On Tuesday we had a really interesting Forum address by Judge Griffith who is a Judge on the D.C Circuit Court of Appeals which is one of the most prestigious courts in the nation. Judge Griffith is a wonderful, hilarious and charismatic speaker and I have had the privilege to hear him speak several times.
He spoke especially about the difficulties that arise when we truly strive to understand the constitution. He compared this process to the intensive scripture study we need to undertake to truly understand the work. For instance, he gave an example of a friend who while studying in grad school spent a whole 8 weeks studying Genesis chapters 1-3.
Judge Griffith spoke about the interpretation of the constitution and how there really is an easy way and a hard way. The easy way is illustrated by an anecdote about a good friend of his that had clerked for a famous justice. His friend gave three steps for how a decision is reached:
“1) First we learn the facts on the case 2) next we think about the fair or equitable outcome then 3) we go find the law to support our conclusion. This is how most judges go about their work and rightly so.”
Judge Griffith declared that “I took a vow that I would NEVER follow my friend’s advice.” He spoke about how he tells each and every one of his clerks that a judge must first understand the facts and then work to understand the meaning of the law that governs the disposition of the case.
Judge Griffith wasn’t speaking in a partisan fashion. I think he realizes that justices on both the left and the right engage in the first kind of thinking. They come to the law with an answer already in mind, and they look to shape the law to their needs. Judge Griffith encourages originalism and an attempt to truly understand the meaning of the words of the laws as well as the legislative intent behind them.
Judge Griffith saluted the fact that the constitution has entered the discourage so much more prominently in recent years with members of the legislature debating not just the merits of legislation but the constitutionality.
Of course, In the question and answer period after the talk, Justice Griffith admitted that often even an originalist framework does not always lead to clear answers. He spoke about the D.C v. Heller gun rights decision and how BOTH SIDES looked back to the intention of the founders and basically interpreted the 2nd amendment from an originalist perspective. Its interesting to note that even if we do apply a framework based on the original intentions of a law, that the result is not always unambiguous. Judge Griffith is not saying that this way of understanding is easy. In fact, he is saying that it is quite hard, but that its the only consistent way to interpret the constitution.
Judge Griffith- Forum on the constitution. “The hard work of understanding the constitution.”
Advice for BYU students- Make attending devotionals the backbone of your week.
Every educational institution receiving federal funds must celebrate the constitution.
Constitution has more and more become a part of the dialogue in politics. However, it is hard work to actually understand what the founders intended when ratified.
Hard to understand their language and customs. What problems were they seeking to address.
There is an easy way out- Rather than wrestle with the text we can take the view that the constitution was the work of dead white racists whose views shouldn’t have much impact on how we govern today. Constitution is a license to act according to modern standards. “living constitution” whose meaning changes with our time. This suggests however that actual ratified constitution isn’t alive or “mostly dead” Federal judges should be the arbiters of the consitution. This is an easier way out then passing amendments. But this view is flawed
A man for all seasons—I will stick to what is legal rather than what is right.
I have personal moral convictions that I use in my life and in the church, but my duty as a judge is to try to understand the law as written and apply it. This undergirds the fundamental view that the people pass laws through legislatures. To do otherwise would undermine the fundamental nature of government.
Judges who replace the judgments of the constitution with their own view take away a fundamental liberty from the people.
Hard way v. Easy way: Former law clerk: “First we learn the facts on the case, next we think about the fair or equitable outcome then we go find the law to support our conclusion. This is how most judges go about their work and rightly so.”
I took a vow that I would NEVER follow my friend’s advice. Tell his clerks- The judge must first understand the facts and then work to understand the meaning of the law that governs the disposition of the case. Felix Frankfurter- Judge is merely the translator of the laws command. Prof. Scharfs- Role of the judge is largely clerical where he applies and implements the law. Judges task is to find and follow the law
Must parse the words that have been put in the law. Their meaning is the command not his own views. He does not lead the law where he wants it to go. Its not easy to navigate the law.
Its not always hard- For instance its obvious that a president must be 35 etc… No nuance to requirement that chief justice presides over impeachment. Other things are harder to understand than simply reading the text.
Mosiah- Reformer of education. Taught children language etc… Understanding scriptures is hard work. Important texts deserve careful and close reading. Spending a whole semester on Genesis 1. It takes much undistracted time.
Far more important than the will to understand the consitution is the will to prepare oneself to understand the consitution
Close reading of the constitution-
Second amendment: A well regulate militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
D.C v. Heller- Majority Opinion (Scalia) and dissent (Stevens) both tried to look into the textual meaning of the second amendment and examined its history and context to give force to what the words meant at the time of founding. Five found an individual right while four thought it protects only a collective right.
Scalia’s study found that the founders thought that the individual right to bear arms as viewed as a necessary bulwark to protect individuals. Stevens found that primary concern was over national vs. state militias and that limits the scope of the amendment.
Commerce Clause- Debate over mandate in Obamacare. Debate was over role of the federal government in our lives. Turns on the commerce clause- Art 1. – Congress shall have power to regular commerce among nations and among the several states and among the Indian tribes
Can the majority of congress tell us that we have to purchase healthcare? We may think its good or bad for several reasons, but the hard work of understanding the constitution is not just asking which policy we prefer. We need to understand some history.
Relates to the failure of the articles of confederation- Needed to help create a national economy.
1942 Wickard case- Supreme court articulated a broader scope of commerce clause. Activity that substantially affects congress. Wheat Quota upheld. Unanimous supreme court said private decision to grow and use wheat affected interstate commerce.
IN health care bill the debate was that there is a difference between regulating a market and forcing someone to enter into a market
Question is should congress be trusted in this case.
Court said that inactivity exceeds the scope of the commerce clause BUT the mandate was upheld as a tax.
Questions over scope of first amendment, equal protection or of national security powers of the president are all hard questions that require a lot of inquiry into history etc…
It takes hard work and not just watching the daily show, but really reading deep analysis in the New York Times, journals etc. Citizenship is a serious business that takes hard work.
Purpose of remarks- I began by applauding increased use of consitution in debates, but it is important to be careful to not use sight of humility
Learned Hand quoted oliver Cromwell
“I beseech ye in the bowels of Christ: Think that you might be mistaken.”
Judge hand wanted this quoted everywhere. Spirit of liberty is that which thinks it may not be right. Some of the debate in our community has lost sight of that.
I distance myself from the foolish nonsense that being a latter day saint requires and even depends on a particular political orientation.
“If you work hard and intelligently you should be able to know when a man is talking rot.”
Such partisan talk is rot.
Disagreement is essential, but those with whom we disagree are not our enemies but our collegues. When we respond carefully to argument we are fulfilling our role in our democracy. Civility is key in democracy. Do not treat those with whom we disagree as enemies. Civility advances rigrous arguments because it precludes ad homenim attacks
C.S.Lewis- Next to blessed sacrament itself…Your neighbor is the most holy object placed to your senses.
As we debate keep in mind the counsel of our greatest president. “We are not enemies but friends…We must not be enemies. Though passion may have strained it must not break or bonds of affection” (Abraham Lincoln) ( Touched by better nature of our angels.