Democrats & Liberals Archives

Interpreting, Legislating & Politicizing

“Conservative judges interpret the constitution; liberal judge legislate from the bench.” How many times have we heard this or a variation of this mantra? This is why, Bush says, he prefers Scalia, an originalist. This is the reason he says he picked John Roberts for the U.S. Supreme Court. The truth is that all justices interpret the constitution - how can it be otherwise? But conservative judges interpret it restrictively and liberal judges interpret it expansively. “Conservatives interpret, liberals legislate” is purely a political slogan of Republicans.

The most famous advocate of originalism, the idea that the Constitution should be interpreted exactly according to the original intention of the founders, is Justice Antonin Scalia. Scalia sneers at liberal justices who believe in a "living" Constitution. Apparently he prefers a "dead" one.

I am not schooled in the law. Neither am I as brilliant as Scalia. But I am puzzled how a guy living in the 21st century can know the intentions of someone who lived in 18th century. The Constitution is all we have and nothing was said about intentions. And maybe the founders did not care for their original intentions to be followed. As Cass Sunstein writes in "Fighting for the Supreme Court" in the September, 2005 issue of Harper's Magazine:

"It is a disputed historical question whether those who ratified the Constitution wanted judges to be bound by the original understanding. The Constitution uses broad phrases, such as 'freedom of speech' and 'equal protection of the laws' and 'due process of law'; it does not include the particular views of those who ratified it. Maybe the original understanding was that the original understanding was not binding. Maybe the ratifiers believed that the Constitution set out general principles that might change over time."

It turns out, then, that all justices interpret the Constitution. Conservatives interpret the Constitution conservatively, that is, restrictively, and thus are usually against what they call "new rights." Liberals interpret the Constitution liberally, that is, expansively, and thus are usually for the expansion of rights. To the conservative it may appear that the liberal has exceeded interpretation and made law. However, it often appears to liberals that conservatives have exceeded interpretation and made law.

Which type of interpretation is better? Here's what Sunstein says originalists Scalia and Thomas would like to do:

"They would like to interpret the Constitution to strike down affirmative action programs, gun-control legislation, and restrictions on commercial advertising; they also seek to impose severe restrictions on Congress's powers and to invalidate campaign-finance regulations, environmental regulations, and much else. Justice Thomas would allow states to establish official religions. The logic of the new approach would even permit the federal government to discriminate on the basis of race and sex."

Is Roberts an originalist? I'd like to know. I'd like to see the administration dispense all information Senators are asking for. This is an extremely important issue.

"Conservatives interpret, liberals legislate" is Republican propaganda. The question is not whether we need judges to interpret or legislate. All judges interpret the Constitution the way they see it. The issue is whether we want a justice who would tend to restrict our rights or one who would tend to expand them. I vote for liberal judges. After all isn't this a liberal democracy?

Posted by Paul Siegel at August 26, 2005 3:36 PM