Friday - October 02, 2009

 Originalism

 I just finished listening to this week's "Uncommon Knowlege" and the interview with Judge Laurence Silberman.  "Uncommon Knowlege" is a very good series by Peter Robinson, where he interviews people very intelligently regarding politics from a much more interesting perspective than the typical leftist schlock on tv.  

In this week's interview I liked the discussion of the Second Amendment, but I was more fascinated by the final segment where Silberman gets thoroughly grilled regarding so-called "originalism."

Silberman's arguement goes like this:  An originalist properly takes not only the meaning of the Constitution and laws as originally written, but also as it has developed over the years.  

But what happens when decisions were wrongly decided?  For instance, stare decisis holds that once a decision is made, it should not be looked at again.  This is a fiction, of course, the law is filled with examples of judges deciding that past decisions are wrong.  There is a classic formula addressed by Sandra O'Connor in Casey where a judge is to weigh whether to reject stare decisis.  The problem with such formulas is that they are terribly subjective and judges are well known for shoe horning their opinions of an outcome into such pre-existing formulas.

"The job of liberals is to keep making mistakes and the job of conservatives is to keep them from being corrected." G.K. Chesterton as quoted by Peter Robinson

Silberman seems to personify that way of thinking.  He thinks the purpose of an "originalist" is to "stand athwart efforts to decide cases in the future in the form of an evolving Constitution."  

The obvious problem is that this creates a certainty that the Constitution and our laws will continue to lurch only to the left and never be corrected.  He gives the example of capital punishment.  There are many progressive jurists who would dearly love to declare capital punishment unconstitutional.  As the law stands now, this is not possible according to current theories of the "cruel and unusual punishment" clause of the Eighth Amendment.  But the progressives have nothing in their philosophy from changing that interpretation.  Once it is changed, "originalists" such as Silberman would refuse to correct that incorrect decision.  

It's a loser's game.  Silberman even mocks so-called libertarians whom he characterizes as judicial activists in the other direction.  

Personally, I reject this loser mentality.  Such a philosophy to hack back progressivist creep should be called "judicial correctivism."  Roe and Casey should be overturned.  The Commerce Clause should be again restricted, and the meaning of the Tenth Amendment should be restored.  

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