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08/29/2017

Rob Natelson on Bruce Ledewitz on Originalism
Michael Ramsey

At the Independence Institute, Rob Natelson: A Response to a “Living Constitutionalist” (commenting on this column by Bruce Ledewitz: 'Trinity' case marks end of originalism).  From the introduction:

... I believe Professor Ledewitz’s article illustrates how even intelligent and mature law professors usually are unprepared for the tasks of writing and teaching about the Constitution.

Most law professors focus, both in study and teaching, on Supreme Court cases. Most know little about the Founding Era record. Most lack the historical training needed to assess that record. Very few have studied the law of the Founding Era. Very few are familiar with the materials the Founders studied during their education, especially the Greek and Roman classics. Exceedingly few law professors are competent in Latin, the Founders’ second language.

Finally, law professors often corrupt their understanding of the Constitution with their own political preferences—either by claiming it means whatever they want or by underestimating it because it doesn’t give them what they want. These problems afflict faculty even at the nation’s most prestigious law schools.

Following are excerpted passages from Professor Ledewitz’s article with a corrective response appended to each excerpt...

Excellent points follow (though perhaps he is a little harsh on law professors?).  Here's the last one: 

Professor Ledewitz: “As the Trinity Lutheran case shows, we need not be ruled from the grave. All of our law, but especially constitutional law, should be interpreted from our own perspective.”

Answer: Is Professor Ledewitz saying that judges should re-write laws to their liking simply because some or all of their sponsors are no longer around? That is a prescription for oligarchy—and the Constitution was designed to protect us against that.

Of course, Americans could have adopted a British-style unwritten (living) constitution. That would have permitted a sufficiently determined cabal of politicians and judges to change the rules. Although academia is filled with modern-day Tories who would be happier in such a system, most Americans, whatever they think of particular judicial holdings, seem quite content to have our Constitution fixed and in writing.

Earlier comments by Randy Barnett and me on Professor Ledewitz's column are here and here.