Brett Belmore on Die Constitution Die
Brett Belmore writes:
I believe you've misunderstood Jonah's point. It doesn't really matter whether a jurist attempts in good faith to understand the "contemporary meaning" of the Constitution. Such a jurist could have good faith coming out of their ears, could be oozing excellence out of every pore, and wouldn't matter, because the Constitution doesn't HAVE a "contemporary meaning", it has a "meaning". And somebody who's trying to find the former will never be a good judge, no matter how diligently they apply themselves, because they're dilligently trying to do the wrong thing.
And that bit about how the Constitution means whatever judges say it means? Try to remember that while that's seen as common sense in the legal fraternity, outside that closed circle, that attitude is regarded as an example of arrogance on a par with the Sun King's "L'état, c'est moi".
posted by Lawrence Solum 8:52 AM
Alan Kusinitz on Legitimate State Interests
I recieved the following, very smart, comment from Alan Kusinitz on my Legitimate State Interests post:
"Legitimate" comes from the Latin word meaning "law." Thus, a legitimate state interest is one conforming to the law. However, there are many meanings of law. What law? As we know, laws must conform to the fundamental Law of the land which is the constitution and certain priniples that are implicit in the consititution, but are not necessarily written therein, for example the natural law principles in the Declaration of Independence. The concept of spheres of influence is helpful, but the early thinkers on this that you cite mistakenly identified only two spheres (State and Federal). In fact, the founding fathers (following Locke) recognized that there are three spheres: federal, state and individual spheres. The individual sphere concerns "by nature private things." (Hobbes) The three spheres, of course, are not clearly delineated, and infringe on each other. Right or wrong, the three levels of scrtiny seek to judge the legality (legitimacy) of rules and regulations where those spheres infringe or overlap on each other (e.g., the state or federal spheres on to the individual sphere). Criminal sodomy laws concern "by nature private things," and therefore belongs to the spheres of the individual. Scalia simply does not recognize the sphere of the indivual and in that sense is within the Harlan tradition. Recent opinions suggest that Kennedy and O'Connor seem to be awakening to the legitimacy of the individual/pirvacy sphere.Back to Legal Theory Blog.
posted by Lawrence Solum 8:07 AM
CAROLENE PRODUCTS FOOTNOTE (1938)
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the 14th. [Case citations deleted]Source: 304 U.S. 144 (1938).
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendments than are most other types of legislation...
Nor need we enquire whether similar considerations enter into the review of statues directed at particular religious...or nationaL...or racial minorities; [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry...
posted by Lawrence Solum 7:34 AM