutional understanding of an era long since passed. Each generation of historians seek to question, provide narrative for, and broaden our understanding of the past. If it were possible to closely restore the past and its understanding of itself, then there should not be a need for our contemporary Greek historians, Roman historians, and of course American historians. Modern disciplines of history are not just interested in events 30 years ago but all literate and preliterate societies. If history is alive and well, as it will be for generations to come, what is it that the originalists claim to do that would be non-revisable with each changing court or even changing context?

If an originalist discovers original meaning, some originalists argue that the court’s decision must reflect that original understanding. The jurist is free from the burden of case precedent. There are several originalist doctrines, but they all share a common feature. Originalism is a method for sneaking politics into judicial decision-making and draping that decision with a thinly veiled ideology. It is laudable that Congressional members are increasingly familiar with the colonial period. Most, however, are not historians. Because understanding the past is not monolithic, Congressional members are free to pick and choose whatever confirms their mindset. The adversary system is not a method for writing history. The same applies to briefs and oral hearings.

It is unclear how the lower courts maintain any form of continuity. It is not enough to claim that originalism provides continuity across generations and their legislatures. Is this yet another illustration of the hidden hand, or even more appropriately, the deus ex machina? Dissenting voices and sometimes concurring voices routinely challenge the semantics and histories of the majority decision. It is clearly not the case that there is one history of the Founding Fathers. If nineteenth-century semantics can resolve the meaning of words in the eighteenth-century Constitution, or that somehow they have captured the communal ghost of public understanding, then originalism may have a foundation.

One originalist position (there are many variants) argues that the inexorable logic following original meaning could drive to conclusions without being hampered by precedents. Aside from the arrogant assumptions in this claim, this method of Constitutional exposition ignores the incrementalism of precedent and provides fertile soil for sneaking politics into judicial decision-making. There is also the troubling presumption that the resulting body of positive law will somehow triangulate into a coherent and rational body of law.

Strict construction of the necessary and proper clause would have hamstrung the central government and elevated the semi-sovereign states into Balkanized competitors. The federal government as we know it would have long since passed away. Loose construction of that clause permitted legislatures to make alternate policies, most of them consistent with the Constitutional requirements. As the originalists logically must have strict construction of necessary and proper, the legislative decisions on policy means would have been irrelevant if restricting means to the one and only best option; they only need a decision on government objectives. This logic puts extraordinary weight on judicial decision-making while circumscribing the legislature and executive.

Originalists and those echoing Rehnquist’s critique of Living Constitution claim to narrow choice to that guided by popular rule, but that would require the broader interpretation of necessary and proper. It would be ironic if so-called originalism required initial loose constructions. Claim whatever, the public face has a complex skeletal structure. Equally tell-tale is the originalist claim that strict construction required attention to semantics and public understanding while concluding in turn that the ultimate determination of means (not ends) must fall as it may. It is not clear that this assertion preserves the original legitimate legislative objectives. Whether the semantic quibbling and a reconstruction of supposed public understanding is a guide, it is highly ambiguous.

Originalism claims greater popular government than Living Constitution perspectives do. What is the connection between the search for original meaning and a parade of successive legislatures? The search for the final meaning seems to be at odds with, rather than sensitive to the republican principle. It is similarly misleading to claim that the Living Constitution interpretation gives the Constitution a life separated from the original Constitution. The image of a state and its ordered liberty fixed by events in the past for all posterity to enjoy is a curious metaphysic where the dead send commands to the living. This conjures the image of an organic state where power and society combine to form a being with life and will of its own transcending its individual components. The Founding Fathers, particularly Jefferson, saw the states as a machine made by man for human purposes. Citizens should not worship the state or its government; the same applies to the Constitution. Using the Constitution as a bridge between common law and positive law recognizes its importance without a metaphysical overlay. Stare decisis limits judicial roving and wondering far more than originalism in any of its forms. Originalism claims to be more conservative then the Living Constitution approach, yet many of its results, as demonstrated in this book, are quite the contrary.