“The only rescue is the occasional activist saltative leap”

From Conor Friedersdorf in The AtlanticVery interesting stuff to this non-lawyer.

Though liberals are free to disagree with the notion, advanced by Justice Thomas, that precedent matters far less than making decisions in line with the original understanding of the U.S. Constitution, I see no justification for claiming that his interpretive framework is illegitimate, or that he’d be acting as a partisan if he votes down Obamacare. Doing so is consistent with the judicial philosophy he has long avowed. Furthermore, you’d think that proponents of the living Constitution would grant that the nature of interstate commerce and the federal government have both changed significantly since 1930s-era bureaucrats sought to prevent a farmer from growing wheat for personal consumption on his own property. As I see it, the federal government now enjoys significantly more power in relation to the states than ever before, rendering them a less effective repository of countervailing power than they were intended to be; and Congress is more influenced by powerful corporate interests than ever before too.

There is, accordingly, a “living constitution” argument to be made for “adapting” the commerce clause in order to reestablish what many would regard as a more prudent distribution of power among the federal government, the states, and the people. I don’t expect any of today’s conservative justices would make that argument. To do so would be contrary to so much of what they’ve avowed. But liberals should recognize that what’s stopping them is the extent to which they’ve not yet embraced certain widely held liberal attitudes toward constitutional interpretation.

As Will Wilkinson puts it:

Were we to make slavish deference to precedent universal law, ala Kant, we’d end up with what a sort of path-dependent judicial drift — tiny but unavoidable interpretative mutations piling up until the law ends up in places no one finds desirable. Interpretative frameworks that push the law toward substantive ideals save us somewhat from the problem of arbitrary, path-dependent drift. But they create another kind of arbitrary drift, as rival frameworks push the interpretation of the laws in incompatible directions. This can, again, leave us in stupid places no one ever had in mind. The only rescue is the occasional “activist” saltative leap that either ignores or radically reinterprets precedent in order to restore to the law the coherence of principle, for a while at least.

“Originalism” is not a non-activist interpretative framework. An “originalist” framework applied to the interpretation of non-originalist precedent predictably generates “activist” decisions. That is why, as I’ve argued before, originalism is just one among many philosophies of the “living constitution”, and does not differ in fundamental method from the progressive “second-bill-of-rights” philosophy, which attempts to reinterpret the law such that over time the accumulation of progressive precedent codifies certain basic rights unfortunately omitted from our antique constitution. Both philosophies seek to rewrite the law, as it now stands, better to conform to some external ideal.

The left’s judicial strategy is presently threatened least by those on the right who are most consistently conservative and averse to activism. Hence the new-found respect for those qualities.

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