Jack asks me what I think of his top ten pieces of advice for judges. Well, let’s take a look.
1. Be faithful to the original meaning of the text of the Constitution and the principles that underlie it.
We’re not off to a good start. Living constitutionalism requires that our system of judicial review be (or be perceived as) legitimate, as Jack has persuasively argued. Legitimacy means that the people, or at least the people who exercise political power of any sort, believe that judicial review serves their interests, rightly understood. I find it hard to believe that faithfulness to the original meaning of the text of the Constitution will produce legitimacy. (In public debate, it is hardly an exaggeration to say that people claim as the original meaning whatever they think serves their interests today.) After all, people don’t care about the original meaning of the Constitution; they don’t even know what it is. What they care about is good government delivering needed public services. Faithfulness to the original meaning is consistent with good government only if either (1) the founders somehow anticipated public needs in the world ca. 2008 and managed to design government institutions that would be as good for 2008 as they were in 1789; or (2) they produced the optimal amendment process, allowing the people to change the government whenever changing circumstances demanded new government structures (almost always!). If there is any consensus in constitutional law, it is that the amendment process is too cumbersome and slow. That is why the justices have had to update the Constitution through aggressive interpretation. Fortunately, the founders, in their wisdom, used language of almost infinite malleability, so that (the 34 year old president and the three-house Congress aside) we can almost always claim that whatever we want is consistent with the Constitution, or at least the principles (infinitely malleable times two) that underlie it.
2. Make legal arguments using the modalities of text, history, structure, prudence, precedent and national ethos .
The major alternative to modern-style originalism, which requires justices to overturn precedents in order to return us to the world of 1789, is to respect those precedents, as much as possible, and exercise judicial restraint (underenforcement of constitutional norms), so that the political branches can update the Constitution without judicial interference. Constitutional text will be a starting point when no precedents exist, but that is increasingly rare, and judicial restraint will limit the harm done in those circumstances.
3. Y ou are required to decide consistent with the text’s original meaning but you are not bound by the original expected application of the text, although that may be useful evidence of original meaning or of the principles underlying the text.
One of Jack’s contributions to the debate, and I hesitate to criticize it before sitting down and reading his work on this topic (it’s on my desk, I swear!). For now, I will say that Jack’s watered-down originalism, as I understand it, partly but does not fully meet my objections to originalism, as described in #1. Jack’s is a Goldilocks view that legitimacy requires avoidance of two extremes: slavish devotion to the document (“original expected application”) and indifference to it. If I am right that people today don’t care much about the original document (whose major purposes, having to do with slavery and agriculture and so forth, have little bearing on the optimal structure of government today), then there is no need to make obeisance by looking for justifications in its “principles.”
4. Apply existing precedents as long as they reasonably implement text and principle, even if they are imperfect articulations of text and principle and even if you would have done things differently if you were writing on a clean slate.
See my comments on #1 and #2.
5. Employ humility and charity in assessing constitutional interpretations of the past. Even if you think that previous jurists did not correctly implement text and principle, try to understand how their interpretations, read in their best light, might be faithful to the Constitution’s text and principles.