My my, turn around for a day or so and look what an interesting discussion we have - thanks, Gadarene, for the quote about poor old Douglas fighting the last war.
Sua, I still disagree with you about precedent, at least over socially controversial matters. I guess the distinction I would make would run along the lines of mala prohibita versus mala in se*. When courts are establishing rules because a rule is needed (but the content of the rule is less important), then precedent is both at its most necessary and most valuable. When, however, the courts inevitably are drawn into highly charged, moral discussions, “precedent” becomes a hypocritical exercise - particularly when it’s used to defend a newly-discovered right, which it seems all of the concurring Griswold justices well knew they were doing.
If we agree that the Constitution must “breathe” (which I think any 214-year-old document requires), then it must be able (block this metaphor!) both to inhale and to exhale. Sometimes the Court will find new rights - but other times it should be able to say “Ooops, that was a mistake” - even when the change of mind is simply the product of a change of heads dwelling thereon. The alternative (block this metaphor, too!) is a one-way ratchet, in which new rights can be discovered, but never undiscovered. With that, we’d never have got rid of Lochner.
Actually, I lied. The other “alternative” is for the court simply to throw up its hands. That’s the solution deduced from emarkp’s (and the unconfirmed-and-ever-more-bitter-by-the-minute) Bork’s criticisms. These criticisms are at best ahistoric. Within the Anglo-American tradition, judges have always made law. (Under the Common Law, judge-made law was really all that existed - statutes served to nip and tuck judicial decisions, rather than the other way 'round.) After the Revolutionary War there was a movement to limit these powers, but the lawyers and judges won. Part of the reason (besides the obvious one of Who’s Got the Power) stems from the practicalities of dealing with laws - they never envision all possible situations, and judges don’t have the luxury of sitting around waiting for legislatures to fill in the gaps. Not when there are live litigants right there in front of them. So that means judges do the best with what they’ve got in legislative history, and often what’s available is either (a) nothing at all, (b) quite incomplete, or © enormously self-serving. (Scalia’s become quite annoyed at recent statutes, with these congressional “reports” and “findings” that sometimes directly contradict the actual words of the statute they inform, and all designed to spin the Court.)
But what about original intent? This is the great Friend of Bork, et al. and at best it’s a red herring, raising more questions than it answers (indeed, there decent argument - from an article published roughly 1983, can’t find it online - arguing that the Founders didn’t intend for anyone to pay attention to their “original inten”). Whose intent? The Founders? The state conventions? What if you can’t really find very much? Etc. The enormous irony is that theorists like Scalia, while rejecting the legislative history of statutes written in 1990, is nevertheless willing to afford all deference to the scattered reports written by a very few observers of constitutional conventions taking place two centuries ago. And, as we all know, spin is a purely modern invention :rolleyes: - I can think of at least three-fifths of a reason why the Founders weren’t, perhaps, overly eager to have all of their deliberations recorded for posterity.
The great progenitor of “originalism” was Raoul Berger, of the University of Chicago. I read his work when I was in law school, and what struck me was his admission that the theory wasn’t particularly consistent or verifiable. Instead, the main argument in its favor, in his view, was that it would restrain judges that otherwise face no restraint. I sympathise with his concerns, but ultimately I think he and his followers (such as Bork) are trying to re-fight a battle lost by 1820. Judges do have enormous powers and they aren’t restrained except by political limitations. And that, I think, is as it should be, and we’d be better off simply acknowledging it, rather than cloaking power in the emperor’s new clothes of precedent or original intent.
*Mala prohibita roughly means “something that’s wrong because it’s prohibited,” whereas “mala in se” means “inherently wrong.” Traffic rules are the easiest example of the former: in the U.S., driving on the left side isn’t inherently wrong, it’s wrong because it’s prohibited - we need a rule, and we don’t care much about what the rule is. Murder, of course, is the ultimate mala in se. And yes, it often isn’t clear where one concept begins and the other ends, but it’s good enough for the purposes of this discussion, I think.
