I was a horrible law student, so horrible, in fact, that I am surprised my school, the University of Connecticut, graduated me, with honors, no less. I wish I could attend law school all over again.
What made me so horrible?
I blame my high school civics teacher, whose name, unfortunately, I do not recall. He was a student-teacher completing his education at Denby High School in Detroit in about 1970, or so. He drilled us on federalism and the separation of powers; he made sure we understood the concept of checks and balances; he made us memorize the Preamble to the Constitution. Every time I hear the words “We the People,” I think of the man’s quiet dignity.
(He was passionate about ideas. I also recall his taking me and a couple of others down to Wayne State University one night to hear a talk by Raya Dunayevskaya, Leon Trotsky’s former secretary before Trotsky was killed by agents of Stalin in Mexico City. She signed copies of her book, “Marxism and Freedom,” for us. I stored the book in my locker, afraid to bring it home. Lumpenproletariat life in the Motor City was scary.)
I bought into the notion of limited government. I took it as a given that we are governed based on our consent. I believed that powers not given to government explicitly were retained by “we the people,” folks like me.
These ideas got me in trouble in law school. By this time, I had read John Locke’s Second Treatise of Government, Hobbes’s Leviathan, Rousseau’s Social Contract. The state of nature, that primordial pre-social and pre-governmental fiction, seemed as real to me as the ugliness of an inner-city street corner.
By the time I got around to reading the Ninth Amendment to the United States Constitution in law school I was a goner: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
I was a goner all right, a libertarian goner. Unless the Constitution explicitly granted a power to government, we the people retained that power.
That’s all I wanted to talk about.
And so it was all I wrote about on the Constitutional Law final exam. The professor, I now realize, asked a question designed to test my knowledge of the various standards of review in constitutional litigation – strict scrutiny, intermediate scrutiny, rational basis, and their relationship to rights deemed, by the courts, either “fundamental” or not.
I skated by that ice rink with scorn, writing about the state of nature, consent, the Ninth Amendment, the right to rebel – questioning the entire artifice of constitutional law as so much judicial gibberish.
It is a wonder that I passed the course. As I recall it, my grade in that course was my worst grade in law school.
And now I argue constitutional cases in all sorts of courts.
I guess I grew up a little.
As I did, I also came to appreciate originalism as a school of constitutional interpretation. Yes, the so-called “living constitution” thrilled me. I recall being enraptured by Griswold v. Connecticut, a case adopting a so-called “penumbral” approach to those “emanations” rising from the Bill of Rights. I spent years trying to litigate in the space created by this language.
Until I realized the language defines everything that is important and nothing at the self-same time. It was this realization that made me skeptical of the power of judges, and drove me to consider a jurisprudence tethered to original intent.
Simply put, I don’t want unelected judges transforming their personal preferences into law by “finding” them in the Constitution’s great open-ended clauses: “due process,” “reasonable” searches and seizures, “equal protection” of the law. Debates about fundamentals in a republic should be decided by legislatures responsive at the polling place to the folks they represent. A judicial aristocracy unbeholden to the people strikes me as just the sort of thing “we the people” revolted over.
I don’t find originalism wholly satisfying. I don’t see why I should adopt the morals or attitudes of folks who lived here centuries ago: they are my ancestors in metaphor only. Times change. Sensibilities change. But when these changes occur, I am more comfortable with a legislature announcing the change after public debate.
I write all this because a friend called me out the other day, accusing me of “hiding” something, and asking “what I was afraid of” when I expressed skepticism about a recent piece in The Atlantic ridiculing originalism, and Amy Coney Barrett, who professes to be an originalist, as purveyors of antediluvian nonsense.
Judges ought to have modest expectations and goals. I no more want a judge out to change the world than I want a lawmaker afraid to try remaking the world. In the clash of ideals about what is just, I want judges to decide cases based on settled law and fair process. I am frightful of the passions of any mob, including one consisting of nine men and women in black robes.
Half a century later, I still see my civics teacher at a chalkboard drilling us about the separation of powers. He did me a solid. I don’t join groups; you won’t find me at a Federalist Society meeting. I remain astounded by the power of government and count the creation of government a wonder. I fear the government, as a good citizen should; I fear activist judges most of all. Call me a reluctant originalist; the theory isn't perfect, but it is a sensible starting point.
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