A constitutional debate
Posted by Mitch Kokai at 09:56 AM
If U.S. Supreme Court Associate Justice Antonin Scalia's recent North Carolina speech piqued your interest in "originalism," you'll likely enjoy a new book on the topic.
Steven Calabresi's Originalism: A Quarter Century of Debate (Regnery) combines speeches, panel discussions, and debates about the proper role of the written Constitution in constitutional law.
Among the more forceful advocates quoted in the volume is University of Texas law professor Lino Graglia, who discussed the idea of "unenumerated constitutional rights" during a Federalist Society panel discussion in 2005:
The argument that the Ninth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment authorizes judges to enforce unenumerated rights is academic lawyerism at its worst. Everyone except constitutional law scholars understands that such authority would do nothing but make the judges the final lawmakers on any issue they choose to remove from the ordinary political process and assign to themselves for decision. It is not politically possible to argue openly in this country that rule by majority vote of nine electorally unaccountable lawyers in robes is an improvement on the system of government created by the Constitution; yet that, incredibly enough, is the system we now have. It is a system similar to Iran's. There, too, people get to vote and elect legislators, and the legislators pass laws. But the laws are permitted to operate only if not disapproved of by the Grand Council of Ayatollahs. Here the Supreme Court performs that function.
Though the tenor of the book clearly favors originalism, it is no one-sided tract. Intelligent critics of originalism — on the Left and Right — are quoted at length.
But former U.S. Solicitor General Theodore Olsen sums up the importance of the debate:
[T]he real power and energy behind originalism is not the desire to achieve any particular political outcome or result. What drives originalists is nothing more, and nothing less, than the noble pursuit of a coherent and principled approach to interpreting and implementing the various provisions of our written Constitution.
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