Additional Assignment For Honors Class

In addition to the materials handed out by Dean Gloden, please read Zelman v. Simmons-Harris at this link.

Also be prepared to discuss all posts on this blog posted during February 2009 (just scroll down from here--the last post you are responsible for is called Religious Liberty: Behind the Veil of Ignorance).

Please feel free to post comments on any of the blog posts that follow.

Evolution or Creation

Now that Barack Obama has become the judicial-nominator-in-chief, we can expect to hear a lot more about the "living, breathing, evolving Constitution." Of course, the Constitution is not really alive. Nor does it breathe. But does it at least evolve? And if so, how so?

Some commentators reject an "original meaning" theory of interpreting the Constitution in favor of a theory that views the Constitution as a living, breathing, evolving organism. For example, Prof. Erwin Chemerinsky says that "nonoriginalists believe that the Constitution's meaning is not limited to what the framers intended; rather, the meaning and application of constitutional provisions should evolve by interpretation."

Is this really a theory of evolution? Or is it more honestly a theory of creation? How does the Constitution "evolve" into a new species in so brief a time? Surely, the sudden appearance of new constitutional rules in the fossil record is best explained by a theory of intelligent design, of Creation if you please, by shifting Supreme Court majorities. Thus, when Prof. Chemerinsky says that new constitutional rights "evolve by interpretation" what he means is these new constitutional species are called into being by judicial decisions (intelligent design) written by a Creator consisting of no fewer than 5 unelected lawyers serving lifetime appointments on the Supreme Court.

When the Court speaks of the Constitution evolving is this really an attempt to mask or conceal "what's really going on" as Marvin Gaye might have put it? Why doesn't the Court simply admit that it is making up new constitutional provisions when it calls into being some new rule never intended by the Framers?

Judge Robert Bork once made the following observation:

The hard fact is, however, that there are no guidelines outside the Constitution that can control a judge once he abandons the lawyer's task of interpretation. There may be a natural law, but we are not agreed upon what it is, and there is no such law that gives definite answers to a judge trying to decide a case....The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.

Some proponents of the "living" Constitution criticize originalists as supporting a "dead" Constitution. But Justice Antonin Scalia likes to respond by saying that originalists view the Constitution not as "dead" but rather as "enduring."

"The Constitution", says Scalia, "is not a living organism, it is a legal document. It says some things and doesn't say other things." Proponents of an evolving constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."

But isn't this view too inflexible, too resistant to change and reform? Again, consider what Justice Scalia has to say about this:

My Constitution...is a minimalist Constitution. It means what it meant when it was written.

But it is a flexible Constitution. In my Constitution, you want the death penalty, pass a law. You don't want the death penalty, pass a law the other way. How more flexible could you be?

You want a right to abortion? Adopt it the way most rights are adopted in a free society, pass a law. You don't want a right to an abortion? Pass a law the other way. You want a right to die? And so forth, right down the list of all of the social issues that are brought to the Supreme Court....

A Constitution is not for flexibility. A constitution is for rigidity. And those people who would insert one after another new right into the document are not eager to bring us flexibility. They are eager to have us do it their way from Coast to Coast without the possibility of democratic change.

What are your thoughts? Should Supreme Court Justices feel free to amend or change the written Constitution whenever they feel it needs to keep up with the times? Or, in a free society, does this power to change the law to reflect modern values belong to the people acting through the democratic process?

Do you agree with Justice Scalia that the "Living Constitution" is about rigidity, not flexibility? Do you understand the point Justice Scalia was making?

For example, when the Supreme Court decides to create a new Constitutional right, such as the right to abortion or to same-sex marriage, how is this "rigid" rather than "flexible?"