Stevens Blog Post 10

 In his comments, Lawrence Tribe argues against both Scalia’s and Dworkin’s respective versions of originalism, but also fails to offer his own approach to constitutional interpretation. Tribe is certainly not an originalist, but also says that “I certainly do not regard the Constitution as something that ‘grows and changes’ by some mystical kind of organic, morphing process.” (73). Tribe views Constitutional interpretation as “more complex and varied” than either a pure originalist or evolutionary stance can capture. (74).

 

Tribe says that when the Founders wrote the Constitution they “launched upon a historic voyage of interpretation in which succeeding generations… …elaborate what the text means in all but certain not to remain static.” (70). New generations, in other words, will come to understand (or invent, as Scalia would say) new rights they possess. This view of the Constitution seems to conflict with one of the main goals of the judiciary: to protect liberty and laws against the arbitrary and momentary passions of the people. Ever since Marbury v. Madison, the government has recognized that judges are best able to interpret the law. If Tribe truly believes that the people as a whole are better equipped to do so, than it seems that judges should be much more exposed to popular will, perhaps through elections instead of appointments. If Tribe is not prepared to offer his own version of constitutional interpretation (as he says on page 73) beyond the decisions of the new generations, then his argument has serious implications for the very structure of judiciary beyond the narrow question of constitutional interpretation.

 

The Founders recognized that the people are susceptible to momentary, though perhaps very strong, passions that may lead them to restrict their own liberty or the liberty of others. The Courts are designed to provide some resistance to that impulse, so that the liberty of future generations can be protected. Setting sail on a constitutional voyage without any grounding principle beyond the will of the people can quickly lead to dangerous waters. While I agree with some of Tribe’s criticisms of Dworkin and Scalia, without some sort of principle to constrain a non-static view of the Constitution, I do not think his argument offers an practical alternative to Scalia or Dworkin.

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