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Who Decides If New Interpretations of the Constitution Are Legal

These descriptive reports that constitutional text and history are currently of little importance to judges do not tell us whether text and history should matter to judges. As a normative issue, what should judges do in contentious constitutional cases? Do we want judges to set rules based primarily on their interpretive judgments about what the constitutional text and its history really “mean,” or based primarily on careful and careful analysis of today`s likely costs, benefits, and consequences (and how previous judges have made that compromise)? This author prefers the methods of Posner J. and Strauss for several reasons, although I can only describe here the beginning of this argument.28×28. Some will argue that this description of the text and the policy is a false choice, and that constitutional decision-making is a mixture of both (with precedents). My thesis, consistent with the reports of Justices Posner and Strauss, is that while judges can write about text (and its history) in explaining their decisions, neither text nor history produces results in cases where they disagree with the judges` values. There are also cases where judges rely on previous cases when those cases do not have a strong conflict with the judges` values. If you look at the constitutional law as a whole, this body of law bears very little resemblance to the text of the Constitution of 1789, 1791 and 1868. That is the reality. The only valid way to defend oneself constitutionally is to provide a good contemporary argument for or against a particular interpretation.4×4. Nevertheless, political activists, state and local elected officials, and others have sometimes argued vigorously that the doctrine of equality requires the federal government to transfer ownership of its public lands to Western states. so that these states can really be on an equal footing. All these claims have been categorically rejected by the courts.

Indeed, the wording of the Supreme Court`s opinion in Pollard`s Leasesee, which implied that equal state sovereignty required the transfer of federal public land ownership to the states after admission by the Union, was effectively reversed by decades of subsequent jurisprudence of the Supreme Court and lower courts. The decades-long debates over federal land ownership reflect a central fact of the eligibility clause: much of its importance to our constitutional system of government is reflected in its practical implementation, not just in the principles of the rule of law developed by the courts. The history of the decidedly unequal relationship between Congress and newly admitted states—and the persistent unequal distribution of the public state and associated federal regulator—shows the limits of the doctrine of equal rights. That`s not to say doctrine isn`t important — it`s certainly important that Congress can`t use its eligibility clause powers to force a newly admitted state to accept only one senator to represent it in the Senate. But the nature and form of our current constitutional system is shaped as much by the practice of the application of the eligibility clause by Congress as by the jurisprudence of the doctrine of equal rights. His explanation of the “taboo of explicitly ignoring the text” is the least convincing aspect of Strauss`s article. The issues Strauss emphasizes as “settled” are not resolved because the judges believe in the primacy or meaning of the constitutional text, but because no one has been able to negotiate these settlements. The president`s age, the date he leaves office, or the misallocation of the Senate (which violates the court`s “one person, one vote” rule for other legislators without the express constitutional authority of Article I) have simply not been challenged by creative lawyers on behalf of aggrieved plaintiffs who have the right to challenge these regulations. If they were, and the court felt that the political reasons were strong enough, the judges would in fact ignore the text, as they did in the many examples that Strauss sets out in his article. If the word “other” can mean the same thing, or if the word “Congress” can mean “president,” then any text is up for grabs if the current stakes are high enough (as Justice Posner describes). Professor Strauss cites many examples of constitutional “anomalies” that most people today take for granted when Supreme Court decisions are completely irreconcilable or in great contradiction with the constitutional text.

For example, the First Amendment applies to the president, although it relates exclusively to Congress, the equality clause of the Fourteenth Amendment applies to the federal government even though it refers only to the states, and the word “other” in the Eleventh Amendment, which limits lawsuits against states to plaintiffs from “another” state, has been interpreted by the Supreme Court to mean that it somehow means the “same” state.13×13. See id., pp. 28–52 (description of these and other anomalies). Moreover, in Chicago, Justice Posner did not speak philosophically about rights in general, but about actual litigation, and Strauss`s foreword deals with how the Supreme Court rules real cases. Vague commitments to freedom of expression or the non-establishment of a religion do not tell judges how to decide certain cases of freedom of speech and religion.

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