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Wednesday, November 30, 2005

Wednesday's Open Thread

Here it is.  Remember the rules: be nice and don't be a space hog.

Posted by Dan Markel on November 30, 2005 at 12:30 AM in Deliberation and voices | Permalink

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This is from a non-lawyer to law professors who (to some extent or other) embrace the "living constitution" philosophy. (I know other terms are favored in some quarters, but I hope to avoid a discussion of what the appropriate names/descriptions are.) Can anyone give me an example of an issue (historical or hypothetical) that meets the following criteria:
1. you can make a convincing argument that the "living constitution" philosophy supports one side of an issue, and you are quite confident that "literalists" (Scalia) would not accept the argument;
2. You personally disagree with the policy position supported by the living constitution position.

For example, you could say, "I agree with the interpretation that capital punishment is cruel and unusual punishment, and therefore is unconstitutional; but I support capital punishment as a policy."

Posted by: howardl | Nov 30, 2005 8:16:15 AM

HowardL: I'll throw one up: It is clear that under modern, more-or-less-living-constitutional law, violations of Fourth Amendment rights are remedied via the exclusionary rule. I personally don't think that the exclusionary rule is a very good remedy.

Your question seems to me to be based on a bit of a misunderstanding of whatever the "living constitution" is. My impression is that it's a common law view of the constitution informed, to some extent, by the sorts of policy and policy-like analysis that also inform the common law. It is not an interpretive approach that yields determinate answers without looking at precedent -- you can't just look at a provision, without reference to cases, and say "oh, the living constitution would read this provision as XXXXX."

Posted by: Matt | Nov 30, 2005 10:15:03 AM

Howard: I'm not a prof, but I'm a defender of various concepts that could arguably fall under the "living constitution" class (subject to Matt's entirely correct clarifications). I believe in penumbral emanations. I feel like I've gotten into this argument before (Simon, are you out there?), so I'll bite. This is actually very, very easy:

1. Kelo. I'm not sure I agree that the constitution could be interpreted the way the Supreme Court has done on this case, but the majority's argument is at least plausible. The "literalists" violently disagreed, and I agree with the literalists on policy grounds.

2. Raich. Here, I agree on legal grounds with the expansive vision of the commerce clause. The strict constructionist/originalist commerce clause interpretation, as in Lopez (which, admittedly, Scalia didn't obey) would not support this decision. I don't support the law at issue, hence I disagree on policy grounds.

3. Miranda. See Matt's exclusionary rule point. I am skeptical of the notion that a mere rote recitation of a package of "rights" actually ensures that confessions are voluntary, so I think the caselaw has gone off the train as a policy matter here.


Posted by: Paul Gowder | Nov 30, 2005 10:39:58 AM

Thanks to Matt and Paul. Matt: I admit to a fuzzy understanding of the concept. The one concrete example I hang on to is from Scalia's perspective, and I recognize that is not unbiased: it is the capital punishment question. I think that it is a (brennan?) decision on this where the phrase "living document" is found; and I agree that you can't just read the 8th amendment and know exactly what cruel means. Scalia says interpret the term as it would have been interpreted at the time the 8th amendment was adopted; Brennan(?) says the meaning changes over time and we have to look to modern culture and mores.

Matt: is there a "strict constructionist" (or "originalist" or whatever term you like) argument that concludes that the exclusionary rule is the wrong remedy for 4th amendement violations?

Paul: I follow you on Kelo (seizing private property for private use) and Raich (can feds regulate medical marijuana), and I think these are exactly the kinds of examples I was looking for. Just to be clear, are you saying that you agree that those cases were properly decided even though you disagree with the policy outcomes?

Posted by: howardl | Nov 30, 2005 1:44:14 PM

Howard: I agree that Raich was properly decided, painful as it is. I'm not so sure about Kelo, but I think that good faith judges could go either way on the legal question at issue, so the court's decision isn't best criticized on grounds of infidelity to the constitution.

Posted by: Paul Gowder | Nov 30, 2005 1:56:45 PM

Sure there's a strict constructionist argument: The Constitution doesn't mention a remedy for search and seizure violations, so the exclusionary rule is a judicial creation rather than a literal reading of the constitution.

Posted by: Matt | Nov 30, 2005 2:28:05 PM

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