Lawyers, planners

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(HOST) Part of the current debate about who should be a Supreme Court justice has to do with how the Constitution is interpreted, and commentator Bill Shutkin has been considering that question.

(SHUTKIN) It’s been a few years since I called myself a lawyer.
I’ve been a clerk to a federal judge, a law professor and I even
filed a few lawsuits. But that was a while ago.

In recent years, I’ve found myself hanging out more with planners than lawyers. Planners are people who think about the future for
a living. They’re concerned with things like housing and jobs and open space and less with rules and regulations. And to a good planner, a plan is only as good as it is flexible, so it can be adjusted to changing circumstances and unforeseen consequences.

The recent confirmation of John Roberts as Chief Justice of the Supreme Court and nomination of Harriet Miers to replace Justice O’Connor got me thinking again about lawyers. With these two appointments, President Bush will have had an extraordinary opportunity to make his mark, not only on the court, but the country. After all, the Supreme Court gets to decide what the Constitution says, and thus what the culture will or will not allow, from sexual conduct to voting rights to the protection of endangered species.

President Bush has made no secret of the fact that he favors judges like Scalia and Thomas, who seek to interpret the constitution according to the framers’ intent. Bush believes, that by sticking to the words of the constitution, judges can objectively divine the original intent.

But the planner in me doesn’t believe a judge can simply interpret the constitution in a way that stays true to the original intent – at least not in the hard cases, which are the ones that usually wind up in court in the first place. If the meaning of the words were self-evident, there’d be no dispute, and no reason to have judges.

The bigger problem with originalism is the way it views the constitution, as something frozen in time. I prefer to view the constitution as America’s greatest planning document, our master blueprint. It establishes the basic structure of our society. That it was ratified in 1787 doesn’t mean that it has to be approached as if we, too, were living in the 18th century.

Rather, like any good plan, the Constitution should be seen as an evolving document, one embedded in a set of immutable but general principles – like equal protection and due process – but a document that responds to the unique circumstances of the present-day. This is Justice Breyer’s view; it’s an honest approach, a planning approach.

I think if folks like Madison and Jefferson were around today they’d disapprove of taking a narrow view of the constitution and the role of judges, as well as judges who insist on an orthodox approach to interpretation.

I say better to have the planner’s flexibility than the lawyer’s formalism. I guess that’s a big part of why I no longer practice law.

This is Bill Shutkin of Peru.

Bill Shutkin is president of the Orton Family Foundation and a Research Affiliate at M.I.T. He spoke from our studio at Burr and Burton Academy in Manchester.

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