American Constitutionalism in Historical Perspective (packet)

Ely: Noninterpretative: respects human rights but skeptical about role of controversial arguments over the meaning of human rights. Court should intervene in service of rendering the process more fairly representative of constituents.

1. 
   Fan of Brown v. Bd of Ed b/c blacks impacted by this legislated d/n have opp to rep themselves fairly in rep process. Defends affirmative action: renders process more fairly representative.
   
2. 
   Roe v. Wade is skeptical of b/c women are a majority and have opp to gain protection via democracy. Unborn fetus is the unrepresented constituent.
   

Originalist: d/n get involved in human rts, just read history narrowly, fixes forever the meaning of the constitution by restricting judicial J to founders’ intent.

1. 
   Object to Brown: wrong for court to strike down segregation b/c accepted by founders. (Berger).
   
2. 
   Appeal: no political theory, just history- an escape from normative values
   
3. 
   Criticisms:
   
   1. 
      Why should founders’ intent be the measure of the meaning of equality in our time, particularly when it is so difficult to define. A body of people whose deliberations were kept secret until 1830’s.
      
   2. 
      Requires a denial of interpretive history
      
   3. 
      Massive fit problems: no judge could be appointed believing this. Bork was incoherent b/c was originalist but agreed w/ Brown—so extremely inconsistent—incoherent position (Scalia and Thomas)
      

Issues that haven’t been addressed by above philosophers:

1. 
   What are rts? Rawls, Dworkins’ views are liberal and egalitarian. But what about libertarians who think that rt to property is basic rt—Epstein.
   
2. 
   Nothing defeats court skepticism: depends on ppl on the court
   
3. 
   Underenforcement of human rts: Larry Sager, Sunstein: judiciary can enforce some human rts (free speech, religion, privacy) but a lot of human rts issues that judiciary c/n handle. Should leave enforcement to elected branches of govt (Pres and Congress). Defend judicial review but try to allow Congress to have impt role. Congress can strike things down that court c/n.