No one could've missed the Supreme Court's release of the ten commandment cases, Van Orden [PDF] and McCreary [PDF], the blogosphere is buzzing with commentary. Here's an example: SCOTUS Discussion. I promise to write something on these two decisions, keeping with the style and length of my previous posts on this year's cases, but not now.
Suffice it to say, however, that for all his invective, I thought particularly compelling Justice Scalia's opinion in McCreary. Justice Souter's opinion in that case should be deemed void for vagueness. The Court, via Justice Souter, has once again refused to establish any criteria for Establishment Clause cases. It was even reluctant to discuss the inadequate, but longstanding, Lemon test. If I may extend the principle of legality to the law generally, please allow me this analogy. The principle of legality, as defined by Black's Law Dictionary is, "[t]he principle that a person may not be prosecuted under a criminal law that has not been previously published." This principle is grounded in the idea that in our constitutional democracy, we should know the laws to which we are required to conform. While I understand that the principle of legality speaks of criminal offenses, I do not believe extending this principle to include the realm of civil law is out of bounds. What I suggest is that the laws to which we are expected to conform, civil and criminal, should be clear, consistent, and verifiable, fulfilling the "published" requirement of the principle of legality.
The extent to which the Supreme Court employs vagueness and evades erecting guideposts, or in their simple refusal to approach Constitutional interpretation methodologically, each of us are subjected to their whims. So, why is clarity, consistency, and verifiability to be encouraged after all? I believe T. from Ex Post answers this nicely in his response to Professor Leiter's criticisms of originalism. T. says:
The principle is inherent, though, in writing
laws down in the first place--it is the principle that the law (not any
given human being, such as a judge or a chancellor or a prince or a
Guardian) is the rule. Originalism is all about the rule of law. And it
is simply not intelligible to speak of the law ruling when (a) the law
is written but (b) the meaning of what was written bears no necessary
relationship to its future application. One need not have naive
optimism, again, about the ease of interpretation to be committed to
the simple notion that in attending to a written text one should attend
to what the meanings of the words were when the text was written, in
order to understand the thing. And the burden should be on Leiter to
explain WHY one would have any commitment to a written Constitution but
NOT a commitment to fixed "meanings."
