Original Intent: The Way Out II
The Reagan Administration's fight to impose a strict interpretation of the constitution based on the framers' intent was blasted yesterday by five legal experts at the "Sources of Constitutional Meaning in the Process of Interpretation" symposium.
"The jurisprudence of original intention without history is a frequently destroyed, annihilated Phoenix," said Ronald Dworkin, law professor at Oxford and New York University Law School.
A judge cannot avoid drawing on historical context and past judicial decisions when ruling on the meaning of a Constitutional passage, said Paul Brest, professor of clinical legal education at Stanford. Otherwise, the judge would be ignoring "the moderating forces of evolution" that acted on the original text. For example, the forces of time caused the equal protection clause of the 14th Amendment to protect all minorities and women instead of just Blacks, said Brest.
Even with this amendment, "the Constitutional formula for social reform" must still take into account the minorities who had no representation when it was written two hundred years ago, said Derrick Bell, a Harvard law professor.
An effective judge has the obligation to reflect the nation's fundamental values in each difficult decision while protecting the basic principles of the Constitution against the "winds of the hour," said one of Israel's Supreme Court Justices Aharon Barak. "A judge must be a historian, philosopher and prophet."