A better word for living document

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Good for Arlen Specter.

The Senate Judiciary Committee chairman warned Supreme Court nominee John G. Roberts Jr. yesterday to expect tough questions about the court’s “judicial activism” and lack of respect for Congress.

The comments mark the second time this month that Sen. Arlen Specter (R-Pa.) has signaled plans to use Roberts’s confirmation hearing as a forum for sharply criticizing what Specter describes as the high court’s tendency to denigrate Congress’s thoroughness and wisdom in passing various laws. Specter’s questions could present Roberts with the difficult choice of disagreeing with the committee chairman or rebuking justices he hopes will soon be his colleagues. The committee’s hearing begins Sept. 6.

…Specter particularly criticized Chief Justice William H. Rehnquist’s writings in a 2000 decision, United States v. Morrison, involving the Violence Against Women Act. He told Roberts he will ask whether he agrees that Rehnquist’s reasoning is an example “of manufactured rationales used by the Supreme Court to exercise the role of super legislature.” Specter’s letter did not address the courts’ rulings so much as justices’ comments that he says show a disrespect for Congress and its diligence in making laws. He praised a dissenting opinion in a 2001 disabilities case that said courts should not “sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.”

On a side note, Kevin Drum writes an excellent post today on how a theory as ridiculous as originalism can gain such broad acceptance. He asks at the end of the post,

Regardless of originalism’s substantive merits, you can’t fight something with nothing, which makes Lithwick’s question a good one: why is it that liberals seem to have given up on formulating a simple and compelling alternative?

Liberals have formulated a simple and compelling alternative–viewing the Constitution as a living document that evolves over time in accordance with precedent–but we’ve failed to package and market it as well as conservatives. The difficulty in mass producing legal theory is compounded by a press corps that seems unwilling to abandon its comfortable cliches. They’ll spill plenty of ink on whether Roe v. Wade is binding and whether it’s a valid decision–which is essentially a critique of liberal judicial theory by proxy, unfair though that may be–but you don’t even get a passing reference to originalism or conservative judicial ideology in the article above, for example. In fact, all we know from the article is that Rehnquist wrote the majority opinion in one of the cases mentioned in the letter. People don’t like talking about the justices as conservative and liberal, so refer to them as originalists!

One problem is, in public discourse right now, there’s no Roe to serve as a ligthening rod for criticism of originalism. Sure, liberals are partially to blame, I guess, for not working their base into a lather about a Supreme Court opinion, but it wouldn’t hurt to have a few articles (that aren’t written by the brilliant Dahlia Lithwick) that associate bad originalist opinions with originalism every once in a while.

I may write more on this later, because I’ve briefly made just one of many valid points on this topic. It’s an important conversation, and I hope others will take Kevin’s bait.

A final note, the American Constitution Society has done amazing work recently, both in terms of bringing together lawyers to formulate a clear liberal judicial philosophy, and in terms of spreading the word about it. I hope anyone who agrees with Kevin’s criticism will check out their website or their blog.

**Disclaimer: I’m an active member of the ACS chapter at Michigan.**


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