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On Originalism and Pragmatism: Daydreams for Presidents Day

By E.L. Lipman

Among the odd juxtapositions that occurs on this holiday honoring the Nation?s Presidents, is that today is likewise the 20th anniversary of the seating of Associate Justice Anthony M. Kennedy on the U.S. Supreme Court. Today, therefore, we are reminded that as powerful as Presidents are, their broader legacies are something that will, in part, be set by other men and women.

Likewise interesting to me, were the words that were spoken by Justice Kennedy and then-President Ronald Reagan following the administration of the oath of office on that day. With the benefit of exactly two decades worth of hindsight, we see that the ceremony in the East Room of the White House on that day foreshadowed the critiques that later would come as to both men. Justice Kennedy, for example, gave expression to some of grandiloquent flourishes for which he would become well-known; remarking that ?it is appropriate to recognize an essential truth, and that is that the Constitution of the United States is the single fact, the single reality, the single idea, the single moral principle that sets the United States apart from other nations, now and throughout history.?

For his part, President Reagan was pointedly explicit about his hopes for the new Justice?s work:

[T]he role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it ? certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.

Concluding good-naturedly about the new hire, Reagan noted that ?anyone who teaches law in a powdered wig and a tri-cornered hat is all right by me on original intent.?

The complete set of remarks from February 18, 1988 is accessible here.

Perhaps pragmatically, I will do my daydreaming on this from a seat in the House Gallery ? as the Minnesota Legislature is still hard at work on this state holiday.

Full post as published by Within the Scope on February 18, 2008 (boomark / email).