Friday, July 25, 2014

Professor judges high court’s ways

Noah Feldman from Harvard puts Supreme Court’s workings in focus in Max Rosenn Lecture.

April 28. 2013 11:48PM

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WILKES-BARRE — How the members of the U.S. Supreme Court interpret the Constitution is open to interpretation, and professor Noah Feldman did just that Sunday night, offering his thoughts on the the court’s workings.

Feldman, the Bemis Professor International Law at Harvard University, delivered the 32nd annual Max Rosenn Lecture in Law and Humanities at Wilkes University.

Feldman, who told the more than 100 people in attendance at the Dorothy Dickson Darte for the Performing Arts that his grandfather was from Old Forge, was a law clerk for Associate Justice David Souter and has written and lectured extensively about the Supreme Court.

It’s fundamentally different from the legislative and executive branches of government, he explained at the start of his nearly 45-minute talk.

“It takes our Constitution and it interprets that Constitution in the light of what its members consider to be the correct meaning of that document,” Feldman said.

However, rather than resorting to a dictionary to search for the meanings of the words in the document, they have taken different routes to arrive at their conclusions. They’ve done so since the creation of the Supreme Court and continue to divide their votes to this day.

“I want to suggest that the reason for that is that the job of interpretation goes beyond simple translation of the meaning of particular words in the concrete decisions,” he said.

Feldman, who often stepped from behind the lectern and paced about the front of the stage as if was lecturing in class, offered what he described as a controversial definition of interpretation, saying it’s a creative process “of first figuring out what procedure should be used” and “second, executing the job.”

He identified four methods of interpretation employed by the chief and associates justices since the 1930s.

“Constitutional originalism” is the belief that there is “not much room for interpretation at all,” he said.

Members of the Supreme Court who practice “judicial restraint” take the approach they should “do as little harm as possible” in their interpretations, Feldman added.

Chief Justice John Roberts took that approach in casting the deciding vote in the case upholding President Barack Obama’s Affordable Care Act last year, Feldman said.

The “living constitution” proponents look to maximize the freedom of the individual, Feldman said, pointing to the late Associate Justice William O. Douglas and Associate Justice Anthony Kennedy as examples.

Feldman listed “pragmatism,” or the common-sense approach, as the last of the four methods.

“Generation after generation” of Americans have been happy with the decisions of the Supreme Court, all unelected judges, he said. The Roe v. Wade decision regarding abortion stands out as divisive, Feldman noted.

“The public has not lost faith in the court,” he said.

He concluded, saying he would feel happy if he was able to convince the audience that the members of the Supreme Court use the human interpretative process when answering the nation’s most important national questions. He left it up to them to determine whether that was how they wanted it done.

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