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Tuesday, July 19, 2005

FISHING: Law prof Stanley Fish offers wise reflections on the Supreme Court distinction that matters most: between judges who would interpret the Constitution and those who would rewrite it. Fish is obviously not the first to make this distinction, but he brings much-needed clarity to the discussion when he argues that
the only coherent answer to the question "What does the Constitution mean?" is that the Constitution means what its authors intended it to mean.
All of the alternatives to that, says Fish, come down to rewriting the Constitution.
Rewriting is what is being done by those who talk about the "living Constitution" and ask, "Why should we be constrained by the dead hand of the past?" This makes no more sense than asking, "Why should we be constrained by wills and contracts?"
Brilliant analogy. When a will or contract is ambiguous, courts routinely look to determine the (deceased) intentions. Courts do not ask, "Given how life has changed since the document was drafted, we can assume the deceased might today hold different views." If there is no valid reason to doubt that Dad meant to leave Junior out of the will, the court must not say, "But Dad's decision was unkind, and he probably would have changed his mind by now, so in the name of fairness we rule that Junior must be given a cut of Dad's estate." Fish also makes the good point that even the best Supreme Court bets have a way of falling short of Gibraltar: "You can hope the performance you see today predicts the performances of years to come. But don't bet on it."