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On February 17, 2016, the ALA convened for lunch at the Union League Club in Chicago and enjoyed an interesting discussion on theories of constitutional and statutory interpretation featuring Seventh Circuit Judges Diane Sykes and David Hamilton. The topic was particularly timely in light of the recent passing of Justice Antonin Scalia; no discussion of constitutional interpretation would be complete without frequent reference to Justice Scalia, to whom both speakers paid tribute, as did ALA President Mike Scodro in greeting the luncheon participants.
Judge Sykes began with an overview of the main theories of constitutional interpretation that historically have dominated American jurisprudence: the living constitutionalism of the Warren court, which brings to mind the approach of Justice William Brennan, that the meaning of the broad terms contained in the Constitution should evolve with changes in American society; the political process theory, which confers unrestrained power on the judiciary, an approach largely confined to academia; originalism, which tethers judges to the text of the Constitution and historical context; and pragmatism, an approach that focuses on the consequences of judicial decisions. Judge Sykes explained that pragmatism is prominently featured in the opinions of Seventh Circuit Judge Richard Posner and, to a lesser extent, Supreme Court Justice Stephen Breyer. As an example of how she and her colleagues implement a variety of these constitutional theories, Judge Sykes discussed the Seventh Circuit’s 2013 decision in Moore v. Madigan, which held 2-1 that Illinois was required under the Second Amendment to license the concealed carrying of firearms.
Judge Hamilton theorized that, regardless of the various manners of constitutional interpretation at play in a given case, a judge still must exercise discretion in wielding judicial power. While the originalism/textualism approach developed to rein in what some viewed as a power hungry judiciary in the Warren years, a judge's work still involves, in significant measure, the exercise of judgment and discretion. Making this point with humor, Judge Hamilton quoted Justice Scalia as saying, "I’m an originalist, but not a nut." Judge Hamilton also critiqued the decision in Bush v. Gore and provided examples of cases in which textualism and originalism conflict.
The Association thanks Judge Hamilton and Judge Sykes for the fascinating discussion and also thanks the ALA members and guests for attending the program.
DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.
