The Constitution that I interpret and apply is not living, but dead, or as I prefer to call it, enduring. It means, today, not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.
The choice of "fundamental values" by the [Supreme] Court cannot be justified. Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other. The judge must stick close to the text and history, and their fair implications, and not construct any new rights.
At no time, at no place in solemn convention assembled, through no chosen agents, had the American people officially proclaimed the United States to be a democracy. The Constitution did not contain the word or any word lending countenance to it.
As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.
Ours is the job of interpreting the Constitution. And that document isn't some inkblot on which litigants may project their hopes and dreams.
The notion of a rigid separation between church and state has no basis in either the text of the Constitution or the writings of our Founding Fathers. On the contrary, our Founders’ political views were strongly informed by their religious beliefs.
Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text. The encounter with the Constitutional text has been, in many senses, my life's work.
It is time... to end the long-standing and unproductive methodological debate over 'originalism' versus 'dynamism' or 'evolution' and focus instead on how, as a substantive matter, we should interpret the Constitution in the twenty-first century, and what it has to say on questions unimaginable to our eighteenth-century Framers.
Original intent is a necessary fiction that jurists have invented to get a handle on the Constitution.
Every Constitution embodies the principles of its framers. It is a transcript of their minds. If its meaning in any place is open to doubt, or if words are used which seem to have no fixed signification, we cannot err if we turn to the framers; and their authority increases in proportion to the evidence which they left on the question.
I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that's what it says, that's what it says.
Now the Senate is looking for 'moderate' judges, 'mainstream' judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?
Values that I would be enforcing if I were a judge are not just my values, that I am not striking something down simply because I don't like it. That is a countermajoritarian aspect of our system of government. I would start with the text.
