Last Thought on the Hearings

Memo to those who missed this week’s Sotomayor hearings: Imagine a cocktail conversation between Hume and Aquinas, or Karl Marx and Adam Smith, or maybe even Jack Webb and Cheech Marin and you get some idea of what this rigmarole sounded like: two people (Sotomayor and her G.O.P. interlocutors) having what appeared to be a conversation, but was in fact a series of monologues by people who have such radically different philosophies that there is only the narrowest conversational opening between full-blown debate and mannerly chit chat. Some tried, but they all missed the opportunity and that is why the hearings were such a snoozer. Every party to the hearings wanted to avoid a vigorous open debate--the G.O.P. because it did not want to be remembered for its shabby treatment of the country’s first Latina justice, and Judge Sotomayor because she wanted to quietly get the heck out of there without doing any harm to the all but certain prospect of her confirmation. And so it is that the country missed another chance to have a desperately needed, meaningful exchange about our constitutional system.

Such a debate would have been really interesting. The G.O.P. senators all roughly subscribe to one of the variant forms of “Originalism,” the doctrine that the Constitution should be interpreted according to the intent or meaning of the words, as they would have been understood at the time of their adoption. Judge Sotomayor and most Democrats hold fast to "Living Constitutionalism," or as she might prefer to call it, "Constitutional Fidelity," the doctrine that the meaning of the Constitution is dynamic and that contemporaneous understandings are therefore relevant, if not dispositive. Adherents to both theories crudely characterize their opponents, proffering only the most facile interpretations of the others’ ideas. The living constitutionalists say that originalists think the constitution is dead. The originalists charge the living constitutionalists with thinking that the constitution should mean whatever we want it to mean.  Both characterizations are caricatures, of course. Yet the nugget of truth in both is that the two views, like epistemological realism and idealism, or Capitalism and Marxism, or law-and-order Republicanism and pothead hedonism, are nearly irreconcilable. They are radically different theories of law, with radically different starting points that produce radically different outcomes, not on every issue, not even on most issues, but certainly on the biggest issues.


I really wish someone had just said that out loud. This might have provided an opportunity for the U.S. Senate to have a real debate about these competing legal philosophies. It would not have changed the outcome of the Sotomayor nomination, but it might have provided an education for a public that is largely ignorant of the fact that the ultimate outcome of the struggle between these two philosophical camps will determine not only how the Constitution is interpreted but also how it is changed and applied in real life. What we got instead was a lot of polite posturing and legalese. That's too bad. How and whether we change the constitution is the most important decision we can make as citizens, much more so than choosing a president. That's because in our ingenious system, it is the constitution, not the president or anyone else for that matter, that is sovereign.

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8 years 10 months ago
My thoughts on originalism is not that it is based on the intent of the founders or the authors of the later amendments - some of whom would be quite happy with an expansive view of the 14th Amendment, since it was written to be expansive - but rather on a rather cramped High School American history understanding of what the founders meant.  I challenge anyone who calls himself an originalist to read Garrett Epps' post-civil war tome Democracy Reborn or Gary Wills inciteful A Necessary Evil where both authors lay bare many of the claims of the originalists.  Those who fail to learn history are doomed to be ruled by those who would use it for their own ends, as the originalists have tried to do.


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