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More on Whether the Supreme Court Should Follow Written Law or Pursue Justice:
In response to the poll showing the dramatic gap between McCain and Obama supporters on whether they want the Supreme Court to follow the written Constitution and precedents or to pursue justice and fairness, Josh Patashnik has some provocative thoughts over at TNR's The Plank:
  [T]his reflects very poorly on Democrats. Less than a third of Obama voters are willing to sign on to a fundamental tenet of American government that you learn in elementary school civics class, and half think that judges should just make it all up as they go along. (After a full five days of law school, I find this quite disturbing--have Obama's supporters no shame about admitting this to a pollster!?)
  Now, since it seems unlikely that many Americans spend much time weighing the relative merits of different methods of judicial decisionmaking, it's a fairly safe bet that voters are largely reflecting the rhetoric they hear from political elites: Republicans talk about enforcing the law, while Democrats talk about fairness. Not only does this put liberals at a huge rhetorical disadvantage, but it makes Democratic voters look stupid when they parrot that rhetoric back to pollsters. All the more reason for prominent Democratic politicians to start making an affirmative case that conservative jurisprudence is actually wrong, not just that it sometimes leads to undesirable outcomes. And if liberals can't make that case, they should get out of Justice Thomas's way, take their marbles, and go home.
Bruce:
I dunno, 75% of people polled think aliens landed at Roswell and that the moon landings were faked. I don't really put a lot of stock in this result reflecting much of anything significant.
9.10.2008 1:47am
Rohan:
I don't think it's that surprising. People look to the courts not only to enforce the law, but also to provide justice. Statues of Justice are outside a lot of courts.

If following the law leads to an unjust result, what should a judge do? There's been plenty of times where the law has been unjust. "Three-Fifths of all other Persons", to quote your own vaunted Constitution.

I don't think you should outright dismiss people holding the other view. It is a real ethical question, with no good answers.
9.10.2008 2:25am
Mike& (mail):
it makes Democratic voters look stupid when they parrot that rhetoric back to pollsters

I'd say the same thing about people who go around saying, "Judges should follow the law!" where "the law" is nothing more than a short-hand for outcomes that conservatives want.
9.10.2008 2:40am
Vernunft (mail) (www):
Rohan, do you think Southern states should have been allowed full representation, even though a lot of their population was in the form of slaves?
9.10.2008 3:17am
eyesay:
I believe that most if not all of the five Supremes who ruled in favor of Bush in Bush v. Gore made their ruling for the purpose of having Bush win the election, not because the Constitution unambiguously said that the vote-counting process should be aborted. (Fact: many ballots in Florida were never counted because vote-counting machines rejected them and human beings were never given the opportunity to examine them before the Supremes prohibited them from doing so.) I believe that some of those five Supremes would have voted the other way if all of the facts had been the same except for reversing the names of the parties to the dispute.

In Bush v. Gore and in many other cases, I believe that so-called originalists often decide first how they want to rule and then come up with a real or fake "originalist" reason for doing so.
9.10.2008 3:37am
Vernunft (mail) (www):
Something which, thankfully, we can all read and criticize! Because it's all public.
9.10.2008 3:43am
one of many:
In Bush v. Gore and in many other cases, I believe that so-called originalists often decide first how they want to rule and then come up with a real or fake "originalist" reason for doing so.

But the question is whether or not they should be doing this. So do you agree with the 30% of voters and 49% of Obama supporters who apparently believe that Bush v. Gore was correctly decided when the justices ruled based upon their own ideas of fairness and justice instead of the constitution and precedent?
9.10.2008 3:45am
Nathan_M (mail):
With all respect to someone how has been to five days of law school, I think the result from the survey is more telling of the quality of the question they asked than peoples' actual attitudes.

Suppose instead of asking about "justice and fairness" the question asked whether judges should follow the (a) written constitution and precedent or (b) the founders' original intent. I bet many conservatives would answer (b).

The problem with both these questions is that option (a) is, essentially, a meaningless platitude everyone agrees with. I suppose if Congress passed a law purporting to establish a religion and, for good measure, to permit the quartering of troops in homes in peacetime, (a) would be all a judge would need. But there are no cases that are that easy.

In contrast, (b), whether it be originalism or a sense of fairness, is a particular philosophy a judge can use to help interpret the written constitution. The question asked created a false exclusivity between (a) and (b), but in reality they are not necessarily in conflict.

So I suspect many people who believe in both (a) and (b) would answer (b) to this survey, because they agree with that point of view more specifically, and the question asked creates a false situation where they must chose one of the other. For example, if I was asked if I liked chocolates or sweets I might answer chocolates, because I really like them a lot, even though they are a subcategory of sweets, and in reality I like them both.

Maybe it just that the idea that only 60% of people think the Supreme Court should be guided by precedent and the constitution is so insane I am trying to rationalize these results away, but I really think it is a problem with the survey and not with so many people actually holding such an extreme view.
9.10.2008 3:53am
one of many:
I don't think it's that surprising. People look to the courts not only to enforce the law, but also to provide justice. Statues of Justice are outside a lot of courts.

If following the law leads to an unjust result, what should a judge do? There's been plenty of times where the law has been unjust. "Three-Fifths of all other Persons", to quote your own vaunted Constitution.

I don't think you should outright dismiss people holding the other view. It is a real ethical question, with no good answers.

No good answers, although there is always the Holmesian easy answer. The problem with this line of argument is that it sets up a false dichotomy. The choice is not between the Constitution and Precedent without concern for Justice and Fairness or Fairness and Justice without concern for the Constitution and Precedent. While relying only upon the law (constitution and precedent) for decisions is sure to result in occasional injustices no matter how well constructed the law, completely abandoning the law is itself an injustice to all the people who can never be certain what will or will not result in punishment and how serious that punishment might be. There may be people who are willing to accept either extreme but I expect most people would prefer a combination of the two.

[aside]
One of the problems with the poll is that it's poor wording produced an unequal form of the false dichotomy offering a choice between A: implied solely the Constitution and Precedent and B: mostly a sense of Fairness and Justice (I wonder if that inequality is the reason for the results). I'm not certain what to make of the poll results or how seriously to take them, I do however see a need for more research into the public perception of judicial function including the proper roles of Fairness and Text.
9.10.2008 4:10am
one of many:
Nathan M., I wish I had your certainty. Even amongst such monolithic groups as the Federalist Society (pause for laughter to die down) there are a variety of opinions on the validity of "original intent" as well as the validity of various means of determining "original intent".
9.10.2008 4:15am
LM (mail):
Conservatives have successfully framed the debate, thanks in significant part to one terribly reasoned case (Roe). If the conservatives now in the majority are foolish enough to overreach similarly, they may give liberals the material they need to build a new frame. Not that I have a clue what that would look like. But anyway I'm not holding my breath, since unless the conservatives get another vote more ideological than Kennedy's, the likelihood they'll shoot themselves in the foot approaches zero.
9.10.2008 4:32am
jgshapiro (mail):
LM:


Conservatives have successfully framed the debate, thanks in significant part to one terribly reasoned case (Roe). If the conservatives now in the majority are foolish enough to overreach similarly, they may give liberals the material they need to build a new frame. Not that I have a clue what that would look like. But anyway I'm not holding my breath, since unless the conservatives get another vote more ideological than Kennedy's, the likelihood they'll shoot themselves in the foot approaches zero.

Well, to take a recent case, there is Ledbetter. There you have formalism taken to an extreme that drowns out common sense. They did a pretty good job of shooting themselves in the foot on that one and expect it to come up in the debates this fall if judges get on the radar screen. But the good news is that is is just a statutory case and not a constitutional one, and it is not as high profile as say, Kennedy v. LA or Roe v. Wade.
9.10.2008 5:33am
hawkins:

After a full five days of law school


He really should have left this detail out of the column.
9.10.2008 9:05am
saide:
"And if {L]iberals can't make that case, they should get out of Justice Thomas's way, take their marbles, and go home."

This slightly modified version of Patashnik's last sentence captures the truth perfectly.
9.10.2008 9:43am
Toby:
Am I the only one who sees a sharp disconnect between:

a) Those ravening that judges should commit justice rather than the legal decisions

and

b) often the same individuals arguing vehemently against jury nullification...

Because the judges are in charge of the law, and the people are in charge of justice....
9.10.2008 9:49am
Patrick216:
Remember -- Obama himself believes that judges should use norms of social justice and economic justice to decide constitutional and other issues. That's what the whole living constitution nonsense is about. So it's hardly surprising that Democrats feel that way, too.

But I am concerned about one framing issue with respect to that survey. The question asks:

2* Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

60% What's written in the constitution
30% It should be guided by fairness and justice
11% Not sure.

But if you don't really know what kinds of cases the Supreme Court decides, you might be tempted to answer generally about how you think all judges ought to judge all cases. Fact is, "what's written in the constitution" is irrelevant in 95% of all cases -- your average criminal case and civil litigation involves common law questions, issues of fact, and straightforward statutes. And certainly we all want our trial judges and appellate judges to use "fairness and justice" as part of their decisionmaking.

So what this might be picking up on is the fact that Republican voters are sensitized to the political notion of judges "deciding cases on the law and not by legislating from the bench" and have interpreted the question along those lines. Similarly, Democratic voters are so heavily invested in defending Roe v. Wade (and the penumbra from which it emanated) that they interpret the issue of judges deciding "based on what's written in the constitution" as "code" for a conservative attack on Roe.

A better way to phrase the question would be: "when deciding whether a law or an action by the government is constitutional, should the court rely more on: (1) what's written in the constitution or (2) the judge's view of fairness and justice?"
9.10.2008 10:11am
Prufrock765 (mail):
jgshapiro:

How is Ledbetter an example of formalism run amok?
9.10.2008 10:27am
runape (mail):
This seems like an essentially meaningless poll. It is very likely that most people have only a vague idea of what it is that judges do. Most people have little to no interaction with the judicial system; and those that do are still more likely to have only a passing idea of the proper role of the judge.

By contrast, most people have an excellent idea of what judges do on TV.

I'm willing to wager that if you polled only those people who were either attorneys or otherwise had a reasonably sophisticated understanding of the law, the numbers would be quite close. Essentially all the attorneys I know - progressive or otherwise - believe that text and precedent are the starting point of any analysis. To say otherwise is really a crude caricature of the modern bar and bench.
9.10.2008 10:35am
A.W. (mail):
Does anyone else find it ironic that Democrats are the party of lawyers. And yet their candidate is apparently supported by alot of lawless people.
9.10.2008 11:12am
Justin (mail):
Oh come on, you don't think that those two terms are loaded? Don't you feel that the loaded terms contribute to the result? Don't you think that everyone's reading way too much into a poll worded to get exactly these results?

Orin, does that mean that 11% of of McCain supporters believe that their rulings must be unjust (Law: Not valid within the law; unlawful, The Free Dictionary), or unfair (Not in accordance with relative merit or significance, not consistent with rules, logic, or ethics, partial, The Free Dictionary)? At most, the fact of the matter is, we're talking about paradigms. Not everybody speaks in FederalistSocietySpeak.
9.10.2008 11:13am
zippypinhead:
Runape makes a good point - since too many of the people who answer telephone polls get their understanding of what judges do from The People's Court and Judge Judy -- where the decision basically involves figuring which idiot deserves to get yelled at more -- why are we surprised at these meaningless poll results? At most they might suggest yet another failure in the U.S. social studies curriculum (right up there with a majority of U.S. citizens not being able to find Iraq on a map).

And I'm a little frightened that Josh Patashnik needed "a full five days of law school" to figure out that the poll results weren't entirely consistent with what he should have been taught in elementary school civics class.
9.10.2008 11:49am
Jon Roland (mail) (www):
Let's try to rewrite the Rasmussen question to get a better one, as a way to clarify the issues that such a question might elicit. Here is muine. Perhaps others can do better.


How should the Supreme Court construe the Constitution?
A. Strictly according to its original public legal meaning of the text when adopted in 1789.
B. According to the latest precedents even if they have deviated from the original meaning.
C. According to what is just and fair regardless of what the Constitution says or legal precedents.
D. According to whatever might seem to be popular based on the last election.
9.10.2008 12:07pm
Brett Gardner (mail):
That's an interesting poll Jon, but C and D seem quite a bit more slanted than A or B. Not many people would like to admit to overtly disregarding what the Constitution says.

Perhaps something like

C. According to the spirit of the Constitution (admittedly vague)

D. According to societal trends (ditto)
9.10.2008 12:32pm
Bruce Hayden (mail) (www):
Let me suggest a reason for this differing of opinion. The Constitution was intentionally designed to a great extent to limit the power of a national government. Conservatives, esp. western conservatives like Goldwater, Reagan, McCain, and most likely Palin, believe in a weaker federal government than do their New Deal and Great Society opponents. A strict interpretation of our Constitution would limit the latter's desire for a stronger, more "helpful", more interventionist federal government.

Of course, there is the other side too, which is that those on the left probably do believe that pursuing justice and fairness is an primary goal of the government, and that musty old precedents, the Constitution, and the courts shouldn't stand in the way of this.
9.10.2008 2:18pm
JRL:
I'd say the same thing about people who go around saying, "Judges should follow the law!" where "the law" is nothing more than a short-hand for outcomes that conservatives want.

I believe the phenomenon exhibited by this post is what is called "projection," though I never took any psych classes.
9.10.2008 2:41pm
David M. Nieporent (www):
This seems like an essentially meaningless poll. It is very likely that most people have only a vague idea of what it is that judges do. Most people have little to no interaction with the judicial system; and those that do are still more likely to have only a passing idea of the proper role of the judge.

[...]

I'm willing to wager that if you polled only those people who were either attorneys or otherwise had a reasonably sophisticated understanding of the law, the numbers would be quite close.
Yes, all that may be true, but guess what? We don't poll only attorneys; we poll all those people who only have a vague idea what judges do. (We call these polls "elections.")
9.10.2008 2:49pm
Andy Freeman (mail):
> There's been plenty of times where the law has been unjust. "Three-Fifths of all other Persons", to quote your own vaunted Constitution.

The 3/5 number was a compromise between the "no slaves" North, which wanted the number to be 0, and the South, which wanted the number to be 1. Why? Because they were deciding how to count people for the purposes of political power.

Do you really want to argue that it would have been "more fair" to give the slave-owning South more political power?
9.10.2008 3:05pm
Dilan Esper (mail) (www):
I reject this dichotomy. Judges should follow the law, and they should also do justice. Indeed, part of my criticism of conservative judicial philosophies is that they hold up unjust results as some sort of proof that they are committed to their beautiful principles. Not so. Unjust results are sometimes unavoidable, but they are never to be celebrated, and a more proper description of a judge's job, I would argue, is to to justice to the greatest extent the law permits it.
9.10.2008 3:05pm
Aultimer:
I went to a different elementary school than Josh Patashnik (we had Social Studies - Civics was Jr. High) so I learned that "Judges interpret the law." The original poll question suggests that McCain voters are the ones who didn't grasp the early lesson and believe that legal ambiguity doesn't exist.
9.10.2008 3:09pm
Litigator-London:
What the Ramussen poll ACTUALLY said is:- "(A) In making decisions, the Supreme Court should only consider the original intentions of the authors of the constitution. (B) In making decisions, the Supreme Court should consider changing times and current realities in applying the principles of the Constitution."

(A) is the heterodox approach to constitutional interpretation- the originalist position; (B) is the orthodox approach adopted by most Anglo-Norman systems.

See: Matthews -v- State of Trinidad &Tobago - UK Privy Council[2005] 1 AC 433.

What is distressing to see that with repeated propaganda more and more of the general public are falling for the originalist heresy.
9.10.2008 3:09pm
eyesay:
9.10.2008 3:34pm
Malvolio:
Unjust results are sometimes unavoidable, but they are never to be celebrated, and a more proper description of a judge's job, I would argue, is to [do] justice to the greatest extent the law permits it.
But no further.

Imagine a new evidence coming to light tending to acquit an already convicted man. In certain circumstances, that evidence will simply be ignored, having arrived beyond some admittedly arbitrary deadline.

A soft-hearted judge might put the rule aside, reasoning that true justice -- the release of an innocent man -- is more important than an arbitrary rule.

But of course, without deadlines, the justice system would clog up completely, and many other innocent men would languish in jail while convicts got their cases endlessly reheard.

The law and the legal system that supports it needs predictability, reliability, and finality. Justice is a (occasional) by-product. Like democracy, it's the worst system except all the others that have been tried.
9.10.2008 3:37pm
eyesay:
Malvolio, I hardly think that it would overly clog the legal system to allow re-hearings of convicts when:

heh, I'm not allowed to use <ul> tags
* a juror in the original case provides evidence that he/she was bribed or pressured to convict
* the true perpetrator comes forward with evidence that he/she is the true perpetrator
* DNA evidence not available at the time of the original trial exonerates the convict
* the judge in the original case admits that he/she was bribed or pressured to conduct the case in a manner that would lead to a conviction
* evidence comes to light that the prosecution failed in its obligations to share exculpatory evidence with defendant's counsel
* etc.

If justice does not trump finality, there is no justice at all.
9.10.2008 3:58pm
LM (mail):
Litigator-London:

Could you please give a link to the version of questions you're quoting? Because the Rasmussen website Orin linked in his original post has the questions exactly as Orin quoted them.

Thanks.

BTW, I largely agree with your characterization, but am curious about the source of the quote you apply it to.
9.10.2008 4:11pm
one of many:
Litigator-London, that's not how rasmussen Reports reports the survey questions. As I read more and more responses to the results of the poll I am inclined more to accept that the wording of the poll was such that people interpreted the choices differently. I, and I suspect most of the people who see the high number of people who chose option B as a problem, do not read option A as far from M. Esper's formulation "to [do] justice to the greatest extent the law permits it', which is darn close to your option B.
9.10.2008 4:21pm
one of many:
cross-post LM, sorry for stepping on your line.
9.10.2008 4:22pm
LM (mail):
one of many, thanks for your courtesy but no problem.
9.10.2008 4:35pm
Litigator-London:
Sorry - I got the report of the questions on another blog where it was being discussed in terms of "legislating from the bench" I think the statements in Matthew -v- the State set out how most Anglo-Norman states approach constitutional interpretation: see at para 70:-

"70. A constitution should be interpreted as an evolving statement of a country's supreme law.

71. This is not to substitute the personal predelictions of individual judges for the chosen language of the constitution. Rather, it is a recognition that the values underlying a constitution should be given due weight when the constitution falls to be interpreted in changed conditions. A supreme court which fails to do this is not fulfilling its proper role as guardian of the constitution. It is abdicating its responsibility to ensure that the people of a country, including those least able to protect themselves, have the full measure of protection against the executive which a constitution exists to provide. Dickson J, delivering the judgment of the Supreme Court of Canada in Hunter v Southam Inc [1984] 2 SCR 145, 155, summarised the responsibility of the judiciary:

"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind."
9.10.2008 4:51pm
OrinKerr:
Litigator London,

The problem is that your vision is just one side of the debate, and it is hotly contested. The line between "applying constitutional principles to changed circumstances" and "making stuff up that seems cool and saying you're applying constitutional principles to changed circumstances " is often in the eye of the beholder.
9.10.2008 5:08pm
runape (mail):
OrinKerr,
I agree with your criticism of LitigatorLondon to a certain extent, but it is incorrect to suggest (as your post might be read) that judges who follow philosophies other than originalism are not "follow[ing] the written Constitution and precedents," and it is equally incorrect to say that judges who follow originalism are necessarily doing the same.
9.10.2008 5:26pm
OrinKerr:
runape,

I'm actually not making a point about originalism, but I think the broader point kinda depends. Here's the question: If a judge believes for reasons outside the text and precedent that the Constitution is an abstract entity that has empowered him to do whatever he wants, is the judge following the Constitution when he does whatever he wants?
9.10.2008 5:33pm
runape (mail):
OrinKerr,
I think the answer to your question depends. In some instances you are probably thinking of (including some cases close to your heart, like Miranda), judges are adopting a purposivist approach; they believe (rightly or wrongly) that the constitution was intended to protect certain rights, and they impose rules that, while not set out in the text of the constitution, are intended to implement its purpose. Often, these cases involve broad textual provisions that cannot plausibly be of only one meaning, and varying judicial philosophies will produce varied results.

The premise I don't agree with (and I think I detect something like this in your question) is the idea that anyone who accepts a philosophy other than originalism is necessarily rejecting the text of the Constitution. To take but one example, the so-called minimalists are strongly opposed to originalism, but also strongly grounded in textualism.

All philosophies of judging come from outside text and precedent (nowhere does it say thou shalt be an originalist, yes?) And essentially all judges agree that many provisions of the constitution are abstract and require the adoption of a mode of analysis. But I can't think of a single judge who believes the constitution empowers him to do whatever he wants. Do you have examples in mind?
9.10.2008 5:45pm
eyesay:
OrinKerr,

Isn't your question a straw man? Don't most judges feel obligated to incorporate some of
* precedent,
* the actual legal text,
* statements from the legislators at the time of creating, debating, and passing legislation that sheds light on the meaning of ambiguous legislation,
* the text of the constitution (however interpreted)
* personal notions, such as whether a given punishment is "cruel" and "unusual"?

Where is the judge in the United States who believes that "the Constitution is an abstract entity that has empowered him to do whatever he wants"?
9.10.2008 5:51pm
Brian K (mail):
but it makes Democratic voters look stupid when they parrot that rhetoric back to pollsters.

how is he so sure that republican voters aren't doing the same thing? other than his own hackitude, of course.
9.10.2008 7:05pm
Litigator-London:
Orin Kerr: Do please enlighten me: which Supreme Court in the Anglo-Norman family (outside the USA) espouses originalism as a a permissible method of constitutional interpretation ? Citations would help.
9.10.2008 8:20pm
Jon Roland (mail) (www):
Brett Gardner:

That's an interesting poll Jon, but C and D seem quite a bit more slanted than A or B. Not many people would like to admit to overtly disregarding what the Constitution says.

Perhaps something like

C. According to the spirit of the Constitution (admittedly vague)
D. According to societal trends (ditto)

Actually, I have tried out similar questions on actual voters and was surprised how many would choose (C) or (D), including many with some legal training, but no judges or those who had judicial ambitions.
9.10.2008 10:52pm
Jon Roland (mail) (www):
Litigator-London:

Do please enlighten me: which Supreme Court in the Anglo-Norman family (outside the USA) espouses originalism as a a permissible method of constitutional interpretation?

I once spoke to about 30-40 justices, mostly chief justices, from about as many nations, mostly in the Anglo-American legal tradition, who asked the State Department to bring them to a meeting with me in Sacramento (about 1997). From their questions I gathered that an originalist stance was taken for granted by all, and part of their confusion was over how it would be debatable in the U.S.

I advised them that the Rule of Law is always in danger, even in the U.S., and that they had a duty to defend it, even at the cost of their lives. An observer of my talk commented that I "scared the hell out of them."
9.10.2008 11:01pm
one of many:
Litigator-London,

I'm nor Orin but the Law Lords (or is The Law Lords) of the UK have ruled in the majority opinion of Matthew v The State (at paragraph 20) argues for original-intent originalism "If the Constitution itself shows a plain intention to preserve existing laws, their Lordships find it impossible to accept that Parliament, by enacting section 5(1) of the 1976 Act, can have created a mechanism outside the Constitution for undermining the effect of its provisions."
9.11.2008 12:34am
Mark Field (mail):

I'm nor Orin but the Law Lords (or is The Law Lords) of the UK have ruled in the majority opinion of Matthew v The State (at paragraph 20) argues for original-intent originalism "If the Constitution itself shows a plain intention to preserve existing laws, their Lordships find it impossible to accept that Parliament, by enacting section 5(1) of the 1976 Act, can have created a mechanism outside the Constitution for undermining the effect of its provisions."


I'm not LL, but then again, the sentence you quote is not originalism either. It's just a statement that a constitution is superior to law. Not the same thing.
9.11.2008 1:39am
one of many:
It is originalism, start at about paragraph 16 and read on for a while. I chose just the one sentence because it summed up the argument being made concisely.
9.11.2008 3:19am
Litigator-London:
Mark - I agree. What is in issue are methods of interpretation where there is ambiguity. No ambiguity - no room for resorting to interpretation. Justice Scalia gave an example when speaking at a Millenium Lecture (as Master Scalia - a Bencher of the Inner Temple). What constitutes "cruel and unusual punishment" - orthodox interpretation would say - "in accordance with evolving standards of decency" - originalists would say "in accordance with the imputed intent of those who drafted the Bill of Rights" - although he did have the grace to say that the concept of branding thieves with a hot iron gave him some difficulty!
9.11.2008 3:23am
Litigator-London:
One of Many: Not so. The Privy Council makes it clear they they consider that capital punishment is today unacceptable in a civilised society. Where possible they will so interpret an ambiguous constitutional text - and they give examples where they have done so. But where there is no ambiguity they are not entitled to ignore the plain words of the text. So when Barbados passed constitutional amendments to nullify the judicial intepretation, the Board is now bound by that sovereign decision to derogate from human rights. Originalism is where ambiguities are interpreted not by contemporary standards but by standards at the time the document was drafted so as to restrict the ambit of the constitutional guarantees.
9.11.2008 3:41am
one of many:
Litigator-London, you seem to be using a highly specialism definition of originalism, sounds almost like the Dworkian formulation, or a Bork formulation. As soon as you delve into the original meaning of a constitution (or law) you are dealing with originalism of some form. This can be confounding because 2 originalists of the same school can reach different conclusions, a textualist-originalist can decide that the US 8th amendment refers only to cruel and unusual at the time of adoption while another textualist-originalist can read it read it as referring to current standards of cruel and unusual, however both are originalists and only use what is written in the text to determine what the law is. You might want to consider this paper by Balkin for a different form of Originalism.
9.11.2008 5:09am
Jay Myers:
Dilan Esper:

I reject this dichotomy. Judges should follow the law, and they should also do justice.

How about if judges follow the law and we let the legislators worry about making just laws? That is their job after all.

Man, after spending nearly eight years listening to liberals scream about separation of powers in relation to president Bush, one would hope that they would remember to apply the same concept to our black-robed overlords.
9.12.2008 2:38am