When the Honorable Jeffrey S. Sutton first leaned toward the microphone at the beginning of his Constitution Day lecture on Sept. 17, he mentioned that it was customary to open such a speech with a lawyer joke. Faint chuckles rolled through the audience in the Hamilton College Chapel, but it was apparent that there was no light humor to be had. Sutton instead chose to describe his first tense days, back after a long summer, as a judge on United States Court of Appeals for the Sixth Circuit.
He'd glance at his colleagues and notice the slight incongruities of their appearance: robes that fit differently on their form, beards that had been shaven or grown out since the group's last gathering. And while such scrutiny may seem like nitpicking, Sutton assured the audience that it's all part of the job description: whether it be as small as the image of an associate or as large as an amendment to the Constitution, "any change deserves attention."
And changes there have been. There are 27 amendments to the Constitution, ten of which were originally included in the Bill of Rights when the document was first adopted; that leaves 17 revisions added in later years. Remove two of those, however – the 18th amendment and the 21st (the former enacting Prohibition and the latter repealing that decision) – and what is left are 15 true and formal changes. This process refers to the notion of a "living Constitution", a theory that states the Constitution is dynamic and can ultimately be altered in the face of new and different situations. The Founding Fathers weren't fools, Sutton declared, and they knew that in order for the Constitution to remain alive it must be able to adapt to its changing environment – much like any living organism.
Nonetheless there is a schism when it comes to the judge's role in determining what is "unconstitutional", or what makes a particular law come into conflict with the text of the Constitution. What is the relation between the document itself and the judges who interact with it? Some argue, like Justice Antonin Scalia, that the Constitution is "static" and judges should reserve themselves to merely interpreting what is already there. Others believe it's important that judges reserve the power to make value-laden decisions by means of their verdicts.
The debate continues to divide the American public and their political parties, but undoubtedly there is one thing that always functions as a factor in a judge's decision-making, no matter his or her worldview: history. How can one utilize the past in order to make a judgment about the present and future? "History provides a neutral way to revisit precedents," Sutton explained, and looking to history can impart solutions to current cases and to the messes that courts may get themselves into. However, "Judges are not always prime historians," as Sutton emphatically mentioned, and though history is a valuable tool in judicial review, sometimes judges are not justified in using it as a means to an end. "If history is ambiguous – if neither the text nor the history gives the court a right to be in the field – the court should stay out of the field… When judges act as legislators, you don't get equity in law, you get equity without law," Sutton said.
And what would Alexander Hamilton, the college's namesake, have to say about this issue? Sutton joked that he'd obviously be in favor of looking to the past, since nowadays Hamilton's only friends are "historians and posterity." But, putting on a more serious face, Sutton quoted James Madison toward the end of the lecture, "Experience is the oracle of truth."
-- by Alex Pure '12
He'd glance at his colleagues and notice the slight incongruities of their appearance: robes that fit differently on their form, beards that had been shaven or grown out since the group's last gathering. And while such scrutiny may seem like nitpicking, Sutton assured the audience that it's all part of the job description: whether it be as small as the image of an associate or as large as an amendment to the Constitution, "any change deserves attention."
And changes there have been. There are 27 amendments to the Constitution, ten of which were originally included in the Bill of Rights when the document was first adopted; that leaves 17 revisions added in later years. Remove two of those, however – the 18th amendment and the 21st (the former enacting Prohibition and the latter repealing that decision) – and what is left are 15 true and formal changes. This process refers to the notion of a "living Constitution", a theory that states the Constitution is dynamic and can ultimately be altered in the face of new and different situations. The Founding Fathers weren't fools, Sutton declared, and they knew that in order for the Constitution to remain alive it must be able to adapt to its changing environment – much like any living organism.
Nonetheless there is a schism when it comes to the judge's role in determining what is "unconstitutional", or what makes a particular law come into conflict with the text of the Constitution. What is the relation between the document itself and the judges who interact with it? Some argue, like Justice Antonin Scalia, that the Constitution is "static" and judges should reserve themselves to merely interpreting what is already there. Others believe it's important that judges reserve the power to make value-laden decisions by means of their verdicts.
The debate continues to divide the American public and their political parties, but undoubtedly there is one thing that always functions as a factor in a judge's decision-making, no matter his or her worldview: history. How can one utilize the past in order to make a judgment about the present and future? "History provides a neutral way to revisit precedents," Sutton explained, and looking to history can impart solutions to current cases and to the messes that courts may get themselves into. However, "Judges are not always prime historians," as Sutton emphatically mentioned, and though history is a valuable tool in judicial review, sometimes judges are not justified in using it as a means to an end. "If history is ambiguous – if neither the text nor the history gives the court a right to be in the field – the court should stay out of the field… When judges act as legislators, you don't get equity in law, you get equity without law," Sutton said.
And what would Alexander Hamilton, the college's namesake, have to say about this issue? Sutton joked that he'd obviously be in favor of looking to the past, since nowadays Hamilton's only friends are "historians and posterity." But, putting on a more serious face, Sutton quoted James Madison toward the end of the lecture, "Experience is the oracle of truth."
-- by Alex Pure '12
