I don’t really disagree with the New York Times editorial today on Eldred v. Ashcroft. I do, however, find it amusing (and since the NYT is perhaps our leading print medium, somewhat ironic) that its position on the power of legal text to constrain and control behavior seems to be determined more by its preferred outcome than by any principled approach to interpretation.
Today the NYT editors, adopting a sage and profound pose, seemed to say that interpretation was difficult but possible, and courts were up to the task.
It is always difficult for a court to determine the precise meaning of broad constitutional phrases like “limited times” or “cruel and unusual punishment,” or “a speedy trial.” But at some point the Constitution’s words are violated. The court should hold that the latest extension goes too far.
The NYT editors, in short, can look deep into the heart of “broad constitutional phrases” and discern clear limits that should constrain policymakers and control courts. Ten days ago, however, those same editors looked at a clear statutory command that barred substituting candidate names on ballots within 48 days of an election — language that to those of us less wise and erudite than NYT editors or New Jersey judges did not appear at all ambiguous — and concluded that being bound by that language could result only from distasteful “legal wrangling.”
John, that’s an hilarious observation and seems especially apropos to me given that an acquaintance of mine — who agrees with the Court’s full line of substantive due process cases stemming from Griswold and Roe — thinks the Court would be crazy not to strike down the Sonny Bono CTEA.
“Obviously the Congress is clearly limited by the language ‘limited times’!” he shouts. (Incidentally, I agree with that.)
Of course, he wasn’t singing the same tune when the Court struck down the Violence Against Women Act on Commerce Clause grounds.
“Congress knows best what affects commerce!” he shouts. The obvious retort is that whatever the Congress knows (which doesn’t seem to be much these days), the Constitution in any event doesn’t delegate to the First Branch the responsibility of interpreting the phrase “limited times” or the word “commerce.” See generally Marbury v. Madison.
There was a great post on Stuart Buck’s weblog awhile back pointing out the hypocrisy of the “noninterpretivist” Yale Law Professor Bruce Ackerman, who believes we have a “living Constitution” but recently argued (in the New York Times, I believe) that the clear text of the Constitution constrains George Bush from acting unilaterally vis-a-vis Iraq. “How textualist!” Buck exclaimed. “How unlike anything Ackerman stands for!”
Ah, but what can ya’ do with the result-oriented Left?