To the Editor:
In his review of Antonin Scalia’s A Matter of Interpretation: Federal Courts and the Law [June], Franklin Hunt’s disagreement with well-accepted principles of constitutional interpretation begins with a distortion of Justice William O. Douglas’s much-quoted hyperbolic description of the meanings to be drawn from several articles of the Bill of Rights as a whole. This distortion is in keeping with the conservative tradition of disguising disagreement with results by disingenuously claiming to follow principles.
Justice Douglas did not simply say “penumbras, formed by emanations” in finding a right of privacy in the Bill of Rights sufficiently broad to hold unconstitutional Connecticut’s law forbidding the use of contraceptives in Griswold v. Connecticut. What the Justice said was that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that give them life and substance,” meaning that conclusions can be drawn from the several articles as a whole and that one of these conclusions is that each of us has a right of privacy that government cannot invade.
Apparently, because the founding fathers had little knowledge of birth-control practices, or perhaps of evolving life-styles, circa 1966, Mr. Hunt believes Griswold was wrongly decided and that, therefore, government can prohibit the use of contraceptive devices—a conclusion most thinking people today would find appalling.
The lesson to be learned from Mr. Hunt’s review is that judges should eschew rhetorical flourishes in decision-writing.
Avern Cohn
United States District
Court Judge
Detroit, Michigan
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To the Editor:
In his review, Franklin Hunt asserts that “liberal reviewers” have largely ignored Justice Scalia’s “crucial” thesis. As Mr. Hunt explains, Justice Scalia believes that the real threat to the Constitution was once posed by judges who created constitutional rights out of the vague and open-ended provisions of the Constitution that were not supported by a majority of the public. Now, his view is that the greater threat to the Constitution comes from judges who, in deference to current majoritarian preferences, disregard specific protections contained in the Constitution.
This is a strange argument for Justice Scalia to make, since the defining characteristic of his judicial philosophy in his ten years on the Court has been an almost total deference to legislative and judicial action at the federal and state level. Only rarely has he voted to strike down laws or their applications, and those votes have become especially rare in recent years. In exercising that judicial deference, Justice Scalia has, of necessity, either adopted or endorsed exceedingly narrow constructions of most of the provisions of the Bill of Rights and the Fourteenth Amendment, including the procedural protections for criminal cases.
Justice Scalia plainly believes that the actions of governmental institutions in our country reflect the will of the majority of the public, which a judge has a responsibility to respect except in the most extraordinary cases. Since his interpretations of specific constitutional provisions are strongly influenced by this fundamental attitude, it is difficult to sympathize with his complaint that judges are now failing to enforce the specific protections of the Bill of Rights because of an undue deference to the will of the majority.
Noah Eliezer Yanich
Rochester Hills, Michigan
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To the Editor:
Whatever other advantages the traditional casebook and Socratic methods of teaching in law school may have, they are woefully deficient in imparting legal and moral theory. One is forced to study the law in isolation, learning the intricacies of what the law is and how to apply it but never understanding why it is thus. Amazingly enough, most students graduate from law school without having read the Magna Carta, John Locke, Montesquieu, Edmund Burke, The Federalist Papers, and other seminal works that provide the conceptual and philosophical framework of our legal system. As far as most law-students know, every judicial opinion they read is the intellectual brainchild of the judge who wrote it. Thus, most students leave law school with the notion that all law is politics.
Justice Scalia’s textualism is dependent upon a baseline foundation of legal history and theoretical knowledge that is entirely unknown to the overwhelming majority of legal practitioners. If he and other conservatives were truly serious about stamping out rampant judicial activism and spurious legal theories, revamping the traditional law-school curriculum to include mandatory legal history and philosophy courses would be a good place to start.
David Marhoffer
Scottsdale, Arizona
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Franklin Hunt writes:
Avern Cohn says that Justice William O. Douglas’s metaphors of “emanations” and “penumbras” in his opinion in Griswold v. Connecticut were only rhetorical excess, and what he was really doing was reading the Bill of Rights as a whole. Well, stripped of “emanations” and “penumbras,” this is what Douglas actually said: the guarantees in the Bill of Rights against quartering troops in private homes in peacetime, unreasonable searches, coerced self-incrimination, and abridgement of free speech and press mean that the Constitution protects sexual privacy. End of story. Judge Richard Posner has called Douglas’s opinion a “slipshod” effort.
Judge Cohn does not claim that the framers of the Constitution wrote a guarantee of sexual privacy into the Bill of Rights (being, as they were, ignorant of 20th-century birth-control practices and evolving life-styles), but he nevertheless justifies Griswold on the ground that “most thinking people today” would be appalled if there were no such guarantee. This is the “morphing” Constitution at work.
Though the Constitution does not guarantee every liberty, this hardly means that we are at the mercy of government, since people can get what they want through democratic politics. In fact, by the time of Griswold, anti-contraception laws had been repealed in every state but two. If Justice Douglas had invalidated the law, because, as the birth-control clinics argued, the political system in Connecticut had broken down and offered no democratic recourse or because the law was selectively enforced to the detriment of the poor, we would have had a far different and more satisfactory case, one that would have spared us the free-floating right of sexual privacy that has led to so much bitterness and anguish, notably over abortion.
It is easy to see that Noah Eliezer Yanich does not like the way Justice Scalia decides cases, but he either misunderstands Scalia or, like many liberal critics, thinks he is disingenuous. For Mr. Yanich it is Scalia’s “almost total deference” to the will of the majority which has led to his “exceedingly narrow constructions” of the Bill of Rights. But Scalia believes that other than the constraints imposed by construing the Bill of Rights as it was originally understood, the majority should be free to do whatever it wishes, be it wise or foolish.
More importantly, Mr. Yanich thoroughly misunderstands Scalia’s warning of a new danger of judges overriding clear and specific constitutional protections which the majority no longer cares about. Scalia is not saying that judges have become restrained and deferential toward the majority, but that the majority, having learned to mistrust judicial activists, is capturing the courts through the heavily political selection process. Consequently, the courts have begun to adopt the majority’s views, disregarding plain but unpopular constitutional guarantees, not out of deference to the majority but because they now reflect its values.
I agree with David Marhoffer that it is remarkable what is not taught in law schools. To the amazement of foreign students, constitutional law courses do not even teach the text of the Constitution itself. All instruction is based on cases. But I do not think Mr. Marhoffer should count on philosophy to save us from rampant judicial activism or spurious legal theories; legal philosophies exist to support any preferred result. On the other hand, a serious course for lawyers in economic analysis would be of universal benefit. Lawyers and judges might then have some idea of the consequences of what they do.
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