Three Lessons for the Great Debate About to Begin:
I recall very well the debates over the nominations of Robert Bork and Clarence Thomas to the Supreme Court. Both featured the most elevated public discourse over constitutional interpretation in my lifetime. Of course, both nominations were also marred by ugly personal attacks and false charges. For the upcoming nomination, we can expect both types of discourse. To that end, some may wish to review the debate I recently had with Cass Sunstein over at Cass and others such as Jeff Rosen have promoted the trope "Constitution in Exile" to describe those who favor enforcing the whole Constitution according to its original meaning. The alternative is to enforce only portions of the text according to whatever meaning yields "good" results.

It is useful to review this debate to see the difference in our approaches so one can better track and participate constructively in the forthcoming debate. My approach focuses on restoring portions of the "lost" Constitution that the Courts have long ignored--such as the Commerce Clause, the Necessary and Proper Clause, the Second Amendment, the "public use" portion of the Takings Clause, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. Cass consistently focused, not on the text of the Constitution, but on a list of results--either good results he favored preserving or bad results he contended that the fictitious "Constitution in Exile movement" wanted to achieve.

LESSON ONE: Watch the switch from a list of ignored textual provision to good and bad results.

This debate should not allowed to be turned into a debate over results. It should instead be a debate over constitutional method and the restoration of portions of the text that have long been discarded. This includes challenges to judicial conservatives who, like Justice Scalia, would continue to ignore the Ninth Amendment or Privileges or Immunities Clause because they fail to meet his standard for a "rule of law." Ignoring portions of the Constitution because they fail to conform to your theory of the "rule of law" is no different than ignoring portions that fail to conform to your theory of "justice."

LESSON TWO: Watch the switch from meaningful scrutiny to extremely deferential "rational basis" scrutiny, as a means of continuing to ignore portions of the text.

And by "ignoring" I include adopting an extremely deferential "rational basis" approach that yields all discretion to the legislative branches, as Justice Stevens explicitly and Justice Scalia implicitly recently did in the medical cannabis case when applying the Necessary and Proper Clause. This is a game that both "liberals" and "conservatives" can play. It is not "activist" for judges to demand of legislatures that they have a real and justified reason for restricting the liberties of the people--something more than mere assertion. Whenever legislatures need not meet any burden of justification whatsoever--e.g. Justice Stevens' approach in both Raich and Kelo--the scheme of federalism and limited enumerated powers is undermined.

LESSON THREE: Watch for an appeal to "precedent" to attack a nominee who may favor reviving the original meaning of portions of the text--e.g. the "public use" portion of the Takings Clause--that have been ignored for far too long.

Another technique for ignoring the text is to elevate the importance of past nonoriginalist judicial decisions in the name of "precedent." The "liberal" side of the Court has never accepted the "precedents" of Lopez and Morrison. Nor could "liberal" or "moderate" justice be counted on to accept any precedent that does not accord with the results that drive their approaches. For the same reason, a "conservative" (or libertarian) Justice should give little weight to nonoriginalist precedent that justifies ignoring portions of the text. It is the Constitution to which a judge (and Senator) takes an oath, not past decisions by the Supreme Court. The issue of precedent is very complicated, however. I explain some of these complications here.

On the other hand, you may expect nominees to deflect potential criticisms by embracing precedent to avoid the charge that they would revive now ignored portions of the text. Given that many originalists do favor adhering to precedent, this defense may be entirely sincere. To the extent, however, that a nominees is willing to elevate the past opinions of the Court over the text of the Constitution where the two clearly conflict, he or she would be abandoning anything like an originalist approach to interpretation. This would not be a good sign for the future. Inevitably selective reliance on precedent is one of the most common methods of avoiding the text of the Constitution when the text is an obstacle to achieving particular results--my definition of "judicial activism."

Let me offer as my hope for this forthcoming debate, the penultimate paragraph of my exchange with Cass:
Over the course of this week, Legal Affairs readers have been provided a preview of a great debate that lies ahead. As my final contribution to our discussion, let me express my hopes and aspirations for that debate. I hope that the political process upon which we rely to select Supreme Court Justices will not be thwarted by name calling, conspiracy mongering, or false claims about bad motives on either side. I hope that judicial nominees will not be presented with a laundry list of results intended to serve as a litmus test for ideological acceptability. I hope they will be asked instead about their judicial philosophy and their commitment to the rule of law. I hope that those who participate in this great debate will frame their arguments in language that clarifies the issues rather than obscures them. And I most fervently hope that the debate will not be conducted in a topsy-turvy newspeak that charges originalists with being insufficiently conservative and equates adhering to the rule of law supplied by the Constitution of the United States with activism or radicalism!
You can read the entire debate here.