Bad, Bad Arguments

To be faithful to our written Constitution, a jurist must recognize and respect the limiting nature of its terms. Granted, what a term such as “due process” requires in a particular circumstance is not always clear. Nevertheless, there should be no question at all about whether a 34-year-old or a naturalized citizen may become President of the United States. That the terms giving rise to most questions of constitutional meaning lie somewhere between inherent ambiguity and mathematical certainty is no excuse from the duty of fidelity to the text. Rather, to be faithful to the written Constitution a jurist must make it his goal to illuminate the meaning of the text as the Framers understood it.

So quoth one of the obnoxious libertarian scholars in my constitutional law/political philosophy reading that I've been doing just now. See what he does there? The first 4.8 sentences, out of 5, are a really strong argument for textual fidelity, including ample respect for the fact that much of the constitution is vague and that this allows a lot of interpretive discretion. But then, at the last minute, he sneaks in "as the Framers understood it." Nothing in the argument in the rest of the paragraph (and none of the argument earlier in the essay, or subsequent) is dedicated to showing or trying to show that "fidelity to the text" means "fidelity to the text as the Framers understood it." My favorite interpretive principle from Steve Calabresi is that people can misunderstand their own rules. So, for instance, in 1868 a bunch of people put the following into the federal Constitution:

No State shall ... deny to any person within its jurisdiction the equal protection of the laws.

At the time, people thought that meant some things, and didn't mean others. Notably, they pretty clearly didn't think that meant schools had to be integrated; they didn't think it meant you had to give women any particular degree of equal protection; and they certainly didn't think it meant that groups like "poor people" or "gay people" had any equal-protection rights. And they were wrong! The phrase above most definitely means that schools must be integrated, and women get equal protection, too, and so do gay people, and probably poor people should as well. That's what the text says. Saying we have to interpret that as the framers understood it is, in fact, to diverge to the text, to apply not the words enacted into the Constitution but rather to apply the particular ideologies of 1868. That ain't fidelity to the text.

Anyway, that was just a really bad argument that pissed me off.