The Constitutional Debate

By Shiffman, Stuart | Judicature, May/June 2006 | Go to article overview

The Constitutional Debate


Shiffman, Stuart, Judicature


The constitutional debate A Matter of Interpretation: Federal Courts and the Law, by Antonin Scalia. Princeton University Press. 1997. 176 pages. $17.95 (paper).

Active Liberty: Interpreting Our Democratic Constitution, by Stephen Breyer. Alfred A. Knopf. 2005. 176 pages. $21.

Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, by Cass Sunstein. Basic Books. 2005. 284 pages. $26.

As citizens become increasingly concerned about the role the courts play in their daily lives, an argument that has flourished in our nation for more than 200 years seems to be gaining importance in the national psyche. The debate surrounding constitutional interpretation has been advanced to the front burner of public discussion by important events in the judicial life of our nation.

Last year saw two vacancies on the Supreme Court and the concomitant debate over what type of justice should be appointed to the Court. The nomination of John Roberts began the debate, but his ultimate confirmation as chief justice, succeeding the conservative William Rehnquist, truncated that discussion. A replacement for the late chief justice, who shared Roberts' conservative legal philosophy, did not tip the tenuous balance of the Supreme Court and therefore the Senate debate over confirmation was stifled. The nomination of Joseph Alito, a man whose legal philosophy mirrors that of the Court's most conservative jurist, Antonin Scalia, brought the debate to full boil because Alito would replace Justice Sandra Day O'Connor and tip the balance of the Supreme Court in a far more conservative direction.

More important than the personnel decisions surrounding the Court are the legal thunder clouds that seem to be gathering on the horizon brought about by the war on terrorism. In 2005, the Supreme Court and lower federal courts struggled with the dilemma brought on by the war on terrorism and the treatment of suspected terrorists both in courts, military facilities, and during investigations of terrorist activities. The disclosure that the President authorized surveillance and investigations that went beyond legislative and judicial approval raised serious and significant questions of constitutional magnitude. Debate on those questions centers on constitutional interpretation and what our founding fathers bequeathed to America in the Constitution.

Supreme Court justices contribute to this national debate by their written opinions. On occasion they may also offer a broader view of their philosophy. In 1997, Justice Scalia, a socalled "originalist," presented his position in A Matter of Interpretation. The book is based on lectures he delivered at Princeton in 1995 as part of the Tanner Lecture on Human Values. Scalia concluded that, "By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all." Fidelity to the Constitution's original meaning is the cornerstone of Scalia's jurisprudence.

Justice Stephen Breyer, who sits both physically and philosophically to the left of Justice Scalia, presented a very different view of constitutional interpretation in his Tanner Lecture. Active Liberty: Interpreting Our Democratic Constitution is Breyer's book based upon his lectures. In contrast to the originalist position of Scalia, Breyer advocates that the Constitution be interpreted in a manner that recognizes the problems of our contemporary world. "Since law is connected to life, judges in applying a text in light of its purpose should look to consequences, including 'contemporary conditions, social, industrial, and political of the community to be affected."' Thus the philosophical battle lines are drawn and the constitutional debate is joined.

A Matter of Interpretation

For his part, Justice Scalia fears that the common-law process of judging has resulted in a judicial mind set that seeks the most desirable resolution in individual cases rather than a consistent application of legal principles to an individual case. …

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