"Constitutional protections . . . should not depend merely on a strict construction that may allow 'technicalities of form to dictate consequences of substance.' As the Court remarked in the leading contract clause case of this century [Blasidell], 'where constitutional grants and limitations of power are set forth in general clauses, which afford a broad outline, the process of construction is essential to fill in the details.' . . . . 'The great clauses of the Constitution are to be considered in the light of our whole experience, and not merely as they would be interpreted by its Framers in the conditions and with the outlook of their time.' [quoting U.S. Trust]."
That's from John Roberts's Case Note, 92 Harv. L. Rev. at 91, responding to Justice Brennan's "plain meaning" argument in Allied Steel that the constitutional phrase "Laws *impairing* the obligation of Contracts" should be construed to mean . . . "Laws *impairing* the obligation of contracts" -- and not laws that impose additional obligations beyond those required by existing contracts. See also, e.g., most of Roberts's briefs in constitutional cases and, especially, his extended Harvard Law Review Developments section on regulatory takings. There are many things one can say about that essay -- including that it is extremely impressive for a young student, demonstrating remarkable erudition and sophistication, and that he was obviously very influenced by the writings of Michelman, Sax and Ackerman (even if Robertss pragmatic and theoretical considerations appear to push him to support a requirement of just compensation in situations where those scholars would not). But what one certainly *cannot* say about it -- or of most other Roberts constitutional writings -- is that it is the least bit "textualist," or "originalist," or "strict constructionist." A judge adopting Roberts's understanding of how the Takings Clause should be construed would, in Sam Ventola's words, be "imposing some other world view through judicial fiat" -- not that there's anything! wrong with that! (unless, of course, one does not share the Roberts "world view" regarding of property regulation). Indeed, the writings I've seen suggest that Roberts is not any sort of a doctrinaire constitutional theorist, devoted to certain meta-principles. Instead, hes basically a pragmatist -- comfortable and facile, as all good lawyers are, with the full array of argumentative modes -- albeit one with a very definite political/jurisprudential bias. I predict that that will make him -- for better or worse, depending on one's constitutional vision -- much more influential on the Court than, say, Judge Luttig, Brown or Jones would have been. If I had to hazard one analogy, I suppose it would be that he'll be similar to, and perhaps as effective as, Justice Rehnquist. And it's not going out on very much of a limb to assume that *that's* why the President chose him -- "strict construction"'s got nothin' to do with it. > the original meaning of the copyright clause could not have included: > > movies > records > CDs > videos > webpages > TV > Radio > etc. > > "Original meaning" is a something to understand, but one cannot be > bound by it in a meaningful way. > > The world has changed. And the Constitution is a living one. > > This is not to say that any number of times the Court has strayed > from the text of the Constitution. It has done so repeatedly with > some horrible results and some good results. > > International law, at least in the forms of treaties and customary > law are within the contemplation of the Constitution. > > Consistency at the edge cases and difficult cases tends to be hard > to come by -- the principles one chooses to base a decision on can > determine the outcome. > > Constitutional law is simply not so simple. > > Steve > > On Jul 25, 2005, at 5:15 PM, Samuel V wrote: > > > Well necessary criteria would be that the decision (1) is based on the > > language of the Constitution itself, and the original meaning of those > > words, (2) does not rely on some extra-Constitutional basis, such as > > modern social policy or foreign law, unless that policy or law is > > incorporated by the Constitution, (3) is consistent, in that if it > > treats cases differently, it does so in a way rooted in the > > Constitution itself. > > > > I personally think you could have decisions which are principled > > according to these criteria coming down either way on the religion > > clauses. When I think of decisions based on judicial fiat, I tend to > > think more of other decisions. > > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
