Comments on: The Founding Fathers Are Dead

By: Michael

Michael — Fri, 11 Nov 2005 15:19:34 +0000

I thought you might be trying to yank someone’s chain! I appreciate your general point, and you are correct that there is an important difference between respecting precedent (stare decisis) and discerning intent when applying law. What ties them together, to my mind, is a concern for the law as something with a history and a tradition. The delegates to the Constitutional Convention were a quite varied group of inspiring and despicable men whose “intent” was hardly just one thing and is, accordingly, hard to figure out. But I feel more comfortable with judges (not to mention legislators and executives) who have an interest in exploring that intent (as well as the political and sociological conditions that framed that intent) than Constitutional fundamentalists (i.e., strict constructionists) who treat the Constitution as if it were a simple statement of fact. How to best spend one’s time–figuring out the intent of the signatories to the Constitution or the intent of Harry Reid–is a tough question and has to be decided on a case-by-case basis. I just don’t think that founders are dead (add appropriate Faulknerian note here).

By: derek

derek — Thu, 10 Nov 2005 19:37:08 +0000

Thanks. The real reason I wrote this was hoping someone would argue the other side. I do see value in having respect for precedent and maintaining some continuity in the law. Though stare decisis is about taking into account what previous courts thought, not the founding fathers. I guess it is the role of the courts to interpret the lawmakers wishes, and the founding fathers were the lawmakers in the case of the Constitution. But these men were politicians with probably about as many different opinions and disagreements as politicians today. We have a hard enough time clarifying the opinions and intentions of living lawmakers, to try to decipher the intentions of those dead for 2 centuries seems seems problematic and inexact. I guess I think that the opinions of current and future generations are more important and worthy of debate and consideration than those of generations past.

By: Michael

Michael — Thu, 10 Nov 2005 15:04:35 +0000

I care. The Founding Father stuff does get out of hand and, being all for Constitutional interpretation, I am by no means a subscriber to "original intent," but . . . . Don't you see some connection between being concerned about the motivations of those who drafted the Constitution and having a respect for precedent? Stare decisis was a buzz word in the Roberts nomination hearings and is a key idea in the run up to Alito's hearings, and with good reason. Constitutional law without some concern for precedent and intent gets dangerous. Roe v. Wade could not have been decided as it was if the Supreme Court did not have some care as to what was intended in the Constitution and it would not stand if we all did not have some respect for what was said by certain dead men such as Justices Thurgood Marshall and Harry Blackmun.