Skip to main content

View Diary: On Constitutional Interpretation: Originalism v. A Living Constitution? (286 comments)

Comment Preferences

  •  Don't knock legislative deferral (none)
    Marshall himself deferred to the legislature a number of times, specifically in McCulloch v. Maryland, when he said that "political questions" (i.e.: issues in which there's a legitimate difference of opinion) should be left to the legislature.  There is a role to be played both by the legislature and the executive in interpreting the constitution--the veto, for example, was used ONLY ON CONSTITUTIONAL GROUNDS for its first several decades, and a shift to "I veto because I don't like the law" is a post-Civil War change.

    Of course, notice that in McCulloch, Marshall let the feds win over the states, something he believed in anyway.  And that in Marbury, he interpreted the law against his political enemies (Jefferson and Madison) and then intentionally said he didn't have jurisdiction to DO anything about it because he was afraid of getting impeached or ignored.

    Perfect examples of judicial deferral include the Voting Rights Act of 1965 and most of the New Deal, both of  which involve cases where the courts said "hey, we should really let an elected legislature have some say over how broad its economic regulating powers should be.  if the people don't like it, they can vote the clowns out of office".  Obviously I wish there had been better 14th Amendment caselaw to let the Voting Rights Act be about equal protection, but letting that slide on grounds of deferral seems perfectly reasonable to me given the circumstances.

    Scalia's wrong about plenty, but I don't think he's wrong about that.  Rehnquist, for example, has this hyper-judicial review-centric philosophy that lets him strike down all kinds of things for federalism's sake that I just don't think actually fit the intent of the Constitution.  He strikes down more laws now than the Warren Court EVER did. Every federal official has to make an oath to uphold and defend the Constitution for a reason, and if they didn't have a role to play, it would only be the Court that had to make that oath.

    •  Deferral to whom? (none)
      Three different issues here:

      • It's one thing for the federal courts to defer to the congress or the president on certain federal questions. Certainly on non-constitutional issues, they do it often and it is accepted practice. (E.g., the court's unanimous decision in Chevron v. NRDC.)

      • But it is another thing to defer to the president or congress on interpretation of the Constitution. Few people in the legal community would agree with that notion, and none of the other justices agreed with Scalia's "legislative authority necessarily predominates" theory in Morrison v. Olson.  For example: Suppose the congress and president had decided that Brown v. Board of Education was wrongly decided, and passed a law expressing their own constitutional interpretation, requiring that schools be "separate but equal" and permitting them to be segregated by race. Few if any serious people today would agree that congress and the president should be able to trump the court's interpretation of the Constitution there.

      • And it's still another thing to go even farther, as Scalia has (see his Cruzan dissent, which I quoted above), and argue that federal courts should defer to state legislatures on questions of federal constitutional law.  If that idea was taken far enough, you'd have Scalia overruling McCullough v. Maryland as well as Marbury v. Madison, and you'd have a Supreme Court with vastly shrunken authority.

      This is how liberty dies... with thunderous applause.

      by socal on Sat Jul 23, 2005 at 03:14:49 PM PDT

      [ Parent ]

    •  Actually... (none)

      Your post brings up a nice point.  The Dems need to fix their broken Party and actually win a few elections (THAT will happen) and then impeach Scalia (and Thomas).  Nail them for not carrying out their Constitutional duties as a separate BUT EQUAL branch of government and as interpreters of what is or is not Constitutional (such as bowing out when the legislature has passed a law that fits with their personal social mores). Surely these are grounds for impeachment?  A form of dereliction of duty?  Also, with Roberts likely to join and be a mirror of Scalia/Thomas, there will no doubt be a number of erroneous ruling so egregious as to warrant impeachment come 2008 (if not 2006).

Subscribe or Donate to support Daily Kos.

  • Recommended (130)
  • Community (63)
  • Bernie Sanders (44)
  • Elections (36)
  • Hillary Clinton (28)
  • Culture (28)
  • 2016 (27)
  • Climate Change (27)
  • Civil Rights (23)
  • Science (23)
  • Environment (23)
  • Spam (21)
  • Law (19)
  • Labor (18)
  • Media (18)
  • Republicans (18)
  • Barack Obama (17)
  • Trans-Pacific Partnership (15)
  • White House (14)
  • International (13)
  • Click here for the mobile view of the site