Texas Plan for Convention of the States

Here is a copy of Gov. Abbott's announcement of the "Texas Plan" for amending the Constitution via a Convention of the States (link):

Governor Greg Abbott today delivered the keynote address at the Texas Public Policy Foundation’s Annual Policy Orientation where he unveiled his Texas Plan to restore the Rule of Law and return the Constitution to its intended purpose. In his plan, Governor Abbott offers nine constitutional amendments to rein in the federal government and restore the balance of power between the States and the United States. The Governor proposes achieving the constitutional amendments through a Convention Of States.
“The increasingly frequent departures from Constitutional principles are destroying the Rule of Law foundation on which this country was built,” said Governor Abbott. “We are succumbing to the caprice of man that our Founders fought to escape. The cure to these problems will not come from Washington D.C. Instead, the states must lead the way. To do that I am adding another item to the agenda next session. I want legislation authorizing Texas to join other states in calling for a Convention of States to fix the cracks in our Constitution.”
Governor Abbott went on to explain that dysfunction in Washington, D.C. stems largely from the federal government’s refusal to follow the Constitution. Congress routinely violates its enumerated powers, while taxing and spending its way from one financial crisis to another. The President exceeds his executive powers to impose heavy-handed regulations. And the Supreme Court imposes its policy views under the guise of judicial interpretation. Governor Abbott urged action by Texas – and other states – to restore the Rule of Law in America.
Governor Abbott offered the following constitutional amendments:

1. Prohibit Congress from regulating activity that occurs wholly within one State.
2. Require Congress to balance its budget.
3. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
4. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
5. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
6. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
7. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
8. Give state officials the power to sue in federal court when federal officials overstep their bounds.
9. Allow a two-thirds majority of the States to override a federal law or regulation.

To view Governor Abbott's full plan, click here.

Judicial Review and the Rule of Law

What is the Rule of Law?

Are the decrees of an unelected Ruler, such as a King or an Emperor or a Dictator part of the Rule of Law?

The Rule of Law, of course, “is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials.”

“Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy… dictatorship, or oligarchy where the rulers are held above the law.” [Wikipedia]  

It is the difference between Lex Rex (the law is king) and Rex Lex (the king is law). In other words, the Rule of Law affirms “the law’s supremacy…in contradistinction to the rule of man.”

[The Rule of Law “avers that no man is above the law and the law’s supremacy (lex  rex) in contradistinction to the rule of man (rex lex).” Li-ann Thio, Lex Rex or Rex Lex?, 20 UCLA Pac. Basin L.J. 1 (2002)]

In the context of federal courts and the Rule of Law, the idea is that judges should apply the law, but not make the law.

Thus, the idea of judicial review in Marbury is that federal courts have the power to apply the Written Constitution; but the doctrine of judicial review does not give federal courts the power to make law or to effectively amend the Constitution by fast and loose “interpretation.”

Scalia and Roberts on Obergefell: An Excerpt From My Forthcoming Article

IV. Scalia's Dissent in Obergefell and The Rule of Law

"Just who do we think we are?"[1]

 

Recently, Justice Kennedy spoke at Harvard Law School and, in answer to a question from an audience member, said that under the Rule of Law a public official who cannot in good conscience obey a Supreme Court decision, such as its same-sex marriage decree in Obergefell, must either enforce the law or resign from public office.[2] This exchange was obviously a reference to Kim Davis, the Kentucky county clerk who was recently jailed for refusing to issue marriage licenses to same-sex couples in violation of a federal court order requiring her to do so.[3]

Rather than focus on Kim Davis and her disobedience of the Court's decree in Obergefell, I want to ask a different question. Is Justice Kennedy's opinion in Obergefell a legitimate exercise of the Rule of Law? In other words, is it a valid application of the Written Constitution, or is it an illegitimate exercise of raw judicial power?

Obergefell, of course, held that same-sex couples have a fundamental right to marry under the Due Process Clause of the Fourteenth Amendment, and that therefore, "there is no lawful basis for a State to refuse to recognize" same-sex marriages.[4] Of course, in Obergefell Justice Kennedy made absolutely no effort to root the right to same-sex marriage in the original meaning of the Written Constitution. Instead, he relied on his "reasoned judgment" and a "new insight," and his "understanding of what freedom is and must become," and on "a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”[5] Or, in the words of Chief Justice Roberts, Justice Kennedy's Obergefell decree is based merely on his personal belief "that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society.”[6]

Justice Kennedy's majority opinion in Obergefell is not law; it is full of moral philosophy and bad poetry, but not a speck of constitutional law. As both Chief Justice Roberts and Justice Scalia made clear in their dissenting opinions, Justice Kennedy's "judicial policymaking...is dangerous for the rule of law.”[7] Or, in the words of Justice Scalia, Kennedy’s opinion constitutes a “judicial Putsch,” lacks "even a thin veneer of law," and amounts to “a naked judicial claim to legislative...power...fundamentally at odds with our system of government.”[8]

Although the Written Constitution is silent about homosexuality and same-sex marriage, it is not silent about which level of government is entrusted with the power to define and regulate "all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”[9] Under the Tenth Amendment, the power to define and regulate marriage is "reserved to the States respectively, or to the people."[10] Indeed, even Justice Kennedy, in his opinion in U.S. v. Windsor,[11] recognized that under the Constitution: ‘”The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.”’[12] Moreover, as Chief Justice Roberts' principal dissent in Obergefell made absolutely clear: "There is no dispute that every State at the founding—and every State throughout our history until a dozen years ago—defined marriage in the traditional, biologically rooted way...as the union of a man and a woman."[13]

Chief Justice Roberts and Justice Scalia, dissenting in Obergefell, did not hesitate to declare the Majority's decree in the case a clear violation of the Rule of Law. Justice Scalia joined Chief Justice Roberts' dissent in full. He also wrote a separate dissent "to call attention to this Court's threat to American democracy."[14] The Roberts' dissent brought the light, and the Scalia dissent brought the thunder to Kennedy's nonoriginalist majority opinion in Obergefell. Here are just a few of the points Roberts and Scalia made:

·         “’[W]e have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.’”[15]

·         “If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?”[16]

·         "The majority's decision is an act of will, not legal judgment.”[17]

·         "Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.... The Court's accumulation of power does not occur in a vacuum. It comes at the expense of the people.”[18]

·         And finally, Justice Scalia leaves not a hint of doubt as to his view that Obergefell is not a legitimate part of the Rule of Law: "Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court."[19]

If "this" Written Constitution is not only law, but the supreme "Law of the Land," as Article VI explicitly prescribes,[20] then Justice Kennedy's lawless opinion in Obergefell does not follow the Rule of Law. As Roberts said it so well in his dissent, if you like the results in Obergefell, by all means celebrate those results: "But do not celebrate the Constitution. It had nothing to do with it."[21]

If the Constitution had nothing to do with the doctrine of Obergefell, then the Rule of Law had nothing to do with it either. Here is a way to think about Obergefell and whether it is an activist, extra-constitutional decision by the Supreme Court. Think about this—was there ever a time in American history when three­fourths of the States—38 of the 50 states today—would have ratified a constitutional amendment proposing to redefine marriage as decreed by the Court in Obergefell?

Remember the Constitution is supposed to represent a consensus among we the people in the States; not a national democratic vote or poll, not the policy preferences of unelected judges, but a strong consensus among the states.[22] So was there ever a time in American history when three-fourths of the states would have ratified a proposed constitutional amendment redefining marriage as including same-sex marriage? 1789? 1868 (when the Fourteenth Amendment was ratified)? 1920? 1973? 2015? Ever?

If your answer is "no"—never—that tells you something about Obergefell and whether it is legitimate. How can same-sex marriage be a legitimate constitutional right if we all agree it could never have been ratified as a legitimate part of the Written Constitution?

Thus, perhaps it is Justice Kennedy, not Kim Davis, who is guilty of violating the Rule of Law. And Justice Scalia is surely correct when he concludes that The Living Constitution is a clear and present danger to the precious right of we the people to democratic self-government in the several states. As he put it as no one else could, in what was his last, great dissent: "[T]o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”[23] Scalia should have dropped the microphone when he published this truth about the threat of the Living Constitution to liberty and democratic self-government. His voice on the Court will be missed more than we can quantify.

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[1] Obergefell v. Hodges, 576 U.S. ---, [2] (2015) (Roberts, C.J., dissenting). Justice Scalia joined this opinion "in full." Id. at [l] (Scalia, J., dissenting). [page references are to the slip opinions].

[2]See Justice Kennedy Speech at Harvard Law School, Oct. 22, 2015, available at: https://www.youtube.com/watch?v=ZHbMPnA5n0Q. The particular discussion occurs at around 50:42. Here is the transcript of Justice Kennedy's response: "Great respect, it seems to me, has to be given to people who resign rather than do something they think is morally wrong in order to make a point. However, the rule of law is that, as a public official, in the course of performing your legal duties, you are bound to enforce the laws." John Riley, Justice Kennedy: Public Officials can't ignore Supreme Court rulings, Oct. 28, 2015, Metro Weekly, http://www.metroweekly.com/2015/10/justice-kennedy-public-officials-cant-ignore-supreme-court-rulings/

[3] Alan Blinder & Tamar Lewin, Clerk in Kentucky Chooses Jail Over Deal on Same-Sex Marriage, N.Y. Times, Sept. 3, 2015, http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html.

[4] 576 U.S. at [28].

[5] Id. at [10, 11 & 19].

[6] Id. at [10] (Roberts, C.J., dissenting). Or to put it another way, "The majority's driving themes are that marriage is good and petitioners desire it." Id. at[15].

[7] Id. at [22].

[8] Id at [6, 4, 5] (Scalia, J., dissenting).

[9] The Federalist No. 45 (J. Madison).

[10] U.S. Const. amend. X.

[11] 570 U.S. at----, 133 S. Ct. 2675 (2013).

[12] Id. at----, 133 S. Ct. at 2691 (quoting In re Burrus, 136 U.S. 586, 593-594 (1890)).

[13] Obergefell, 576 U. S. at---- [6] (Roberts, C.J., dissenting).

[14] Id. at --- [1] (Scalia, J., dissenting).

[15] Id. at --- [12] (Roberts, C.J., dissenting) (quoting Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting)).

[16] Id. at --- [22].

[17] Id. at --- [3].

[18] Id. at--- [25-26]

[19] Id. at --- [2] (Scalia, J., dissenting).

[20] U.S. Const. art. VI .

[21] Obergefell, 576 U.S. at --- [29] (Roberts, C.J., dissenting).

[22] U.S. Const. art. V.

[23] Obergefell, 576 U.S. at --- [6] (Scalia, J. dissenting).

Obergefell--A Few Thoughts and Questions

1. What is Substantive Due Process?

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Does the Due Process Clause protect liberty by requiring procedural safeguards (by requiring process that is due before a state deprives someone of liberty), or does it protect certain liberties substantively?

If the latter, which liberties are protected? All liberties? Certain liberties? Which ones? Fundamental liberties? Which liberties are fundamental? And where does the Constitution provide a list of fundamental liberties?

Is Obergefell an example of Judicial Activism? Or is it an example of the Court faithfully applying the protections of the Written Constitution?

2. Chief Justice Roberts suggests that "those who believe in a government of laws, not of men" should be disheartened by the Majority's decision to redefine marriage in all 50 states. (p.2; 12;22).  What does he mean by this? What is the Rule of Law?

3. Roberts talks about "the precious right" to democratic self-government. And Bork quotes Chesterton:"What is the good of telling a community it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people." See also Scalia at p. 2: The Court's decision in Obergefell "robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

What do you think Roberts & Scalia meant by all this?

4. Does Obergefell advance any liberty interest? Or does it deprive Americans of liberties explicitly protected by the Constitution?

5. How secure is religious liberty in the wake of Obergefell? Is absolute sexual autonomy and recognition a more fundamental liberty than religious liberty?

Judicial Review: Questions To Discuss

1. Where does a judge applying an "evolving Constitution" look to determine what new species the written constitution has evolved into? DNA testing? Bob Bork says "the truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else." Do you agree? Does Justice Brennan agree? Is the "living Constitution" theory a theory of evolution or a theory of intelligent design?

2. Judge Bork writes: "Every time a court creates a new constitutional right against government or expands, without warrant, an old one, the constitutional freedom of citizens to control their lives is diminished." What does he mean by this? What did Chesterton mean when he said: "What is the good of telling a community it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people."

3. Bork also says that when the Court discovers that a new constitutional species has somehow evolved, the Court's opinion should make clear (in the interest of full disclosure to the people) that the decision "does not come out of the written or historical Constitution. It is based upon a moral choice the judges made, and here is why it is a good choice, and here is why judges are entitled to make it for you." Should the Court be honest when creating new constitutional doctrine and applying that doctrine to strike down popular laws such as the Pledge of Allegiance?

4. Proponents of a "living, breathing, evolving Constitution" sometimes argue that the Constitution must evolve to keep pace with social progress, changes of social circumstances, and more enlightened modern understandings of liberty and justice. Do you agree with this argument? What might a proponent of originalism argue in response? How do we know that the Court's view of liberty and justice is more enlightened than that of the People? Does the Court speak for the People? If not, how do the People speak?

5. See Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006). Here is a summary of Waldron's thesis, written by Prof. Richard Garnett:

In his essay, [Waldron] suggested that "rights-based judicial review is inappropriate for reasonably democratic societies whose main problem is not that their legislative institutions are dysfunctional but that their members disagree about rights.'" This is because (to oversimplify) there is no reason to believe that courts...are more likely to better protect rights than are democratic legislatures....

And here is an excerpt from Waldron's article at 1353:

In this Essay, I shall argue that judicial review is vulnerable to attack on two fronts. It does not, as is often claimed, provide a way for a society to focus clearly on the real issues at stake when citizens disagree about rights; on the contrary, it distracts them with side-issues about precedent, texts, and interpretation. And it is politically illegitimate, so far as democratic values are concerned: By privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality in the final resolution of issues about rights.

6. Here is another quote from Bork that captures, I think, the core of the controversy:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Do you think judges should give in to this temptation? Why or why not?

7. Justice Brennan says his duty was to enforce the "constitutional vision of human dignity" and that "the demands of human dignity will never cease to evolve." Where is that clause contained in the Constitution? What is human dignity? Does respect for human dignity require that capital punishment be upheld to protect the human dignity of the murdered victim? Or struck down to protect the human dignity of the convicted murderer? Does it require that abortion laws be struck down to protect the human dignity of pregnant women facing unwanted pregnancies? Or must the states ban abortion to protect the human dignity of developing babies in the womb? Does it require government to provide free housing, food and health care to the poor? Or to reduce the burden of taxation to vindicate the dignity of persons to decide how to spend the money they earn by their own hard work?If the Constitution does not define human dignity (or even mention it), how do Justices know what the constitutional right means and which laws are inconsistent with it?

8. Consider again what Justice Brennan says about whose interpretation of the Constitution he seeks to enforce:


"When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought. Justices are not platonic guardians appointed to wield authority according to their personal moral predilections."

Which "community" supplies the interpretation Justice Brennan then adopts as law? He tells us more when discussing his view that capital punishment is "under all circumstances" unconstitutional:

"This is an interpretation to which a majority of my fellow Justices--not to mention, it would seem, a majority of my fellow countryman--does not subscribe...I mentioned earlier the judge's role in seeking out the community's interpretation of the Constitutional text. Yet, again in my judgment, when a Justice perceives an interpretation of the text to have departed so far from its essential meaning, that Justice is bound, by a larger constitutional duty to the community, to expose the departure and point toward a different path. On this issue, the death penalty, I hope to embody a community striving for human dignity for all, although perhaps not yet arrived."

9. When a Justice seeks to embody the values of a future, ideal community, whose values does he look to in defining what kind of future community is the ideal?

10. Here is the essence of the debate in my opinion. Most Americans love and accept the Constitution and have no problem being governed by it. But to be governed by the Constitution is one thing; to be governed by the policy preferences of an unelected body of lawyers is something else. The Court's legitimacy depends upon its ability to truthfully assure the People that its decisions are faithful interpretations of the written Constitution (as opposed to decrees imposing the policy choices of 5 members of the Court). Do you think the Court has succeeded in this regard?

Let's talk about these issues in class.

What is Original Understanding?

Consider Professor Paulsen’s “Enterprise of Constitutional Interpretation”(see 114 Yale L.J. at 2056-2057):

My un-grand but radical position (within the small world of academic constitutional theoreticians) is simply this: The enterprise of constitutional interpretation – of discerning the document’s meaning – consists of giving to the Constitution’s words and phrases the meaning they would have had, in context, to informed readers of the language at the time of their adoption as law, within the relevant political community. Contrary to Rubenfeld’s assumption, and that of many other academic theorists, this seems to be the interpretive method prescribed by the Constitution itself.  The straightforward internal textual argument for original-meaning textualism is that the Constitution is a written document; that it specifies “this Constitution” as the thing that is to be considered supreme law; that the default rule for textual interpretation was, at the time of the Constitution’s adoption, the natural and original linguistic meaning of the words of the text; and that any argument for anachronistic interpretations of the text – that is, for substituting a personally idiosyncratic, nonstandard, or time-changed meaning in preference to the one that would have been understood at the time, and in the context, in which the text was adopted – ends up substituting some other words for the words chosen in “this Constitution.”  In short, the Constitution is written law, and the meaning of a written legal instrument is the original meaning of its words, not a different meaning substituted by someone else.

The enterprise of constitutional adjudication consists of applying the original linguistic meaning of the document to lawsuits in which a question of constitutional meaning is properly presented.  This requires another step: discerning second-order rules about what to do when the Constitution supplies a rule of law that applies to the case at hand; what to do when it does not; and what to do when the answer is unclear.  But it is not too hard to come up with such rules.  Simply put: If the meaning of the words of the Constitution supplies a sufficiently determinate legal rule or standard applicable to the case at hand, that rule or standard must prevail over a contrary rule supplied by some other competing source of law (typically a state or federal statute, or an executive branch or agency action).  That is because of the supremacy of the Constitution over other law.  Thus, if the Constitution supplies a rule, that rule prevails.  But if the meaning of the Constitution’s language fails to provide such a rule or standard – if it is actually indeterminate (or under-determinate) as to the specific question at hand – then a court has no basis for displacing the rule supplied by some other relevant source of law applicable to the case (typically, a rule supplied by political decisions made by an imperfect representative democracy).  Folks legitimately might disagree as to when the original meaning produces a determinate answer, or what counts as sufficiently determinate to supply a constitutional rule appropriate for judges to apply to invalidate political decisions.  But that should be the core of the enterprise.

The Great Debate

The “Great Debate” in constitutional law, one that has raged for over 200 years[1] and most recently boiled in Obergefell v. Hodges[2] (the same-sex marriage case) is this: Should courts interpret the Written Constitution’s text as it would have been understood by ordinary citizens alive at the time the text was adopted? Or should they interpret the Constitution as a “living” organism, one meant to evolve to suit the changing needs and values of contemporary American society? Originalists believe that if the Constitution must evolve to keep pace with our constantly changing world, we should seek this change through the legitimate amendment process of Article V.[3] Simply put: amendments should come from the people, not the Supreme Court.

      However, proponents of a Living Constitution believe that the formal amendment process is too “cumbersome”[4] to keep the Constitution current—that it is too difficult to amend the Constitution under the process set forth in Article V – and that necessity therefore requires the Supreme Court to amend the Constitution from the Bench.[5] For example, if the duly ratified Constitution does not give Congress sufficient power to deal with a global economy and contemporary social issues such as same-sex marriage, then it is the duty of the Court to recognize that the Constitution has somehow evolved to meet our ever-changing political needs. After all, why should contemporary Americans be encumbered with the views and philosophies of long-dead white males who had no understanding of the needs and values of America in 2016?[6] And, as Justice Brennan liked to say, there are so many “majestic generalities and ennobling pronouncements”[7] in the Constitution –due process, equal protection, privileges and immunities—and these “luminous and obscure” terms make it so easy to interpret the Constitution to mean whatever the Court wants it to mean while still claiming faithfulness to the written text.[8]

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[1] I am referring to the great debate between Justice Chase and Justice Iredell that took place in 1798 in Calder v. Bull. See Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).

[2] 576 U.S. (2015).

[3] U.S. Const. art. v.

[4] See Erwin Chemerinsky, Constitutional Law: Principles and Policies 24 (5^th ed. 2015)(stating that the “cumbersome amendment process” makes it too difficult for we the people to amend the Constitution and thus judicial amendments are “necessary if the Constitution is to meet the needs of a changing society”).

[5] Id. David Strauss also argues that we need a Living Constitution created by the Court because “the world has changed in incalculable ways” and “it is just not realistic to expect the cumbersome amendment process to keep up with these changes.” David A. Strauss, The Living Constitution 1-2 (2010).

[6] See Thomas E. Baker, Constitutional Theory in a Nutshell, 13 William & Mary Bill of Rights J. 57, 73 (2004) (explaining how nonoriginalists reject “being ruled by dead white men”). Of course, Supreme Court Justices do not live forever and yet their opinions under the Living Constitution “rule” us from the grave. For example, all of the Justices who decided Roe v. Wade are now dead. See Originalism: A Quarter-Century of Debate 310 (Steven G. Calabresi, ed. 2007) (noting that the holding of Roe v. Wade represents “the dead hand of the past for us now”).

[7] Justice William J. Brennan, Jr., Speech to the Text and Teaching Symposium, Georgetown University, Oct. 12, 1985, in Originalism: A Quarter-Century of Debate 56 (Steven G. Calabresi, ed. 2007).

[8] Id. In Justice Brennan’s mind, the ambiguity of these majestic generalities “calls forth interpretation, the interpretation of reader and text.” Id. And for himself, as a modern Justice reading the text of the Constitution, Brennan explained that “the ultimate question must be: What do the words of the text mean in our time?” Id. at 61.