SCOTT SIMON, host:
A justice on the US Supreme Court is not required to have any experience as a judge or even a lawyer. This week, Senate Judiciary Committee Chairman Arlen Specter and the ranking Democrat, Patrick Leahy, said that they could be satisfied with a nominee with no such credentials. Senators are divided over whether the next Supreme Court justice should base his or decisions on the Constitution's original meaning, a literal reading of what the original framers and subsequent amenders intended. Now in the years since the Constitution was ratified in 1787, then amended by the Bill of Rights four years later, urgent issues of national consequence have moved the Supreme Court to resolve cases that the framers never confronted--school integration, for instance; voting rights for women; pornography; abortion. And justices have widely interpreted the meaning of particular words or phrases in the Constitution.
Jack Rakove is a professor of history and political science at Stanford University and author of the book, "Original Meanings: Politics and Ideas in the Making of the Constitution." He joins us from Stanford.
Professor Rakove, thanks very much for being with us.
Professor JACK RAKOVE (Stanford University): I'm glad to be here, Scott.
SIMON: How do you define original meaning?
Prof. RAKOVE: Original meaning is a theory of constitutional interpretation, and it says that when an interpreter of the Supreme Court comes to resolve some puzzle about the meaning of the constitutional clause, his goal and indeed his obligation should be to interpret that clause as close to what its adopters thought they were doing as he or she possibly can.
SIMON: How would the framers have reacted to something like the original Supreme Court decision in Brown vs. the Board of Education?
Prof. RAKOVE: You have to think about the original constitutional design of 1787. And then you have to think about what's added to that design after the Civil War, because it's often argued by scholars that we've really had two foundings in this country. One was the basic founding at the time of the Revolution, which organizes the government. But then major changes come about as a consequence of the Civil War. And Chief Justice Warren and his brethren on the bench basically look at this historical material and decide that the historical evidence, however it was parsed and divided, simply, you know, could not come to grips with the fundamental question of the justice or injustice of segregation. So when Warren writes the opinion and convinces, with a lot of hard work and arm-twisting and, you know, in all his persuasive powers the court to issue a unanimous opinion, in effect the court is knowingly turning its back on originalism. It's knowingly turned its back on the historical evidence and tried to reason for more general principles.
That's one reason why the Brown opinion remains very controversial is legal circles. I mean, not that the case was wrongly decided, because everybody agrees it was the right thing to do, but because the opinion itself, you know, many scholars have argued, was insufficiently grounded in existing law or didn't deal sufficiently with the history, which was again a complicated history.
SIMON: One of the things that I find useful when the Supreme Court begins to hand down a raft of decisions is, as you read through them, to often notice that they're not really deciding something on what we in the outside world consider the substance of a case so much as they are citing precedent and license with previous courts. To what degree do courts then have to enter into that kind of interpretation? What becomes their importance of precedent?
Prof. RAKOVE: Well, the whole debate of originalism, in a sense, is a debate about just how important precedent is. 'Cause after all, the whole theory of originalism says if previous courts or previous Congresses had been more faithful to the original intent, then they would've decided those cases otherwise.
In some ways, this is really the theory of the conservative movement that's known as the Constitution-in-exile school. I mean, they basically argue that the decisions of the New Deal court that finally allowed the New Deal legislation to take effect were all, in effect, wrongly decided, and the Constitution has been in exile from its true self for the last 70 some years--60, 70 years.
SIMON: You mention in the book that one of the things that people who are interested in original meaning have to decide for themselves is are they citing the importance of original meaning because they believe that the founders had clearer ideas about democracy that were uncluttered by the politics of our time or, for that matter, their time too.
Prof. RAKOVE: I personally think that all constitutional interpretation should at least begin by paying some attention to the original intentions, the original understandings of the founding period or, for that matter, the post-Civil War period. But I think the framers, in a sense, would think we had really let them down if we trusted their judgment more than our own, because after all they were living a great political experiment. And I think they wanted to lay a foundation upon which later generations could build and that indeed for us not to trust our reason would be a denial of everything the American Revolution originally meant.
SIMON: Jack, thank you very much.
Prof. RAKOVE: Well, good to talk to you, Scott.
SIMON: Jack Rakove, author of "Original Meanings: Politics and Ideas in the Making of the Constitution." He teaches history and political science at Stanford University.
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