Janie Boschma

Posted 9-20-2009

Students and faculty gathered at the Schneider Social Sciences building Thursday night to celebrate Constitution Day with a presentation by associate professor of political science James Tubbs entitled “Sense and Nonsense about the Supreme Court and Constitutional Interpretation: The Sotomayor Nomination.”

Tubbs began his lecture with a brief synopsis of Supreme Court Justice Sonia Sotomayor’s education and credentials. After describing her ethnicity, her upbringing, and her time at Princeton and Yale, he moved on to more general principals.

“You need to know what the Constitution is about if you are going to understand the controversy over the nomination of supreme justices,” Tubbs said. He explained that the reason people take the confirmation of a justice so seriously is because the Supreme Court interprets and applies the U.S. Constitution, often controversially with 5-4 votes, and can affect the country’s politics for decades.

“This is where we get into trouble,” Tubbs said, “because human beings frequently disagree about the meaning of written text.”

This is a question people find in the hearings, he said. People want to know how a nominee would interpret the Constitution, and how they would rule on certain issues.

“What justices have learned is not to say anything understandable,” Tubbs said, laughing.

He discussed two basic theories of Constitutional interpretation, calling them the “legal realist theory” and the “indeterminability theory of language.”

Tubbs said the followers of the first theory believe you can understand everything simply by reading the text of the Constitution. The supporters of the second argue that legal texts are meaningless, and that law is simply something judges do.

However, both views have problems, Tubbs said. He said he believes legal realism doesn’t accept the necessary reality of general terms in legal texts, while the second theory does not limit a judge’s citations or powers in their quest for justice. This is where the latter theory runs into graver problems.

“The more you move the law towards just and fair, the less you get predictability in the law,” Tubbs said, while stating the reverse was true as well.

“Then you get the question, ‘Is it even legitimate for a judge to take into account what is just? Or should they just enforce the law?”

Yet to be just, Tubbs said judges need more power.

“There are a lot of layers on this onion,” he said.

Tubbs concluded by clarifying his own stance on Constitutional interpretation.

“Let me just say I am going to try to walk a middle ground,” Tubbs said. “I am going to say there are some clauses in the Constitution that are completely clear. And then there are a bunch of things, that we can beat our heads against the wall all we want to, read all the documents and debates, and we still will not have a single iota of evidence of what the people who wrote it thought.”