Well . . . THAT’S WHAT BERKELEY LAW PROFESSION JOHN YOO SAYS.
It’s not clear what he means.
His piece offers a good summary of Rehnquist’s time on the Court and the impact he made, as well as the Court’s recent spate of stupid decisions (Kelo, Raich, McCreary), in which Rehnquist dissented.
But the central theme of his analysis–that Rehnquist’s "revolution" is over–is unclear. It’s true that Rehnquist was a pivotal figure in the reorientation of the Court from the horrendous Warren and Burger days, when judicial activism undertook a massive, anti-democratic social engineering project on American society that is still underway, but Rehnquist was not the ideological leader of the return to originalism. Scalia and especially Thomas are much more pure in their originalism than Rehnquist was.
It’s hard to say in what sense the attempt to shift the Court back to orginalism (which Yoo barely touches on) is a revolution that can be called Rehnquist’s, except in the sense that he was on the Court early, was a substantial supporter of the effort, and happened to be chief justice for much of the time. But he wasn’t its ideological leader (Scalia), its strongest advocate (Thomas), or the man who put new originalists on the Court (Reagan and Bush 41).
If there was a Rehnquist revolution, it could be said to be over in the sense that Rehnquist himself is no longer with us, but Yoo’s list of recent stupid decisions is far from evidence that the judicial philosophy of originalism is receding into the background.
The recent stupid decisions were 5-4’s, which means that with the replacement of Rehnquist and O’Connor (who often capriciously voted with the anti-originalist side), these decisions and many others like them might flip to 5-4 decisions in favor of the originalist position.
They would have come out on the originalist side to begin with if Clinton hadn’t had the chance to appoint two anti-originalists to the Court.
With Bush 43 now getting to put two on the Court, we may not be facing the end of the Rehnquist revolution so much as the end of the Clinton hiatus.
I’n not sure there was a “revolution”. And Rehnquist wasn’t a leader as such, at least not according to Alan Dershowitz.
“Dershowitz: Rehnquist Was ‘a Republican Thug’ “as reported in today’s Best of the Web.
Nothing would have horrified the Founding Fathers more than to have thought that their opinions would be enshrined by “originalists”: they believed in a world in continuous development and they confessed their own fallibility.
For those who would establish a kind of American patristics, I just ask them to read some history.
Of course they believed in a world of continuous development and they confessed their own fallibility. That’s why they made a process for amending the constitution. I think the word “originalist” is the wrong word to use to describe someone who is a “literalist.” I surely don’t want to revert to the constition as it originally was written in 1787. I don’t think there is any so called “originalist” who believes that the constitution is an unchangeable document set in stone. What they do believe is that legislating from the bench using extremely liberal interpretations is wrong and that it sidesteps the amendment process.
Whether or not the Founding Fathers thought that their opinions were set in stone, it remains that the law of God is unchanging. Basic human rights — such as the rights to “life, liberty, and the pursuit of happiness” — are not subject to the “continuous development” mentioned above, in the sense that that such “development” is used to justify abortion, gay marriage, etc.(/I>
Human nature doesn’t change simply because of historical progression. The idea that it did is what Chesterton referred to as “chronological snobbery.”
What we find in the Constitution is the best enshrinement thus far in political history of those unchanging human rights.
Jimmy, I think Yoo is trying to suggest that Rehnquist’s drive to revive federalism was losing steam. The decisions in Lawrence and Kelo do suggest he’s right – but that shouldn’t be any surprise, considering both O’Connor and Kennedy were/are becoming ever more fond of the praise of liberal editorial pages as they ripen on the bench. But you’re right that Rehnquist wasn’t the leader of the originalism movement during his tenure – as Chief Justice, he was able to lead the court to select cases promoting fidelity to federalism. This isn’t so much a question of judicial philosophy as much a question of case selection, leading the court to devolve power out to state and local governments. It will be interesting to see if Roberts tries to continue Rehnquist’s federalist campaign, or if he adopts a more originalist agenda.
As for those who misunderstand originalism, it’s the school of legal interpretation that holds that law should be adjudicated according to the intent of the authors of the statute or constitutional amendment, or (as far as interpreting the Constitution itself) ultimately, the Founders in Philadelphia. That’s not to say that everything should revert to what Hamilton and Madison thought in 1787, but (as an example) Plessy was contrary to the intent of the 14th Amendment.
By definition, an originalist does not interpret strictly based simply on the “plain reading of the text”, because even two reasonable people can define specific words with slightly different connotations. Better to refer to the debates, discussions, and writings of those who drafted and passed the law and all subsequent relevant laws and amendments. So, as another example, if someone tries to suggest that the 14th Amendment doesn’t apply to a woman’s right to equal protection under the law, the Court would have to determine if the 19th Amendment and subsequent legislation clearly intended discrimination by sex to be permitted by the provisions of 14th.
Both originalism and strict construction oppose judicial activism, which is the idea that the Constitution can and should be interpreted according to the standards of the day – be that liberal or conservative.
Hey! Everything’s in italics again!
Why does that keep happening in these comboxes?
No problem, Jimmy. The italics are off now. No need to thank me.
Chris says: Jimmy, I think Yoo is trying to suggest that Rehnquist’s drive to revive federalism was losing steam. The decisions in Lawrence and Kelo do suggest he’s right – but that shouldn’t be any surprise, considering both O’Connor and Kennedy were/are becoming ever more fond of the praise of liberal editorial pages as they ripen on the bench.–Wondertwin Italics, DE-activate! (See how easy it is, people?)
Anyway, Chris, in the case of Kelo, it was O’Connor who wrote the DISSENTING opinion. O’Connor was not, by any stretch, my favorite jurist. However, she could be useful when decisions like Kelo came up.
Chris also says, As for those who misunderstand originalism, it’s the school of legal interpretation that holds that law should be adjudicated according to the intent of the authors of the statute or constitutional amendment, or (as far as interpreting the Constitution itself) ultimately, the Founders in Philadelphia.
Actually, there are at least three judicial philosophies that fall under the category of “Originalism” (or “judicial conservatism”).
1) “Original Intent” This philosopy WOULD go back among documents to find out, just exactly, how far Hamilton would have wanted to pursue charges of treason when he wrote Federalist, no. 84. Does Jane Fonda apply? The only way to know is to read Hamilton’s mind!
2) “Literalism,” which takes everything . . . literally. This philosophy DOES argue that the freedom of “speech” and “press” guarenteed in the First Amendment does not apply to, say, blogging since bloggers are neither speaking nor printing an article on a press.
3) Textualism, which is the excellent judicial philosophy held by My Boy, Scalia. This eminantly workable philosophy argues that laws are written in words, and that those words are the basis of what the law actually means.
Bear says, Whether or not the Founding Fathers thought that their opinions were set in stone, it remains that the law of God is unchanging.
That is true, Bear. However, that is not a description of a jurist’s job. His job is to look at the relevant laws and facts admitted before him and decide whether “Plaintiff” is or is not accorded the privledges of “X,” which “Plaintiff” is making a suit for. If the law says,”Plaintiff gets X,” then that’s the way a judge is bound to rule, regardless of circumstances.
ALL that a secular judge can do is look at the human law and consider the accepted facts submitted by humans. To ask a judge to consider if the law itself coincides with the Laws of God is–at worst–and elevation of a secular government official to the ranks of Priesthood, and–at best–an invitation for the judge to walk over the Separation of Powers guarenteed in the Constitution and start usurping the Legislative and/or Executive Branchs’ authority in addition to his Judicial powers.
Even in the best-case scenario, having secular judges interperet the Will of God is a dangerous thing to do.
Even in the best-case scenario, having secular judges interperet the Will of God is a dangerous thing to do.
Yes, Ry, I absolutely agree. I don’t think it’s the judge’s job as judge to evaluate conformance with God’s law.
I was just pointing out that the Constitution was an attempt to ensure the protection of what the Founders viewed as basic, God-given rights. Those rights don’t come and go with the “continuous development” mentioned by Jim.
Jimmy, you posted that Justice O’Connor (… often capriciously voted with the anti-originalist side). Capriciosly?????? Come now.
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