Constitutional Law

One of my favorite things about my career as an appellate lawyer is the amount of constitutional law I get to deal with on a regular basis. In fact, I have a case pending in the California Supreme Court interpreting the constitutional right to an unbiased trial judge. There is no question that we have a federal constitutional right to a trial before an unbiased judge who is fair in fact. What is left open, is whether that right further includes the right to a trial before a judge who is free from the mere appearance of bias. Should make for an interesting opinion from the Cal Supremes.

I would like to make a few comments as to the notion of the Constitution being a living document. The Framers had great insight and wisdom in drafting a document that would be vague or ambiguous enough to allow for changing circumstances, but yet clear and concise enough to withstand the erosion of time and stand as an ensign to the world of an inspired declaration of self-government. The danger in simply concluding that the Constitution is a "living document" subject to interpretation as circumstances change is that if we go too far in such a direction, we lose the contextual tether which explains the Framers' intentions. By the same token if we unyieldingly keep the Constitution moored to 18th century thought, we run the risk of finding untenable or even unpalpable interpretations of that document in a society that has certainly evolved in the last 200 years. Consequently, there must be a middle ground. Contextualism and originalism which seeks to understand the original intent of the Framers is an excellent starting point for constitutional interpretation. However, it would be unwise to neglect or ignore the lessons of the last 200 years. By and large, I have found that the United States Supreme Court does a good job in reaching that balance.

Perhaps in a later post I will say a thing or two about legislating from the bench. In the interim, and in a related vein, I am interested to hear what the outside world (outside of California) has to say about our Supreme Court's recent ruling on gay marriage. My office, sadly, lost that case. This was a classic example of judicial activism in which the high court decided to legislate from the bench on the definition of marriage. I am most interested in hearing good secular arguments for why marriage should be defined as only between a man and a woman -- take God, the Plan of Salvation, and any other spiritual doctrine out of the mix and what compelling arguments are left?