Remarks given to the regional meeting of the American College of Trial Lawyers at El Conquistador Hotel, Fajardo, Puerto Rico on March 3, 2006.

I commence my remarks by extending my warmest welcome to those visiting us from outside Puerto Rico. I hope you will let us share our island with you. Puerto Rico is small but it has a big heart, so take full advantage of it while you are here.

I also want to thank you for inviting me to address you. It is not often that lawyers voluntarily gather to hear what I have to say on any subject. Even more, the fact that anyone is willing to give up any time away from this beautiful setting to listen to me is a big boost to my ego. I must confess, however, that being a realist, I hedged and brought along my wife and law clerks, just to be sure I had some captive audience.

The theme that I have chosen to speak about today, which I have entitled A Clash of Legal Cultures, does not relate to such a current topic as the perceived differences between the western and Muslim worlds, or even such a legal subject as a discussion of issues of comparative law involving the common law and civil law systems, although I may tangentially touch on a related point later in my presentation. Rather I intend to address my remarks to the clash of the two home-grown legal cultures that have evolved in the United States regarding the appropriate methodology in the interpretation of constitutional issues before the courts. In this respect, I am inspired by the comments of another recent visitor to our shores, Supreme Court Justice Antonin Scalia, who addressed the local chapter of the Federalist Society several weeks ago on the subject of his philosophy of constitutional interpretation, which he self-described as “originalism,” or “strict constructionism.” Perhaps in keeping with today’s title, it could appropriately be labeled “legal fundamentalism.”

In this respect, he was quoted by Jonathan Ewing of the Associated Press, in an article that appeared on page 14 of the San Juan Star on February 15, 2006. “The Constitution is not a living organism,” “you would have to be an idiot to believe that.” “It is a legal document. It says something and doesn’t say other things.” There can be no room for personal, political or religious beliefs, Justice Scalia indicated. Proponents of the living Constitution want matters to be decided “not by the people, but by the Justices of the Supreme Court.” “They are not looking for legal flexibility, they are looking for rigidity, whether it’s the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable,” he is quoted as saying.

Perhaps before I go any further I should state for the record that nothing that I say here today should be attributed to any other idiot than myself. I realize that it is somewhat hazardous for a circuit judge to disagree publicly with a Supreme Court justice, but I’m hoping that Justice Scalia will remember, if by chance he comes across my remarks, that we are both duck hunters, and that I mostly speak in that capacity today. Of course, if the truth be known, his chagrin with me may very well be prompted not by what I am about to say, but by the fact that I am a much better shot than he.

Those important issues having been clarified, let me get to the crux of the matter at

hand. Let me start by saying that I believe it is an unfortunate circumstance that the ongoing debate about the judicial process and about what is the appropriate standard that judges should follow in deciding constitutional issues, typified by Justice Scalia’s slip of the tongue (at least I hope that is what it was), is fueled to a large extent by ideological imperatives related to Roe v. Wade, 410 U.S. 113 (1973), and the abortion issue. I think it is telling that Justice Scalia in speaking about his originalist views specifically zeros in on that very subject as part of his reported remarks. It is, of course, no secret that this has been a recurring theme with him for some time, and naturally, he is entitled to his opinion, which I am well aware is entitled to considerable weight and deference (slip of the tongue aside). However — although the abortion issue is obviously an important issue, particularly to women and religious groups, and of course also to the decisional process, and I do not belittle its importance in any way — I believe that unduly focusing on the substantive content raised by that issue (that is abortion, with its religious and ethical connotations) distorts the larger field of constitutional interpretation and the fundamental questions raised by Justice Scalia’s appeal to originalism.

Certainly, the Supreme Court has been deciding constitutional issues, of diverse and varied natures, by going outside the four corners of that “legal document,” as my learned colleague refers to the Constitution, since day one, without such a major and unrelenting fuss being made about strict constructionism or the lack thereof, as we now have. Thus, I contend, it is the abortion issue that has energized the forces, not the question of the appropriate interpretative methodology. In their attempt to overturn Roe and win a reversal of the specific issue of abortion rights, the opponents of Roe blithely ignore what the Supreme Court has been doing since its inception. The associational rights of people is not mentioned in the Constitution or the Bill of Rights; the right to educate a child in a school of the parents’ choice is also not mentioned; nor is the right to study any particular subject or any foreign language; or the right to keep the state out of the marriage bed in dictating contraceptive practices. Yet the First Amendment has been construed to include all of these rights. And this list of “unspecified” yet well-established constitutional rights is not exhaustive.

The argument that Roe v. Wade should be overturned on the ground that it is contrary to the “originalist” or “strict constructionist” methodology of constitutional interpretation, if it prevails, will not just bring about the reversal of a case (the particular merits of which one can argue one way or the other without bringing down the house). I am more concerned with the aftermath of a reversal of Roe v. Wade, if it establishes “originalism” or “strict constructionism” as the law of the land by which all constitutional issues will be measured. Will the originalists then promote the reversal of those rights recognized under the First Amendment, but not specified, such as those mentioned above? There is not much question in my mind that if this self-imposed constitutional straight jacket is accepted by a majority of the court, it will result in a era of constitutional interpretation with totally unworkable standards. For attempting to fathom what was in the minds of the Framers in the 18th century while situated in the 21th century is no more than just an elusive illusion.

Such a wild goose chase, pardon the hunting pun, can never have been intended by the Framers. There should be no worries about a “living” constitution with such a suffocating standard of constitutional interpretation. It is my opinion, not only that the strict constructionist proposal goes against the Framers’ original intention, as is demonstrated by the open-ended language of many of the key provisions of the Constitution and several of its amendments (which I shall discuss presently), but additionally, the history of constitutional decision-making in the United States clearly shows that it is an extreme doctrine which has never been practiced by the Supreme Court in the manner proposed, notwithstanding the lip service that it receives when conveniently needed.

Two amendments, the Ninth and the Tenth come to mind when open-ended language is considered. The Ninth Amendment states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Thus, there are rights that are not specified in the Constitution, or the Bill of Rights, which exist and must be declared by someone. This open-ended language would appear to counter the arguments made to the effect that the courts and not the Framers have been creating rights that are not sanctioned by the Constitution. When all other arguments fail, the best tactic is to pick and choose whatever parts suit your position, and interestingly enough, that is exactly what the originalists, led by Justice Black (see his dissent in Griswold v. Connecticut, 381 U.S. 479, 511 (1965)) have done with the Constitution. So much for strict constructionism.

Although it is claimed that changes in public opinion or mores are irrelevant to interpretation of the Constitution, and of course at first glance this seems like a plausible point, the originalists not only use this argument as a shield, but also as a sword (well, at least as a small penknife), with a considerable component of populist appeal (and demagogy, I believe) in this contention. After all, it will appear logical to the unwitting common citizen that judges sworn to uphold a written Constitution be made to “stick” to what “it says” in that “legal document.” Why should judges, who are not elected by that Joe or Jane citizen be able to overturn the actions of elected officials, when nowhere in the four corners of the “legal document” does it say that judges can do that? The problem is that for the strict constructionists, this is a self defeating argument, for how can they argue that position unless they are also going to argue that Marbury v. Madison, 5 U.S. 137 (1803), should be reversed. For, isn’t Marbury v. Madison “living proof” that the Constitution is “living,” for where in the Constitution is the concept of judicial constitutional review to be found in specific language? The answer is nowhere. This concept was a judicial creation, uniquely American. It didn’t exist anywhere else in the world until recently, and doesn’t exist in Great Britain even today, so how could it have been in the Framers’ minds?

The proposition that the “legal document” should be interpreted for what it says sounds good on its face, but it is an argument that falls on its face upon closer analysis. For we all know as lawyers that very few legal documents are all inclusive and foresee all possible issues that will arise between the parties beforehand. Which usually means that even the simplest legal document has to be interpreted by extraneous evidence. Now that is the case with a “simple” document, what about complex ones, like a Constitution written over 200 years ago and meant to apply universally to varying circumstances and epochs? Can we possibly rely on just the conditions that existed at the time of its ratification in applying it to the problems of today’s society?

When one reads the Constitution, one finds specific provisions, for example, that the President must be native born and 35 years old to qualify for the office. Clearly, someone who is 34 years old at election time does not qualify. Thus a strict, literal reading of that provision is clearly warranted. But what about someone born in Puerto Rico, where we are since 1917 U.S. citizens at birth? Can someone who meets the age requirements move to New York and run for President as a native-born citizen? Where in the four corners of the “legal document” or the Federalist Papers would an originalist justice look for the answer to that originalist conundrum?

Questions of interpretation of the Eighth Amendment, which as you know prohibits “cruel and unusual punishments,” or other open ended clauses, such as the due process or equal protection provisions, are perhaps even better examples. All of these provisions have evolved with the passage of time by way of judicial interpretation, with not much thought being given to second guessing the Framers. What was acceptable punishment in the way of prison conditions in the 18th century would today in many cases be deemed unacceptable and unconstitutional under the Eighth Amendment. The process due to a public employee fired because he or she was in the “wrong” political party under Andrew Jackson’s administration would be considerably different than what the Supreme Court has decided is now required under Perry v. Sindermann, 408 U.S. 593 (1972), or Rutan v. Republican Party, 497 U.S. 62 (1990). The concepts of liberty, equality, and privacy among others, have gone through substantial modifications by reason of the changing values of the American people with the passage of time, which even the Supreme Court cannot help but notice, and thus, its decisions have eventually adjusted to reflect these changes, as I believe they should. This is the way the system was designed to evolve, to be self correcting. Call it a “living Constitution” or whatever you wish, but certainly not a fossilized one.

One thing is certain, no society can afford to remain static, and the law, particularly constitutional law, which is the fabric that holds society together in relative cohesion, cannot lag too far behind society or it runs the risk of becoming irrelevant. Which is not to say that the Supreme Court should render its judgements on the basis of public opinion. But this is not to say that it should be totally oblivious to the changes in its natural environment. The law must change slowly, for this slowness gives stability to society. But slowness is not the same as immobility, which is what is implied in originalism. The problem with strict constructionism is that it is based on the underlying premise that judges don’t “make” law. That is simply not the case, has never has been the case, and if originalism is the touchstone that we must look to, then I say it was never intended to be the case by the Framers. In fact, under the Constitution, all three branches of government, including the executive branch (I refer you to In re Neagle, 135 U.S. 1 (1890)) make law, although obviously this is principally a function of the legislative branch.

In this respect, it must be remembered that the Founders were familiar with how common law courts operated. A substantial number of them were trained in the law. English common law courts “made law” as part of their everyday functions. Thus Marbury was accepted (I refer you to that Court’s reference to Blackstone and the common law courts of justice), even though there was no specific provision in the “legal document” authorizing such a then revolutionary concept, whereby the Supreme Court, an unelected body, could invalidate a law enacted by Congress, an elected body.

The common law background of our constitutional system is of importance in understanding the basic fallacy of the straight jacket of originalism. The U.S. Constitution, one of the first written constitutions in modern history, although serving as a model for many others since then, is clearly distinguishable from most, particularly from those in civil law countries because of its comparative brevity. In most of those countries, their constitutions are lengthy because of the detail with which the various subjects are covered. For example, consider the following gross approximation. The Argentina Constitution has 129 articles spanning 26 pages when printed from the internet. The Venezuelan Constitution is even longer with 350 articles and 82 pages. In comparison, the U.S. Constitution has 7 articles and 27 amendments spanning only 17 pages.

Because of the code background that is traditional in civil law jurisdictions, their constitutions are much longer. In that legal culture, judges have a very limited function, particularly vis-a-vis the “making” of law. In civil law countries, the laws and constitutions usually spell out every right and procedure in detail, and the judges’ function is considerably more limited when compared to that of common law judges. Under our legal culture, judges have a more proactive role in deciding what the law is, and they have traditionally been expected to fill in the gaps to a larger extent when the elected branch accidentally or intentionally leave spaces which the courts must fill. This was known by the Framers and built into the system by them, although not specified as such. In this context, arose the Court’s decision in Marbury.

In this respect, the language of the Supreme Court in United States v. Carolene Products Co. is most instructive and which I find particularly apropos:

prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

304 U.S. 144, 152-53 n.4 (1938). Despite such language, it was not until 1954 that the Supreme Court finally overturned Plessy v. Ferguson, 163 U.S. 537 (1896), a decision as activist as has ever come out of the Supreme Court, lacking any foundation in the provisions of the Fourteenth Amendment, to which a non-originalist Supreme Court added the word “separate” to the “equal” to reach a predetermined result. Had the Supreme Court not finally stepped in almost 60 years later in Brown v. Board of Educ., 347 U.S. 483 (1954), to end segregation, the political branches, so glorified under the mantle of “democratic government” by the originalists, would still be debating the subject.

What I find most disconcerting about originalism is the double standard by which it is applied by its proponents. I would find it more credible if the strict constructionists applied their mantra in a consistent manner across the constitutional spectrum, and with the same vigor, to issues other than just overturning of Roe v. Wade. Frankly, the claim that Roe lacks any support in the language of the Constitution is difficult to square with the originalists’ forthrightness when made by the same advocates that remain impassive and oblivious to Puerto Rico’s unequal condition, justified by a judicial aegis devoid of any constitutional support in the language of that “legal document.”

Democracy, of which I am a firm believer, is not an absolutist solution to every

human problem. Minorities, and those at a disadvantage for inappropriate reasons, can be oppressed by the majority, and thus should be protected under our constitutional system even against that democratic majority. Large portions of our Constitution, particularly the Bill of Rights, are anti-majoritarian. Because the protection of these insular minorities ultimately falls upon the courts, these institutions must face the displeasure of the democratic majority.

Displeasure with Roe v. Wade by activist groups, just as activist as those whom they accuse of activism, would have us reject a time-honored method of constitutional interpretation in favor of “originalism” based on a perceived intent of the Framers, allegedly gleaned from the Federalist Papers and the like. Can one discern the Framers’ original intent from such opaque documents as the Federalist Papers, which were basically propaganda to promote the ratification of the constitution by the states? In my view, the Federalist Papers are about as useful in determining the original intention of the Framers on almost any constitutional issue as the Dead Sea Scrolls are in interpreting the New Testament. I suggest you look into how the Federalist Papers were prepared and who had real input into their preparation. I suggest that you would have some degree of scholarly disappointment in what you would find in that respect. They are not a verbatim record of the debates, and they are not an unbiased statement of the proceedings that preceded the ratification of the Constitution and the Bill of Rights.

If the attack is allegedly on unelected judges deciding the meaning of the Constitution, I pose the question, what is intrinsically more democratic about reliance on such inscrutable evidence as the Federalist Papers? Even if they were an accurate representation of the Framers’ beliefs at the time, does it justify their use for the purpose of determining the solution to constitutional problems that arise 200 plus years hence, problems the Framers did not even imagine existed, much less considered would be litigated before the courts? Looking to such papers for evidence of constitutional intent is like looking through most legislative history, which I believe Justice Scalia himself has referred to as “looking for friendly faces in a crowd” to support you.

If an originalist like Justice Scalia were able today to talk to the Framers and Founding Fathers about his strict constructionist theories and about how he believes they intended the Constitution to be interpreted today, I suspect that people as practical as Benjamin Franklin, who was an inventor and scientist; Thomas Jefferson, who was used to the continuous adaptation and changing circumstances required of a rural society bordering on frontier wilderness, of which he was a part; or a Founding Father such as George Washington, who had recently fought in the Indian and Revolutionary Wars, with all of the inherent uncertainties that such conflicts entailed, would say to Justice Scalia, “your honor, remember what Tom Jefferson wrote to Madison, “‘the earth belongs in usufruct to the living’; … the dead have neither powers nor rights over it.”

I rather like a living Constitution, and hope that it will ripen to old age and continue to serve us all, healthy and vigorously for a long time to come. Thank you much for listening.