Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 9

Diehard originalists will claim that sneaking politics into judicial decision-making is the problem with its major alternative, the “Living Constitution.” There are, of course, many variants of the Living Constitution as well. We dismiss any variant of either approach that relies on an organicist theory. The Constitution is not an organism and it does not have a life cycle. The metaphor is convenient but also misleading. Humans, except for Dr. Frankenstein, do not make organisms (at least not yet). They make machines, whether cotton gin or constitution, to do the tasks that hopefully make life better, whether city, state, or nation. Creating the nation-state and nation-state system was a stroke of collective genius. It solved several problems but created more. That is why we wait for the improved version. That does not occur because the organism is maturing; nor does it occur because the organism has a will and purpose of its own. It occurs because humans sometimes need a better mousetrap. The Constitution was not a gift from on high; the Constitution does not command our worship or prayer. It is slowly changeable through the man-made amendment process. It changes in other ways as well.

When Virginia wrote its new Constitution following the Revolutionary War, a committee of three undertook the first draft. The committee subdivided its tasks, and Jefferson got the assignment to rewrite the common law. He agreed. When the committee next met, Jefferson simply proposed to adopt English common law. The English judiciary had decided thousands and thousands of minor legal matters over hundreds of years. The common law grew by accretion, without central direction. Building a common law would require rejecting the wisdom of ages and starting all over again. When this slow accretion becomes a hindrance, the legislatures can adopt positive or statutory law that creates an outer layer around the common law. This is the variant of Living Constitution adopted here.

It is an originalist caricature to reduce the Living Constitution method to widely varied interpretations based on the nature of the times. This is the same originalism that originally sought to divine the intentions of forefathers long since passed away. As Western culture entered the Enlightenment, it became clearer that a more conscious or deliberative law complemented the slow accretion of common law. Government had an increasingly key role; tradition was simply inadequate to guide the future in dramatically changing economic and social contexts. There is no thought here to abandon common law, just as Jefferson refused the opportunity to draft a uniquely American common law. Basing the wisdom of the present on that of the past does not glorify or give some charismatic authority to common law; simple human fallibility made it a wise choice. Stare decisis became and remains an important link between hundreds of years of the English common law and more deliberative additions. Our Constitution, particularly in the Bill of Rights, sets the principles or guidelines for this transition. A Living Constitution does not reject common law and replace it with more modern consciously made law. The Living Constitution is a bridge between the past and the present. The originalist obsession with semantics, divining the intent of those dead hundreds of years and establishing something called the public understanding and hence reduce the Constitution to a point in the past, is a vague way of governing the present. As John Dewey might ask: which of several publics do you have in mind this time?