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| Looney -- CTPost |
“We are all originalists now” – Associate Justice of the Supreme Court Elena Kagan
Originalism, as understood by pretty much everyone but Connecticut Senate
Pro Tem Martin Looney, is not a high court finding. It is a common method of
Constitutional interpretation that took flight under the wings of Supreme Court
Justice Antonin
Scalia.
The opposite of originalism is free range constitutional interpretation:
The Constitution, infinitely adjustable by the high court, means whatever the
high court says it means, however far the court strays from a rational
understanding of clear constitutional propositions. This prescription allows
the high court to wander outside the boundaries of constitutional language to
decide whether laws passed by state legislatures do or do not pass
constitutional muster.
The originalist mode of interpretation appears to have confused Looney.
But his confusion, probably self-induced, lies to his advantage, almost always
because Looney is one of the two gatekeepers of the legislation that passed
through the General Assembly, the other gatekeeper being Speaker of the State
House Matt Ritter.
Looney’s proposed bill, SB 181, would, we are told in a Hartford Courant story: “codify
the rulings of four U.S. Supreme Court cases.” The high court apparently has
decided the cases cited in Looney’s bill to the satisfaction of Looney. He
simply wishes to preserve the court decisions in statute law – just in case the
court should decide in the future to reverse its decision because the court, on
review, holds that a previous decision was poorly decided and should for that
reason be reversed.
Looney’s quarrel with the U.S. Supreme Court is that it has become
“overtly politicized. What we have on the Supreme Court now is a majority of
people whose primary approach is political, not principled. Rather than being
straight forward and running for office, they’ve sought to accomplish political
objectives by being appointed to the U.S. Supreme Court, rather than running
for the House or the U.S. Senate. And that really is fundamentally dangerous.”
So far, originalists, the current crop of high court justices,
conservatives, liberals well versed in the constitutional debates that preceded
the adoption of the U.S. Constitution, and a handful of non-postmodern media
adepts, would heartily agree with Looney. The doctrine of the separation of
powers means, if it means anything at all, that the three branches of government
should stay in their own constitutional lanes: Legislatures should write the
laws; the executive department should execute the laws; and the high court
should strike down laws that are clearly unconstitutional. All these are
constitutional givens that arise from the frame of government to which the
authors of the U.S. Constitution pledged their lives, fortunes and sacred
honor.
On June 21, 1788,
New Hampshire became the critical ninth state to ratify the Constitution and
the deed, honored ever since by all office holders who pledge: “I, (name), do
solemnly swear (or affirm) that I will support and defend the Constitution of
the United States against all enemies, foreign and domestic; that I will bear
true faith and allegiance to the same; that I take this obligation freely,
without any mental reservation or purpose of evasion; and that I will well and
faithfully discharge the duties of the office on which I am about to enter. So
help me God.”
William Dunlop, a
Quinnipiac law professor, fairly described the differences between originalists
and free range interperatists, or living constitutionalists, in the story cited
above as follows: “…originalism argues that justices should interpret the
Constitution as its authors intended when it was written. Living
constitutionalists view the Constitution as an evolving document that justices
should interpret in the context of the current times.”
These differences
open wide the door to the following question: Which interpretive method is more
likely to result in firm and just Supreme Court decisions? Constitutional
interpretation that does not stray from the historic meaning of constitutional
language and, at the same time, assigns to legislators rather than justices the
authoritative promulgation of the laws would seem to be far less ambiguous and
variable than judgments rooted infirmly in the changeable current times.
It should be the
province of legislatures to adapt the laws to changing circumstances, after
which the courts should decide whether the changing law aligns with the
Constitution. That is why President Barack Obama nominee to the high court, Associate
Justice Kagan, throwing in the towel on free rage constitutional interpretation
said, “We are all originalists now.” Ruth Bader Ginsberg, who also claimed the
mantle of originalism in 2011, agreed.
Ginsberg and Kagan, both
non-ideologues, understood that the U.S. Constitution, a series of intelligible
propositions, cannot, like a play by Shakespeare, be properly interpreted
without constant reference to the Elizabethan Period and Shakespeare.
Or, to put the matter
humorously, you cannot deduce Hamlet from mutton chops.
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