In the current issue of the Virginia Lawyer, Justice D. Arthur Kelsey (Supreme Court of Virginia): Bracton’s Warning and Hamilton’s Reassurance. From the introduction:
In honor of our Constitution, I would like to discuss a jurisprudential debate that began in 13th-century England and has continued to this day. The debate centers on a single question: What is a judge’s role in the interpretation of our Constitution?
Thomas Jefferson once famously said: “Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.” What did Jefferson mean by that? How could judges construe the Constitution in a way that renders it a blank piece of paper?
And from later on:
[The Historical Tradition Model] requires the judge to look at the text of the Constitution, and if it is unclear, the judge tries to discover not what the text ought to mean but what it did mean to those who wrote the words and, more importantly, to those who voted for those words to become law. In a democratic republic, words become law only when the true sovereign elevates them to that status. The first line of the Constitution declares that “We the People of the United States, in Order to form a more perfect Union,” created the federal government and granted it limited delegable powers. The creator is always greater than the creation. “We the People” are sovereign — not the government.
In the Historical Tradition Model, law retains its democratic legitimacy only when judges interpret the words as they were understood at the moment of their elevation by the collective sovereign, “We the People.” The constitutional text, James Madison explained, should be interpreted as “it had been understood by its friends and its foes” at the time of its adoption and ratification because “[i]n that sense alone it is the legitimate Constitution.”
In Federalist No. 40, Madison reinforced this point by reminding us that the work of the Framers at the Philadelphia Constitutional Convention was “merely advisory and recommendatory” because they were “mere scriveners or attorneys appointed to draw up an instrument; the instrument’s true makers were the people of the United States assembled in state conventions.” Only when the people adopted and ratified the Constitution did the words become law.
Whatever you think of the Historical Tradition Model, let me remind you of Winston Churchill’s famous quip that “democracy is the worst form of Government except all those other forms that have been tried from time to time.” A similar sentiment, I believe, applies here to lift the Historical Tradition Model above its three competitors [Ed.: previously discussed as the "Oracle Model", the "Platonic Guardian Model" and the "Popular Culture Model."] Each of them, to one degree or another, involves interpolating meaning into a legal text instead of interpreting meaning from the text. As a result, the first three models simply liberate judges to construe an ambiguous constitutional text so that it means what it ought to mean, what it should mean, what it would mean if they — the judges — had written it.
How is it possible to follow any of these other three models without, consciously or not, injecting politics into law? No matter which way you answer that, this much is sure: Many Americans today are deeply suspicious about the role of politics and its influence on the courts. Sometimes this suspicion is terribly unfair; at other times, it is entirely understandable.
Posted at 6:03 AM