The Personal Website of Mark W. Dawson


Containing His Articles, Observations, Thoughts, Meanderings,
and some would say Wisdom (and some would say not).

The Rule of Law or the Rule of Lawyers

As I have written in my article, “Judges, Not Lords”, Judges too often utilize torturous and convoluted reasoning in reaching their decisions. They often use their own proclivities on as to how to interpret the Law and the Constitution. Their interpretations are often driven by the legal theories of Judicial Interpretation, of which two major legal theories, Living Constitution and Originalism, are at opposition perspectives of Judicial Interpretations of the Constitution.

In the context of the Constitution, Originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified. This concept views the Constitution as stable from the time of enactment, and that the meaning of its contents can be changed only by the Constitutional Amendment process of the Constitution. This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of the current times, even if such interpretation is different from the original interpretations of the document.

Critics of Originalism claim that this theory makes the Constitution rigid, while the critics of the Living Constitution claim that this theory makes the Constitution pliant. And both criticisms are correct. Too much Originalism confines the Constitution, while too much Living Constitution makes the Constitution capricious.

Confining the Constitution too rigidly makes the Constitution unworkable to changes in the environment of the times. Within Originalism, the Original Intent and the Original Meaning theories are the two outermost interpretations of Originalism. Original Intent is constrictive of Constitutional interpretation, while Original Meaning provides more flexibility to Constitutional interpretation. Although Original Meaning provides some amenability of the Constitution to environmental changes, it does restrict significant changes to the Constitution to the Amendment process of the Constitution. Originalism can lead to the Constitution not befitting to the times, and allow for actions that are not within the ideals of the Constitution of providing "A Just Government and a Just Society" that meets the needs of our times.

The capriciousness of the Constitution leads to Judges and Lawyers being able to adapt to any changes in the environment that they think proper. Significant changes to the Constitution need not be done through the Amendment process of the Constitution, but only through a judicial interpretation process. Too much of Living Constitutionalism allow for the twisting, turning, and stretching of the Constitution like a rubber sheet. This Living Constitutionalism leads to the instability of the Constitution as it can be reinterpreted as any judge thinks proper. Although a judge’s decision can be appealed to the Appellate Court and the Supreme Court, this appeal process can take several months or years to be decided. A period of time in which there is much uncertainty. Uncertainty for those trying to act within the Constitution, and uncertainty which leads to more utilization of lawyers before acting in a manner that a person or entity thinks is legal, moral, and ethical. People and entities are afraid of doing anything different, as they think they may run afoul of a reinterpretation of the Constitution under the Living Constitution doctrine.

The Living Constitution doctrine can become undemocratic, as the Constitution and the Law are being molded by the Judicial Branch with little or no actions by the elected representatives in Congress or the elected President. Each branch of the Government; Executive, Legislative, and Judicial, take an oath of fidelity to the U.S. Constitution, and each branch needs to uphold the Constitution as it sees fit. As each branch is co-equal to each other, all three branches have the duty and responsibility to enforce the Constitution. No one branch is supreme in their duty or responsibility to enforce the Constitution. The Supreme Court is only supreme within the Judicial branch. The Supreme Court does have the responsibility to determine if the Legislature or Executive branch is exceeding its authority under the Constitution. Still, it has no authority to create policy or laws (this is often expressed as the ability to negate a law or piece of the law, but not to create policies, laws, rules, or regulations). The Living Constitution doctrine would allow the Judicial Branch to create de facto policies or laws, and consequently, we would have Lords rather than Judges and Justices.

The ‘four corners of a document’ is a legal term that denotes that in ascertaining the legal significance and consequences of the document, the parties and the court can only examine its language and all matters encompassed within it. Extraneous information concerning the document that does not appear in it—within its four corners—can not be evaluated. We need to determine the four corners of the Constitution to assure a stable Constitutional environment and a Constitution that meets the needs of our times. If we do not do so, then we will not have have the Rule of Law but the Rule of Lawyers.

The books by Akhil Reed Amar:

perfectly expounds the Living Constitution approach, while the books:

expounds the Originalist approach.

A fine article “The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution” by Michael Stokes Paulsen is a good refutation of Akhil Reed Amar’s arguments.

In the Presidential election of 2020, we have perhaps the most starkly different candidates that reflect these two different Legal Theories. The electorate of the United States will not only be deciding on a candidate but also be deciding on the Legal Theory that predominates in our Judicial system. A consequential decision that we have not faced since the election of Abraham Lincoln in 1860. We will be deciding on whether we want the Rule of Law or the Rule of Lawyers.