We all agree that resolving constitutional questions
should start with and rely extensively on the 1788 Constitution, as amended.
Giving substantial weight to that text both is required by our democratic
consensus and fulfills pragmatic and rule-of-law goals, limiting judicial
discretion to only what is necessary for constitutional government. Still-challenging
questions of degree and appropriate limiting principles for that discretion dominate
the constitutional discourse among judges, academics, and lawyers. But the
public needs to be better informed of the nature of that debate.
In a more-genuine public debate, presidential
candidates would not pledge to "put judges . . . on the bench, . . . who will
strictly interpret the Constitution," as George W. Bush did in 2000, nor would senators
brand a nominee unfit to serve because she believes "judges may determine what .
. . words [of the constitutional text] actually mean," as Orrin Hatch said of Justice
Kagan at her 2010 confirmation hearing. Instead, even conservatives might ask
judicial candidates to describe the "principles that would limit their
discretion when fulfilling the duty to articulate and apply unenumerated constitutional
rights"--engaging a genuine issue. All participants in that debate would be whole
constitutionalists of some sort, with conservatives likely advancing stricter sets
of principles to govern judicial discretion. Changing the discourse in that way
could lessen the taint of outright illegitimacy of each side's argument in the
eyes of the other. And so reframing the public debate as competing--yet
legitimate--arguments could diminish outrage from the extreme right and left, enhance
the reputation of the Court and judicial appointments process, and improve the
quality of public constitutional discussion in general.
Because to believe the federal constitution imposes limits
on states' regulation of guns one must also reject strict construction, America
may be ripe for that sort of progress.
Darren
Latham, associate professor at Florida Coastal School of Law in Jacksonville,
teaches constitutional law, comparative law, and international commercial law
courses and writes on constitutional history and theory.
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