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Nan Aron
Huffington Post
The Associated Press reported the other day (actually, several months ago - DRL - I've desginated today as "Bash Five Fingers Day") that Supreme Court Justice Antonin Scalia called all those who don't subscribe to his "originalist" method of constitutional interpretation "idiots." Among those "idiots?" Constitutional giants like John Marshall, Louis Brandeis and William Brennan. Oh, and probably every other Supreme Court Justice in history, with the exception of Clarence Thomas and now perhaps Samuel Alito.
Do we really need any other proof of who today's judicial radicals are? Earlier, the most forceful public proponent of Justice Scalia's interpretive method - which requires looking exclusively at what the ratifiers of a constitutional provision thought its terms meant at the time of adoption - was Robert Bork. Bork, you might recall, was booed and hissed off the American stage precisely because of his ardent defense of originalism (by the way, the transparency of Bork's reasoning became clear when it was revealed that he held the belief, for years, that the Equal Protection Clause did not protect women's rights, but then, just as his confirmation hearings were a'comin, he held that it did. Considering the Framers of the 14th Amendment never discussed women in the context of the passage of that Amendment, one wonders what caused Judge Bork's remarkable turnaround, just as one wonders what caused his 11th hour turnaround to the view that, yes indeed, the 1st Amendment covers not only political speech but commercial speech as well - never mind the fact that the Framers were silent as to whether the 1st Amendment covered the latter).
The reason originalism will never gain popularity is that it reflects an utterly regressive vision of the law, one that stands athwart decades of legal and social progress. According to originalists, the Constitution severely limits Congress' authority to prohibit pollution, hazardous working conditions and discrimination; permits state governments to discriminate against women, ban contraception and regulate private, noncommercial sex between consenting adults; outlaws independent enforcement agencies headed by officials who can't be removed by the president, like the Securities and Exchange Commission and the National Labor Relations Board; and severely restricts the work of those and other regulatory agencies, like the Consumer Products Safety Commission, the Mine Safety and Health Administration, the Occupational Safety and Health Administration, the Federal Communications Commission (in other words, the Constitution severely limits the power of Congress while greatly expanding the power of the Executive. Anyone, though who has read the Constitution, of course -except the originalists, that is, knows that Congress is granted MANY more specified enumerated powers than the President is).
Untempered by precedent, originalism would require reversing Brown v. Board of Education, the principle of one person-one vote and landmark cases guaranteeing the right to free speech.
But the regressive implications of originalism are only one part of the story. There are practical problems as well. As even Ronald Reagan's Solicitor General Charles Fried has written, the objections to originalism are "devastating." How can anyone determine precisely what the ratifiers meant by the words "due process" and "equal protection," or which ratifiers' or Framers' thinking to follow (moreover, how do we know that the Framers intended that the Constitution intended for the Constitution to be interpreted along originalist lines, and how do we know that they meant for their intent to control?), when members of the founding generation possessed dramatically differing views (indeed, individual members could not make up their own minds as to certain principles. See, e.g., Jefferson and religion).
And why should such broad, self-evidently adaptable phrases be interpreted solely according to what any ratifier thought, particularly when it appears that: (a) at least some chose those phrases precisely to accommodate changes they could not foresee and (b) many rejected the notion, necessarily embraced by originalists, that legal texts like the Constitution ought to be interpreted by reference to extrinsic historical materials? (These same originalists, of course, refuse to interpret Congressional statutes in this manner, because there remains the loomingly horrifying possibility that Congressional intent might have been antithetical to their right-wing ideology).
The fact that the Court's two originalists adopted polar opposite "originalist" positions on whether the president can indefinitely detain American citizens (see Hamdi v. Rumsfeld) as enemy combatants on his own say-so without review by a neutral decision-maker - Justice Scalia said no, Justice Thomas (all alone) said yes - perfectly illustrates the theory's methodological failings.
These practical problems expose what can only be called a false conceit. Like his right-wing acolytes, Justice Scalia arrogantly claims that originalism is the only value-neutral method of constitutional interpretation, "preventing him from doing the things he would like to do." This is baloney.
Or as Justice Brennan once said of originalism, it is "arrogance cloaked as humility."
(In a speech at Georgetown University in 1985, Brennan eloquently stated: "There are those who find legitimacy in fidelity to what they call "the intentions of the Framers." In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality.
Indeed, it is far from clear whose intention is relevant–that of the drafters, the congressional disputants, or the ratifiers in the states?–or even whether the idea of an original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states. And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive. One cannot help but speculate that the chorus of lamentations calling for interpretation faithful to "original intention"–and proposing nullification of interpretations that fail this quick litmus test–must inevitably come from persons who have no familiarity with the historical record.
Perhaps most importantly, while proponents of this facile historicism justify it as a depoliticization of the judiciary, the political underpinnings of such a choice should not escape notice. A position that upholds constitutional claims only if they were within the specific contemplation of the Framers in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right. It is far from clear what justifies such a presumption against claims of right. Nothing intrinsic in the nature of interpretation–if there is such a thing as the "nature" of interpretation– commands such a passive approach to ambiguity. This is a choice no less political than any other; it expresses antipathy to claims of the minority rights against the majority. Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance. "
The bottom line is that originalism is itself a political choice, "based on a value judgment commanded neither by constitutional text nor history and repudiated by a long line of distinguished Justices dating back to John Marshall," as the author of Closed Chambers, Edward Lazarus, has written. (In other words, to sententiously state that "I will be an originalist so that I won't end up making a moral choice," is to, of course, make a moral choice.)
But wait, there's more. University of Chicago law professor Cass Sunstein points out repeatedly in his recent book, Radicals in Robes (which contains a full-blown, withering critique of originalism), that Justice Scalia doesn't practice what he preaches. He, Justice Thomas and many of their supporters - whom Sunstein calls constitutional "fundamentalists" - do not consistently follow originalism wherever it takes them. Indeed, when confronted with a constitutional question where originalism might lead to results that are inconsistent with the political goals of the right-wing of the Republican Party, Justice Scalia's originalist pretensions often disappear.
So when deciding the constitutionality of affirmative action programs, land use regulations, campaign finance reform and restrictions on commercial speech - and let's not forget Bush v. Gore - Justice Scalia does not even bother to investigate what the ratifiers or Framers thought.
Yet on each of those issues, he somehow manages to reach conclusions favored by hard-line political conservatives.
In one opinion involving the regulation of beachfront property development, Justice Scalia acknowledged that property value-depleting regulations may not have been what the Framers had in mind when drafting the Fifth Amendment's Takings Clause, but he said that judicial recognition of such "regulatory takings" was part of our "constitutional culture." See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). It is hard to imagine what kind of vituperativeness would have flowed from Justice Scalia's pen if any other Justice had resorted to such anti-originalist "idiocy" in a different context. Which just goes to show, as Sunstein has said, that many originalists are peddling nothing more than "a political program in legal dress." ((Just as they are peddling "token federalism," that is to say, the idea that states are not subject to federal legislative schemes when such subjection leads to results that political conservatives dislkie, but that states are subject to such schemes when such subjection leads to results that political conservatives like. Perfect example: The United States Code provides a "safe-harbor" deadline for states to submit a slate of electors such that those electors cannot be subject to later challenge. I know, this sounds familiar. It is. What this means is that, if the state certifies a slate of electors by date X (i.e. certifies to Congress that electors X are its electors by date X), then, at no subsequent point in time can a different slate of electors be certified or mount a challenge to this certification. The U.S.C., however, does not REQUIRE that a state submit its slate by this deadline; it simply provides that should the state wish to avoid challenge, it must present the slate by date X. Moreover, a state OBVIOUSLY cannot avail itself of this deadline for the sole purpose of certifying fraudulent electors (i.e. a state cannot say, "We have the absolute right to submit our slate by the safe harbor deadline, or else elector X, whom the Constitution disqualifies from being an elector, might subsequently be challenged because he does not meet the Constitutional criteria). Finally, and most importantly, the "safe harbor deadline" is something that the law calls "non self-enforcing." Since, as the Supreme Court (wrongly, I think) said in Bush v. Gore that Americans have no right to vote for electors, a state obviously does not have the (lesser) right to have its desire to meet the safe-harbor deadline judicially enforced (say, when, an opposing party wants to extend the time needed to conduct a recount beyond the safe harbor cut-off) - not just because the greater absence of a right implies the lesser, but because a statutory provision such as the safe-harbor deadline that merely states what person X must do to receive benefit Y cannot be JUDICIALLY enforced, as a general matter, such that person X will be granted that benefit, UNLESS the statute spells out a way of judicial enforcement. The safe harbor deadline spelled out no such way (i.e. it did not say, "If state X wants to meet the safe harbor deadline, and perceives someone is interfering with its ability to do so,the state may file a motion with the Court, asking the court for an order to grant the state the right to certify its electors in accordance with its wish with the deadline). Of course, in Bush v. Gore, the Supreme Court, as it held that we have no fundamental right to vote for electors, simultaneously held that Florida's wish to meet the deadline could be granted by the Supreme Court, and because it could, there was a "federal question" in the case necessitating the Supreme Court hear the case. Wonder why the case cited -inappropriately - just about one precedent in its entire 30 pages and why there has not been so much as a single convincing intellectual defense of it? Well, wonder no more. Crap can't cite reality in its defense. Oh, and by the way, did I mention that in 1960, when we had the same "safe harbor" provision, Congress considered two competing slates of Alaska electors after the safe-harbor deadline had passed, therefore putting the lie to the Supreme Court's contention that a state has a fundamental right for the sake of it in having its desire to meet the deadline enforced?)).
It must get tiresome for legal academics and judges to continue having to explain the injustices that originalism would produce, its methodological flaws, and the hypocrisy of many of its adherents. But maybe if Justice Scalia keeps calling legions of revered jurisprudential opponents "idiots," the media will begin to pick up on these things. And maybe then people will begin to understand the radicalism of President Bush's pledge to nominate Justices "in the mold[iness?] of Scalia and Thomas."
Huffington Post
The Associated Press reported the other day (actually, several months ago - DRL - I've desginated today as "Bash Five Fingers Day") that Supreme Court Justice Antonin Scalia called all those who don't subscribe to his "originalist" method of constitutional interpretation "idiots." Among those "idiots?" Constitutional giants like John Marshall, Louis Brandeis and William Brennan. Oh, and probably every other Supreme Court Justice in history, with the exception of Clarence Thomas and now perhaps Samuel Alito.
Do we really need any other proof of who today's judicial radicals are? Earlier, the most forceful public proponent of Justice Scalia's interpretive method - which requires looking exclusively at what the ratifiers of a constitutional provision thought its terms meant at the time of adoption - was Robert Bork. Bork, you might recall, was booed and hissed off the American stage precisely because of his ardent defense of originalism (by the way, the transparency of Bork's reasoning became clear when it was revealed that he held the belief, for years, that the Equal Protection Clause did not protect women's rights, but then, just as his confirmation hearings were a'comin, he held that it did. Considering the Framers of the 14th Amendment never discussed women in the context of the passage of that Amendment, one wonders what caused Judge Bork's remarkable turnaround, just as one wonders what caused his 11th hour turnaround to the view that, yes indeed, the 1st Amendment covers not only political speech but commercial speech as well - never mind the fact that the Framers were silent as to whether the 1st Amendment covered the latter).
The reason originalism will never gain popularity is that it reflects an utterly regressive vision of the law, one that stands athwart decades of legal and social progress. According to originalists, the Constitution severely limits Congress' authority to prohibit pollution, hazardous working conditions and discrimination; permits state governments to discriminate against women, ban contraception and regulate private, noncommercial sex between consenting adults; outlaws independent enforcement agencies headed by officials who can't be removed by the president, like the Securities and Exchange Commission and the National Labor Relations Board; and severely restricts the work of those and other regulatory agencies, like the Consumer Products Safety Commission, the Mine Safety and Health Administration, the Occupational Safety and Health Administration, the Federal Communications Commission (in other words, the Constitution severely limits the power of Congress while greatly expanding the power of the Executive. Anyone, though who has read the Constitution, of course -except the originalists, that is, knows that Congress is granted MANY more specified enumerated powers than the President is).
Untempered by precedent, originalism would require reversing Brown v. Board of Education, the principle of one person-one vote and landmark cases guaranteeing the right to free speech.
But the regressive implications of originalism are only one part of the story. There are practical problems as well. As even Ronald Reagan's Solicitor General Charles Fried has written, the objections to originalism are "devastating." How can anyone determine precisely what the ratifiers meant by the words "due process" and "equal protection," or which ratifiers' or Framers' thinking to follow (moreover, how do we know that the Framers intended that the Constitution intended for the Constitution to be interpreted along originalist lines, and how do we know that they meant for their intent to control?), when members of the founding generation possessed dramatically differing views (indeed, individual members could not make up their own minds as to certain principles. See, e.g., Jefferson and religion).
And why should such broad, self-evidently adaptable phrases be interpreted solely according to what any ratifier thought, particularly when it appears that: (a) at least some chose those phrases precisely to accommodate changes they could not foresee and (b) many rejected the notion, necessarily embraced by originalists, that legal texts like the Constitution ought to be interpreted by reference to extrinsic historical materials? (These same originalists, of course, refuse to interpret Congressional statutes in this manner, because there remains the loomingly horrifying possibility that Congressional intent might have been antithetical to their right-wing ideology).
The fact that the Court's two originalists adopted polar opposite "originalist" positions on whether the president can indefinitely detain American citizens (see Hamdi v. Rumsfeld) as enemy combatants on his own say-so without review by a neutral decision-maker - Justice Scalia said no, Justice Thomas (all alone) said yes - perfectly illustrates the theory's methodological failings.
These practical problems expose what can only be called a false conceit. Like his right-wing acolytes, Justice Scalia arrogantly claims that originalism is the only value-neutral method of constitutional interpretation, "preventing him from doing the things he would like to do." This is baloney.
Or as Justice Brennan once said of originalism, it is "arrogance cloaked as humility."
(In a speech at Georgetown University in 1985, Brennan eloquently stated: "There are those who find legitimacy in fidelity to what they call "the intentions of the Framers." In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality.
Indeed, it is far from clear whose intention is relevant–that of the drafters, the congressional disputants, or the ratifiers in the states?–or even whether the idea of an original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states. And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive. One cannot help but speculate that the chorus of lamentations calling for interpretation faithful to "original intention"–and proposing nullification of interpretations that fail this quick litmus test–must inevitably come from persons who have no familiarity with the historical record.
Perhaps most importantly, while proponents of this facile historicism justify it as a depoliticization of the judiciary, the political underpinnings of such a choice should not escape notice. A position that upholds constitutional claims only if they were within the specific contemplation of the Framers in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right. It is far from clear what justifies such a presumption against claims of right. Nothing intrinsic in the nature of interpretation–if there is such a thing as the "nature" of interpretation– commands such a passive approach to ambiguity. This is a choice no less political than any other; it expresses antipathy to claims of the minority rights against the majority. Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance. "
The bottom line is that originalism is itself a political choice, "based on a value judgment commanded neither by constitutional text nor history and repudiated by a long line of distinguished Justices dating back to John Marshall," as the author of Closed Chambers, Edward Lazarus, has written. (In other words, to sententiously state that "I will be an originalist so that I won't end up making a moral choice," is to, of course, make a moral choice.)
But wait, there's more. University of Chicago law professor Cass Sunstein points out repeatedly in his recent book, Radicals in Robes (which contains a full-blown, withering critique of originalism), that Justice Scalia doesn't practice what he preaches. He, Justice Thomas and many of their supporters - whom Sunstein calls constitutional "fundamentalists" - do not consistently follow originalism wherever it takes them. Indeed, when confronted with a constitutional question where originalism might lead to results that are inconsistent with the political goals of the right-wing of the Republican Party, Justice Scalia's originalist pretensions often disappear.
So when deciding the constitutionality of affirmative action programs, land use regulations, campaign finance reform and restrictions on commercial speech - and let's not forget Bush v. Gore - Justice Scalia does not even bother to investigate what the ratifiers or Framers thought.
Yet on each of those issues, he somehow manages to reach conclusions favored by hard-line political conservatives.
In one opinion involving the regulation of beachfront property development, Justice Scalia acknowledged that property value-depleting regulations may not have been what the Framers had in mind when drafting the Fifth Amendment's Takings Clause, but he said that judicial recognition of such "regulatory takings" was part of our "constitutional culture." See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). It is hard to imagine what kind of vituperativeness would have flowed from Justice Scalia's pen if any other Justice had resorted to such anti-originalist "idiocy" in a different context. Which just goes to show, as Sunstein has said, that many originalists are peddling nothing more than "a political program in legal dress." ((Just as they are peddling "token federalism," that is to say, the idea that states are not subject to federal legislative schemes when such subjection leads to results that political conservatives dislkie, but that states are subject to such schemes when such subjection leads to results that political conservatives like. Perfect example: The United States Code provides a "safe-harbor" deadline for states to submit a slate of electors such that those electors cannot be subject to later challenge. I know, this sounds familiar. It is. What this means is that, if the state certifies a slate of electors by date X (i.e. certifies to Congress that electors X are its electors by date X), then, at no subsequent point in time can a different slate of electors be certified or mount a challenge to this certification. The U.S.C., however, does not REQUIRE that a state submit its slate by this deadline; it simply provides that should the state wish to avoid challenge, it must present the slate by date X. Moreover, a state OBVIOUSLY cannot avail itself of this deadline for the sole purpose of certifying fraudulent electors (i.e. a state cannot say, "We have the absolute right to submit our slate by the safe harbor deadline, or else elector X, whom the Constitution disqualifies from being an elector, might subsequently be challenged because he does not meet the Constitutional criteria). Finally, and most importantly, the "safe harbor deadline" is something that the law calls "non self-enforcing." Since, as the Supreme Court (wrongly, I think) said in Bush v. Gore that Americans have no right to vote for electors, a state obviously does not have the (lesser) right to have its desire to meet the safe-harbor deadline judicially enforced (say, when, an opposing party wants to extend the time needed to conduct a recount beyond the safe harbor cut-off) - not just because the greater absence of a right implies the lesser, but because a statutory provision such as the safe-harbor deadline that merely states what person X must do to receive benefit Y cannot be JUDICIALLY enforced, as a general matter, such that person X will be granted that benefit, UNLESS the statute spells out a way of judicial enforcement. The safe harbor deadline spelled out no such way (i.e. it did not say, "If state X wants to meet the safe harbor deadline, and perceives someone is interfering with its ability to do so,the state may file a motion with the Court, asking the court for an order to grant the state the right to certify its electors in accordance with its wish with the deadline). Of course, in Bush v. Gore, the Supreme Court, as it held that we have no fundamental right to vote for electors, simultaneously held that Florida's wish to meet the deadline could be granted by the Supreme Court, and because it could, there was a "federal question" in the case necessitating the Supreme Court hear the case. Wonder why the case cited -inappropriately - just about one precedent in its entire 30 pages and why there has not been so much as a single convincing intellectual defense of it? Well, wonder no more. Crap can't cite reality in its defense. Oh, and by the way, did I mention that in 1960, when we had the same "safe harbor" provision, Congress considered two competing slates of Alaska electors after the safe-harbor deadline had passed, therefore putting the lie to the Supreme Court's contention that a state has a fundamental right for the sake of it in having its desire to meet the deadline enforced?)).
It must get tiresome for legal academics and judges to continue having to explain the injustices that originalism would produce, its methodological flaws, and the hypocrisy of many of its adherents. But maybe if Justice Scalia keeps calling legions of revered jurisprudential opponents "idiots," the media will begin to pick up on these things. And maybe then people will begin to understand the radicalism of President Bush's pledge to nominate Justices "in the mold[iness?] of Scalia and Thomas."
posted by EnterCenter at 1:22 PM
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