The question of the proper scope of a constitutional theory connects with another much discussed issue, what level of generality of the framers' intentions should guide judges in interpreting the Constitution. If you ask what the intention behind the equal protection clause was, you will find that it was both to benefit blacks in some ways but not others and to promote an ideal of equality that may be inconsistent with aspects of the framers' more specific intention, which was to entitle blacks to civil but not social equality with whites. The choice of which intention to honor determines for example whether the Supreme Court was correct to outlaw racial segregation in public schools. But it is a question about the level of generality of intention behind a single clause. To pass beyond that to intentions concerning the Constitution as a whole, a sheaf of documents written at different times and covering a variety of discrete topics--to suppose it possible to extract a single unifying intention or theme from that sheaf--is to enter cloud-cuckoo-land. This is not disparage the holistic approach but to distinguish it from one that depends on the framers' intentions, whether broadly or narrowly construed. Yet it is a considerable demerit of the holistic approach, in the eyes of many legal professionals, that it cuts free from those intentions.
Richard A. Posner, Overcoming Law (Cambridge: Harvard UP 1995), 179.
No comments:
Post a Comment