What Did They Say?

Judges must use the original intent of the founding fathers as their guiding principle when they interpret the Constitution, the U.S. Solicitor General said on September 5 at a symposium in Langdell Hall entitled, "Constrasting Approaches to the interpretation of the United States Constitution."

The standing-room-only audience included Supreme Court Associate Justice Harry A. Blackmun '29 and numerous Law School professors.

"We must take the Constitution at the original intention of its framers, lest we are forced to accept an usurpation of power [by the judiciary]," said Solicitor General and Carter Professor of General Jurisprudence Charles Fried, in a discussion moderated by former Watergate Special Prosecutor Archibald Cox '34.

But three other distinguished legal academicians disagreed with Fried's attack on judges' power to overturn laws they deem unconstitutional.

Laurence H. Tribe '62, Tyler Professor of Constitutional Law, opposed Fried's view, arguing that the Ninth Amendment provides for rights the Constitution does not specify, thereby allowing for a more general interpretation of the nation's highest law. Using this argument, Tribe attacked the Supreme Court for its ruling last term upholding a Georgia anti-sodomy law in Bowers vs. Hardwick.

"With original intent, they [the judges] can just say, 'hey, it's not my fault, I'm only following the text,"' said Tribe.

Answering Fried's statement that the people should be allowed to determine the laws of society through their elected representatives, Tribe said "good American virtues refracted by an elitist lens can degenerate into a narrow, parochial imposition of one set of general moral values upon another."

Critical legal scholar Mark V. Tushnet '67 of the Georgetown University Law Center said that "judiciary review is both necessary and impossible." It is necessary to check the unrestricted power of the central government, but it is also impossible because it in itself is an unchecked power, he said.

Andrew Kaufman '51, associate dean and Fairchild Professor of Law, also attacked original intent, although he said he could find no justification for judicial review. "There is no need to engage in a futile search for original intent or to straightjacket the Constitution in judicial, social, and philosophical theories," he said.

"Academic debate believes that judicial review is undemocratic. My answer is so what? There aren't any problems [with it]," said Kaufman.