It's Alive: Can Elena Kagan save the legal left?

[usregimechange]

In 1997, Justice Antonin Scalia released a slender volume setting forth his judicial vision. In addition to defending originalism, Scalia sought to disparage what he viewed as the then-dominant mode of interpreting the Constitution. “The ascendant school of constitutional interpretation affirms the existence of what is called The Living Constitution, a body of law that ... grows and changes from age to age, in order to meet the needs of a changing society,” Scalia wrote. “And it is the judges who determine those needs and ‘find’ that changing law.” Scalia proceeded to express disgust at the widespread acceptance of living constitutionalism among not only the legal elite, but also ordinary citizens: “The American people have been converted to belief in The Living Constitution, a ‘morphing’ document that means, from age to age, what it ought to mean.”

Today, a mere 13 years later, it would appear that many Americans have changed their minds—and in a way that surely cheers Scalia. Since 2003, Quinnipiac University has conducted a poll asking respondents which theory of constitutional interpretation “comes closer to your point of view”: Should the Supreme Court “only consider the original intentions of the authors of the Constitution,” or should it “consider changing times and current realities in applying the principles of the Constitution?” Although the question’s phrasing contains considerable infelicity, recent responses nevertheless suggest that Americans increasingly embrace originalism over living constitutionalism. In July 2008, 52 percent of respondents favored living constitutionalism and only 40 percent favored originalism. When the poll was conducted in April of this year, however, originalists outnumbered living constitutionalists, 49 percent to 42 percent.

Originalism’s influence is also plainly on the rise where it matters most immediately—at the Supreme Court. Two years ago, in District of Columbia v. Heller, among the Court’s most significant decisions of the last decade, the justices divided 5-4 in determining that the Second Amendment protects an individual’s right to possess firearms in some circumstances. The justices were united, however, in disputing the Second Amendment’s meaning on what was at least purported to be primarily originalist terrain—a circumscribed jurisprudential exchange that would have been difficult to imagine until recently.

http://www.tnr.com/article/book-and-arts75628/its-alive?passthru=YjFiOGNmZGQ4ZmNhNDNiNjU1NzIxYWVkYzg1MWE2NGQ


Let us hope.

[usregimechange]

1. She can start by obliterating originalism at the hearing

Not that she would do that, I would settle for doing that when she is seated.

[mmonk]

2. I'm not on board with Kagan.

At this time in history, we need a staunch defender of constitutional checks and balances and constitutional rights. We need that person never to compromise that for who she works for or any political establishment or party.

[usregimechange]

3. Amen but no telling what she will do on SCOTUS, she will be, for the first time, working for no one

[mmonk]

4. But we already know what she is willing to do.

That's a big enough character flaw to me when you are dealing with the rights of human beings.