George and Kagan

In a recent post at Mirror of Justice, Robert George maintains that: “If, indeed, Kagan believes it is legitimate for judges to read into the Constitution liberal (or, for that matter, conservative) views about abortion, sexuality and marriage, religion, speech, or anything else, then she should be opposed for that reason.  In my judgment, a constitutionalist is someone who believes that the legitimate sources of constitutional meaning are the text of the Constitution, the logical presuppositions and implications of its provisions, its structure, and its publicly understood historical (or "original") meaning.  A jurist who is willing to look beyond these sources of meaning in order to reach outcomes in line with his or her moral and political preferences undermines the Constitution by usurping authority it allocates to other actors in the system.”

I have a number of clarifying questions about this passage. First, I wonder if George counts precedent as a constitutional source of meaning. It is not obvious from the quoted passage that he does. Second, I wonder which justices serving from the Warren Court to the present meet this standard. Does anyone put forward by a Democratic President serving anytime from the Warren Court to the present meet this standard (perhaps Justice Black?)?

If I were to faithfully apply George’s standard (given my current understanding of it), I would conclude that the overwhelming majority of these justices are not constitutionalists in George’s sense. This would mean that George’s understanding of proper constitutional interpretation differs from that of the overwhelming majority of the justices over an extended period. George’s perspective appears to me to be a critical perspective, not a descriptive perspective. If one were describing what the Court does, I would think that the Court looks to language, history, structure, precedent, policy, and occasionally its power (or limits thereof) as constitutional sources in arriving at constitutional interpretations.

Should those who approve of the Court’s methodology oppose every “constitutionalist”? George apparently sees opposition to non-constitutionalists as defending the Constitution, or, as I see it, defending his subjective understanding of constitutional interpretation. There are many who think that a President should be given some deference in picking a nominee for the Court. That is, for example, no Democrat can reasonably expect a Republican President to pick a liberal. But I assume that apart from his personal theory of constitutional interpretation, George has no grounds to criticize Democrats if they oppose “constitutionalists.”

Comments

[Rinku Mathew]

No problem Steve. Enjoy Prague.

[Steve Shiffrin]

Hi Rinku Mathew
Thank you for your kind comment. I am in Prague now and do not have time to answer, but I will try to do so when I get back.

[Rinku Mathew]

Hi Steve,

Since my political bent and view of the law differs from you, I typically disagree with you, but I always enjoy your posts because you are always civil and your posts often get to the heart of dispute between conservatives and liberals . I am curious: even granting the president a measure of deference, by what criterion do you evaluate a judicial nominee if you reject Robby George's constitutionalism criterion?

I understand that you were not setting out your views in this post, but merely posing clarificatory questions of George's view. But I would like to know what standard you would use.

Best,
Rinku Mathew

PS: I think you'll find this exchange between Dan Solove and Lawrence Solum useful.

http://lsolum.typepad.com/legaltheory/2010/05/not-all-of-us.html