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Intrepretation of the Constitution

Intrepretation of the Constitution

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Published by Chad Whitehead
Scholarly article about interpretation of the U.S. Constitution
Scholarly article about interpretation of the U.S. Constitution

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Published by: Chad Whitehead on Jan 06, 2013
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DiACHRONIC
CONSTITUTIONALISM: AREMEDY
FOR THE COURT'S ORIGINALISTFIXATION
I. THE FIXATION THESIS AND SYNCHRONIC MEANING 1253
A.
Synchronic Meaning
1256
L New Originalism and the Clause Meaning Thesis....
1258
2.
The Separation of Synchronic Meaning from ApplicativeLaw
1259
3.
The Finite Diachronie Time Window
1260
B.
Subjectivity and Discretion Under the Fixation Thesis.
1262
L Subjective Interpretation
1263
2.
Discretionary Construction
1268
II.
DISTRICT OF COLUMBIA V. HELLER:
THE FIXATION THESIS INPRACTICE 1270
A.
The Origins
o/Heller 1271
B.
Scalia's Opinion for the Court
1277
L Interpretation
1278
2.
Construction
1282C.
Stevens's Dissent
1283
L Interpretation
1284
2.
Construction
1286m.
THE
DiACHRONIC
METHOD
1289
A.
The Structural Duality of Written Constitutions
12937.
The "Newtonian" Constitution
1296
2.
The "Darwinian" Constitution
1297
B.
Structural Anachronisms
12997.
"Newtonian" Amendments and "Darwinian"Transformations
1301
2.
Transformations "from Above" and "from Below"..
1303
3.
Legitimacy and Constitutional Change
13071241
 
1242
CASE WESTERN RESERVE LAW REVIEW
[Vol, 60:4
a. The Diachronie "Newtonian
"
Blueprint and ImpliedStructural Alteration
1307
b. The Legitimacy of "Darwinian" Transformations
1309C,
A Note on Discretion
1310
IV.
HELLER
REVISITED:
MCDONALD V.
CITY
OF CHICAGO
AND THE
DiACHRONic
SECOND AMENDMENT
1310
A.
The Fourteenth Amendment, the Bill of Rights, and theStates
1317
B.
The Clash of Synchronicities:
McDonald
and theUnmasking of Judicial Subjectivity
1323
1,
Alito's Opinion for the Court
1325
2,
Thomas's Concurrence
1327
3,
Stevens's Dissent
1329C.
The Diachronie Method and McDonald
1333
1.
The Second Amendment's Structural TeleologicalMeaning Within the 1791 Newtonian Framework....
1335
2.
The Fourteenth Amendment's Structural TeleologicalMeaning Within the 1868Newtonian Framework...,
1342
3.
The Combined Structural Teleological Meaning of theSecond and Fourteenth Amendments Within the 2010Darwinian Framework
1343
CONCLUSION 1345
The intellectual vanguard of the 1980s movement for originalismmarched under the banner of judicial restraint,' The Supreme Court'spower and willingness to shape modem social policy grew radicallybetween the New Deal era of the 1930s and the Warren-Court era ofthe 1960s,^ provoking a backlash by the closing decades of thetwentieth century. In the 1980s, judges, legal scholars, and ordinarycitizens began complaining more frequently and in greater numbersthat politically motivated judicial activism was "unraveling ... thetheoretical underpinnings of constitutional law" and making Courtdecisions increasingly unstable and unpredictable,^
' See Thomas B. Colby & Peter J. Smith,
Living Originalism,
59 DUKE L.J. 239, 289
(2009)
("'A central concem of originalism is that judges be
constrained
by the law rather than
be
left free to act according to their own lights, a course that originalists regard as essentially
lawless.'"
(quoting Steven D. Smith,
Law
Without
Mind,
88
MICH.
L.
REV.
104, 106 (1989))).
2 See HERMAN BELZ, A LIVING CONSTITUTION OR FUNDAMENTAL LAW? 9
(1998).
3
Sheldon D. Pollack,
Unraveling the Constitution,
24 SOCIETY 56, 56 (1987). This
backlash
arguably had a more forceful presence among the lay general public than within the
legal
profession and the judiciary, where it was largely confined to conservative judges and
think
tanks. See Jamal Greene,
Selling Originalism,
97 GEO. L.J. 657, 680-82 (2009) (noting
that
originalism as a political method to restrain the judiciary was
"non gratus
within much of
the
legal academy" though the public extensively "debat[ed this] constitutional methodology").
President
Reagan's Attomey General, Edwin Meese III, played a critical role in popularizing
 
2010]
DIACHRONIC CONSTITUTIONALISM
1243
The öriginalist solution
to the
problem
of an
out-of-controljudiciary was for judges
to
limit their application
of
constitutionalprovisions
to the
original meaning
of the law
contained
in the
Constitution's written text.'* Judge Robert Bork, one
of
originalism'smost outspoken defenders at the time, neatly summarized his creed asfollows: "Either the Constitution and statutes are law, which meansthat their principles
are
known
and
control judges,
or
they
are
malleable texts that judges may rewrite to see that particular groups orpolitical causes win."^
If
they are the latter, as Bork feared they hadbecome, then the Court's constitutional doctrine would be as fickle
as
the American electorate.^ Originalism
was to he the
anchor thatprevented the Court from subverting its own constitutional authority.In
the
early 1990s,
the
Court—under
the
infiuence
of
recentlyappointed self-avowed originalists Justices Antonin Scalia
and
Clarence Thomas^—began to incorporate originalist principles into itsinterpretation
of
constitutional provisions.'
Yet the
Court's
"tum
to history''^
did not
mitigate
the
"unraveling"
of
constitutionaljurispmdence as the originalists
of
the 1980s had promised
it
would.During
the
first decade
of the
twenty-first century, many
of the
most divisive and contentious Supreme Court decisions have resultedfrom competing historical exegeses
of
the Constitution's text amongdifferent Justices.' These cases have recently been provoking
the
and politicizing originalism. See
id.
•• See
BELZ,
supra
note
2, at
229 (detailing the evolution
of a
concept establishing
a
written constitution with objective, discoverable meaning).
' ROBERT
H.
BORK, THE TEMPTING OE AMERICA: THE POLITICAL SEDUCTION OF THELAW2(1991).
' See
id.
at
11 ("We may
. . .
expect
a
constitutional law that lurches suddenly
in
onedirection or another as one faction or another gains the upper hand,
a
constitutional law that
is
seen
as too
crucial
a
political weapon
to be
left
to
nonpolitical judges,
and
certainly
too
important to be left to the actual Constitution.").' See,
e.g..
New York v. United States, 505 U.S. 144, 174-77 (1992) (holding that theTenth Amendment prohibits Congress from "commandeering"
the
functions
of
statelegislatures); Harmelin v. Michigan, 501 U.S. 957, 994-96 (1991) (Scalia, J., plurality opinion)(holding that
a
prison sentence
of
life without the possibility of parole did not constitute "cruelor unusual punishment" under the Eighth Amendment for non-capital offenses). The opinions ineach of these cases were based heavily on historical arguments.* Robert
W.
Gordon,
The
Past
as
Authority
and as
Social Critic: Stabilizing
and
Destabilizing Functions of History in Legal Argument, in
THE HISTORIC
TURN IN THE HUMANSCIENCES
339, 357 (Terrence J. McDonald ed., 1996) [hereinafter
HISTORIC TURN]
(detailingdifferent political justifications for relying on the original meaning of the Constitution); .see
also
LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM
139-43 (1996) (detailing the
onset of "historicity" within academia including literature, social sciences, and the law).« See,
e.g.,
Giles
v.
Califomia,
128 S. Ct.
2678 (2008) (holding that
the
CalifomiaSupreme Court's theory
of a
certain exception
to the
Confrontation Clause
of the
SixthAmendment was erroneous because it had not been "established at the time of the founding" andwas never articulated by any court until 1985 (quoting Crawford v. Washington, 541 U.S. 36, 54(2004))); Boumediene v. Bush, 128 S. Ct. 2229 (2008) (holding that aliens captured abroad by

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