Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted On Not Being “Trapped in Amber” on SSRN. Here is the abstract:
In United States v. Rahimi, Chief Justice Roberts wrote that the meaning of the Constitution is not “trapped in amber.” But it is possible to object that the meaning of the Constitution is fixed, and that to that extent, it is indeed trapped in amber. Justice Kavanaugh’s opinion in Trump v. Barbara, insisting that the Constitution is not so trapped, offers an occasion to sort out the relevant debates, and to identify different understandings of what it means for a Constitution, or a constitutional provision, not to be trapped in amber. The not-trapped-in-amber claim might be seen as the modern equivalent of the famous words from Chief Justice John Marshall in McCulloch v. Maryland: “we must never forget that it is a constitution we are expounding.” The not-trapped-in-amber claim requires analogical reasoning, which means that it requires judicial creativity, in the form of judicial identification of a principle to help decide what is analogous to what. Any such principle can operate at multiple levels of generality. At the lowest level of generality, meaning really is trapped in amber. At high levels of generality, there is no amber at all; construction of meaning is highly discretionary. The choice of the relevant level of generality is interpretive and to some extent normative. It follows that whenever analogical reasoning is in play, judges cannot avoid interpretive and to some extent normative choices. So much for amber.
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