Thursday, August 24, 2006

A Sensible Middle Ground?

Peter S. Wenz, in an article titled "Dworkin's Wishful-Thinkers Constitution," argues for a middle ground jurisprudence that eschews the extremes of Dworkin and Scalia.

Dworkin, as he correctly notes, favors a liberal interpretation of the Constitution, where he interprets the clauses broadly (as principles) and the judge is obligated to ascertain the moral reading of the clause. Since morality shifts from generation to generation, the judge will interpret the clauses based on his best interpretation of the current moral climate. Wenz doesn't support the judge finding unremunerated rights based on morality, and argues that such a jurisprudence leaves too much open to the judge's discretion and circumvents democracy.

Scalia, on the other hand, views the clauses as rules and favors a more narrow interpretation. However, his narrow interpretation leaves the Constitution static and not relevant to the modern world.

He therefore proposes another form of interpretation based on jurisprudence of Justice Hugo Black. Black was the quintessential textualist. He refused to "find" rights based on "ordered liberty" or within the Due Process Clause. Black was a textualist, and if it isn't in the text, then it doesn't matter.

Wenz, however, does not consider Black an originalist, so his jurisprudence would not relegate the Constitution to the 18th Century. It eschews both extremes and draws a sensible line.

I do not agree with his conclusion for a few reasons:

1) He misunderstands both originalism and Scalia's version of it. Scalia does not interpret the Constitution as a set of rules. Everyone admits that some clauses are abstract and cannot be defined narrowly. What people like Wenz fail to comprehend is that abstractness is not synonymous with progressiveness. Scalia's response to Larry Tribe in a Matter of Interpretation argued that just because a clause is abstract, it does not follow that the clause must change over time. It simple means that the clause must be interpreted broadly based on the 18th century understanding of the term.

2) While Black was not an originalist, he would not have agreed with Wenz's caricature of his position. Wenz chides Dworkin for not recognizing that everything Dworkin argues for can be textually based. Prohibitions against abortion could be unconstitutional simply because their sole basis is religious (!) and the Constitution requires a separation of church and state. Moreover laws proscribing contraceptives are similarly rooted in religious tenets and would also run afoul of the 1st Amendment.

But Black himself dissented in Griswold! He did not support the religion argument, simply because (if I may guess) textualism requires interpreting the text according to its plain meaning and an interpretation that reads the 1st Amendment to outlaw bans on contraceptives would twist the wording beyond all recognition. That's not textualism; it's Dworkinism in a new set of clothing.

While I respect Black's interpretive methodology, my position is more similar to Scalia's. But Wenz's version of textualism has nothing to do with Hugo Black and is just another effort to make the Constitution say whatever we want it to mean.

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