Originalism

First It Was Taney

The New Republic recently published a long but incredibly illuminating essay on the Supreme Court.It deserves to be read in its entirety.

The author, Brynn Tannehill, compared the Roberts Court to past Courts that today are widely considered to have decided important cases wrongly–beginning with the Taney Court. In 1857, that Court decided in Dred Scott that Scott was not a free man, that no Black person could be a citizen of the United States, and that Black people were not entitled to Constitutional protections. As Tannehill says, that decision doomed the country to civil war.

Worse, Taney’s Court effectively eliminated the rights of free states to prohibit slavery on their own territory– relying on the same sort of “originalist” logic used by Justice Alito in Dobbs v. Jackson.

Roger Taney was not the only Chief Justice to preside over a retrograde Supreme Court. Following the Civil War, the Court led by Chief Justice Morrison Waite, “delivered decision after decision that ended Reconstruction.”

In United States v. Reese, the court ruled 7–2 that “racially neutral” voter suppression measures such as poll taxes, literacy tests, and the grandfather clause were constitutional. In United States v. Cruikshank, the Waite court ruled 9–0 that the federal government had no right to arrest the people responsible for the Colfax Massacre, the 1873 Louisiana riot where dozens of Black militiamen were murdered by a white mob. The Waite court also decided unanimously in Minor v. Happersett that women do not have a constitutional right to vote.I

n Elk v. Wilkins, the Waite court ruled 7–2 that being born on U.S. soil did not grant citizenship to Native Americans. The court also upheld miscegenation laws 9–0 in the 1883 case Pace v. Alabama. That same year, a majority struck down the Civil Rights Act of 1875 in The Civil Rights Cases of 1883. Later, in 1896, under Chief Justice Melville Fuller, the Supreme Court enshrined segregation via Plessy v. Ferguson, under the rubric of states’ rights.

Ironically, these decisions were framed as protective of limited government and individual liberty–as Tannehill writes, “freedom in the abstract, but only in the abstract.”

As if to drive this point home, the Roberts court ruled in Shinn v. Ramirez that it doesn’t matter if a person is innocent based on the preponderance of the evidence; so long as procedure was followed, the state can still execute people. Justice in the abstract, and only in the abstract, all over again.

Then there’s the Roberts Court.

It struck down most of the Voting Rights Act . It permitted states to strip Native Americans of their right to vote using the pretext of preventing voter fraud. Worst of all, the court recognized that partisan gerrymandering is inconsistent with democracy, but declined to do anything about it.

The Roberts Court also seems intent on eviscerating Jefferson’s wall between church and state. It keeps finding that Christian organizations have a right to government money, as well as a “freedom” to discriminate against LGBTQ people, Jews, and others.

This is freedom in the abstract: Even if Jews and LGBTQ people were allowed to discriminate against Christians, it would have a negligible impact on Christians compared to Christians being permitted to discriminate against groups that make up much smaller percentages of the population. It is akin to saying Christians can only shop at Kroger, and Jews can only shop at Jewish-run businesses: The harm falls disproportionately on the minority groups.

Tannehill reviews several pending cases with potential to upend federalism:

But the real Dred Scott moment will be at hand when red states begin trying to extradite people from the blue states for the crime of getting abortions, providing abortions, or providing transition-related care to transgender people. Deep blue states have been creating haven and sanctuary laws to protect women, doctors, transgender people, and parents of trans youth. Both California and Massachusetts have passed sanctuary laws that would prevent people from being extradited for seeking abortions in their states. Given that eradicating abortion and eliminating health care for trans people have become the top social policy priorities for conservatives, the reaction from powerhouses like the Heritage Foundation has been swift: They see these blue-state moves as a direct threat to their agenda.

Eventually, the Supreme Court will have to decide, are people free once they leave a state like Texas? Or do they remain property of that state forever, even if they leave?

It’s entirely possible that this Court would follow Dred Scott and allow extradition. If so, officials in the “sanctuary” states would be under heavy pressure to refuse to comply.

At that point, federalism, and the Union, are dead, as states refuse to recognize the legitimacy of court decisions, and the comparisons with the Taney court are complete.

You really need to read the entire essay.

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Let’s Talk About Originalism

Today, the Senate is scheduled to elevate Amy Coney Barrett–a rigid ideologue who has never tried a case– to the Supreme Court. During the fiasco that has substituted for her vetting, we’ve heard a lot about “originalism.”

A while back, a reader of this blog reminded me of Thomas Jefferson’s opinion on originalism, contained in a letter he wrote to Samuel Kercheval on July 12, 1816. Jefferson wrote

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”

The philosophy of “originalism” was popularized by Antonin Scalia, who tended to employ his version of it when he disapproved of those “changes in manners and opinions” and ignore it in the many cases where it was clearly unworkable.

As I have previously explained, there is a version of originalism that does work, that does keep the constitution from being simply what nine people in black robes say it is.

In that version of originalism, courts are required to protect the values and principles that the founders were clearly trying to protect. James Madison could never have anticipated new methods of communication–radio, movies, television, the internet–but he had very clear ideas about protecting expression against government censorship. He, Jefferson and several other Founders also clearly expressed their beliefs in the importance of separating government from religion. Courts today must honor the Founders’ devotion to those and other principles embedded in and protected by the Bill of Rights.

Fidelity to those principles is the only workable and intellectually honest form of originalism, and as Edwin Chereminsky recently pointed out in an editorial for the New York Times, it is definitely not the originalism of Amy Coney Barrett.

Chereminsky is a prominent legal scholar, and Dean of Berkeley’s law school, and he points to the numerous problems with Barrett’s purported “public” originalism–the notion that the constitution must be interpreted to mean what the public thought it meant when it was ratified.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

The Dean points out that rejection of Barrett’s understanding of originalism is anything but new. He quotes the 19th century Chief Justice, John Marshall, who wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Furthermore,

It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.

Chereminsky makes a point I also make to my classes: how can “original public meaning” guide today’s courts in deciding whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes, or obtain stored cellular phone location information without a warrant?

The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.

Placing Barrett on the Supreme Court dishonors both the Court and the Senators who vote to confirm her.

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Definitions are important.

For example, I’m perfectly willing to say I believe in God–if God is defined as “the moral impulse.” I really do believe that most people (not Donald Trump, but most people) have an innate sense of fair play (of justice, if you will), and if we dub the moral guidance provided by that sense of justice as “God”– well then, I’m a believer. (If God is a white guy on a throne with a long white beard who watches to see whether I’m naughty or nice, ala Santa, not so much…)

In constitutional argumentation, originalism is a lot like God.

I mentioned in a prior post that I’ve been reading Erwin Chemerinsky’s We the People: a Progressive Reading of the Constitution for the Twenty-First Century. it’s a really great book, and I recommend it highly; it’s accessible, readable, and (seeing as how it’s from Erwin Chemerinsky) erudite.

Chemerinsky doesn’t have much use for originalism as defined by Scalia et al. I particularly enjoyed his reference to an oral argument in a case involving a California law prohibiting sale or rental of violent video games to minors. Scalia was pressing California’s attorney about whether the the law could be reconciled with the “original understanding” of the First Amendment. After a confusing back-and-forth, Justice Alito interrupted, saying “I think what Justice Scalia wants to know is what James Madison thought about video games.”

The reason I loved this anecdote is that it is so close to the way I introduce “original intent” in my classes of non-law-school undergraduate students. I ask them what James Madison thought about porn on the Internet. (These days, I’m just happy when the respondent knows who James Madison was…but that’s a subject for a different post.)

Obviously, Madison never contemplated either technology–that of video games or the Internet. But I would argue that’s not the end of the analysis, nor is it reason to declare the irrelevance of originalism properly defined.

James Madison may not have contemplated an Internet (and who knows what porn looked like in his day), but he did have firm convictions about the importance of free expression and the deleterious effects of government censorship. Original intent, properly understood, requires the courts to protect the principle that government ought not be able to decide which ideas may be communicated.

If, as Chemerinsky demonstrates, it is impossible to define original intent as the Scalia faction would do— as reliance on and limited to what was in the minds of the Founders at the time they drafted the Constitution– and if it is equally if not more unsatisfactory to say that the Constitution simply means what nine people in black robes say it means at any particular point in the nation’s history, then the only reasonable definition of originalism is protection of the principles and values that the Founders were intent upon protecting.

The value of free expression. The value of religious liberty. The importance of separating Church from State. The value of individual autonomy (aka privacy), and one’s right to be “secure” in one’s papers and effects. The values of due process and equal protection.

The principles and values that the Founders protected in the Constitution and the Bill of Rights are pretty clear, even if their application in many situations is less so. The only approach to Originalism that makes any sense is an approach that protects those values–an approach that serves as an anchor of continuity in a world where “facts on the ground” are always shifting and technology is constantly reshaping the issues with which courts must contend.

Does slapping a GPS device on a suspect’s car require a warrant? Is use of a new technology that lets police see whether you’re growing pot in your basement from across the street a search for purposes of the 4th Amendment? Do Congressional efforts to censor the Internet run afoul of the First Amendment?

What would our quarreling and philosophically differing Founders (there were a lot of them, remember) “intend” about these and hundreds of similar questions?

We can only answer these questions and others like them in a consistent and principled way by considering the limits the Founders placed on government and the values those limits were intended to protect.

It’s the only workable Originalism.

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The Gorsuch Nomination

As I have previously written, the most damning argument against Judge Gorsuch’s confirmation has nothing to do with his bona fides, which are impressive. It is the inescapable fact that his elevation to the Supreme Court will be illegitimate–the result of a very dangerous and cynical misuse of political power.

The Republicans’ refusal to afford Merrick Garland a hearing has been widely criticised as blatantly partisan, so I nearly fell off the treadmill yesterday morning during my workout, as I watched an interview with Lindsey Graham. Senator Graham praised Judge Gorsuch and rattled off his qualifications; then he opined–with no hint of irony–that failure to confirm him would be “political” and thus unprincipled.

Unfortunately, those conducting the interview failed to ask the obvious follow-up question: if failure to approve Gorsuch would be “playing politics,” what the hell was failure to even consider Garland?

The hypocrisy is breathtaking.

But what about Judge Gorsuch himself? His willingness–even eagerness–to fill a seat that will inevitably be seen as stolen is understandable; it’s the Supreme Court, after all. He is clearly highly intelligent; his academic background and professional experience are exemplary. His opinions–whether we agree with them or not–are clearly within the broad mainstream of the judiciary.

The two areas that trouble me are his professed version of originalism and his ambiguous approach to substantive due process.

True “originalism” comes in a number of respectable versions, but over the past couple of decades, the term has become code for “conservative in the mold of Scalia.” As Judge Posner (himself a conservative jurist) has persuasively noted, Antonin Scalia’s self-described originalism was incoherent and conveniently invoked. I don’t know any legal scholars who do not begin their analyses by looking to the Constitutional text and its historical meaning–and I don’t know any credible legal authority who would agree with a nice man I once debated, who insisted that “free speech” applied only to oral communications, not newspapers, books or other non-spoken transmittals of ideas. (“It says speech.”)

I often introduce the subject of original intent to my classes by asking “So, what did James Madison think about porn on the internet?” Usually, they laugh–and after we acknowledge that James Madison could never have envisioned the Internet, we consider how the Founders’ clear intent to protect the expression and exchange of ideas from government censorship should be applied to “facts on the ground” that those Founders could never have foreseen. In these situations, people of good will–all of whom believe they are honoring the principles the Founders intended to protect–can come to different conclusions about what fidelity to original intent requires.

I’d be very interested to know how Judge Gorsuch defines his originalism.

The Judge’s approach to substantive due process (sometimes called the Constitutional right to privacy) is unclear. Unlike our conversational use of the term, the constitutional right to privacy is shorthand for the individual’s right to self-determination, the doctrine that identifies fundamental individual rights that government cannot infringe without a compelling reason.

As the Court put it in one case, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Substantive due process requires government to respect the right of individuals to hold their own political and religious beliefs, define their own life’s meaning, choose their own life partners and control their own procreation. It defines certain areas of citizens’ lives as “off limits” to government. Our current privacy jurisprudence began when the Court struck down a Connecticut law prohibiting married couples from using contraception; the Court held that such intimate personal decisions were none of the government’s business.

Scalia was a ferocious critic of substantive due process; he had a crabbed, authoritarian view of individual liberty. (In Lawrence v. Texas, his acerbic dissent made clear his belief that government has the authority to outlaw fornication and masturbation.)

Would Judge Gorsuch agree? Will he follow Scalia, or respect existing legal precedents that protect our “intimate” behaviors and relationships from legislative assault?

Assuming Judge Gorsuch is confirmed to the “stolen seat” on the Court, his approach to originalism and substantive due process will be critically important. It would be nice to know his positions on those fundamental issues before the Senate votes.

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An Elastic View of Constitutional Responsibility

Okay–This week, it seems appropriate to talk about the late Justice Scalia, the battle over his replacement, and his much touted (albeit misunderstood and selectively applied) “originalism.”

Today, let’s consider where we are in the process for replacing Scalia.

Republicans in the Senate–notably McConnell and Grassley, who heads up the Judiciary Committee–have said they will refuse to participate in the Constitutionally-described process of “advice and consent.” Their argument, apparently, is that because this is an election year, and the President is in the last year of his tenure, he shouldn’t nominate a successor.

Between 1796 and 1988, at least 14 Justices have been confirmed during election years.

According to legal historians, Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the individual who’d been nominated—that is, just to obstruct the sitting President.

As a post from the Brookings Institution put it: the Republicans’ behavior is a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term.

And I thought they claimed to be “strict constructionists”!

The bottom line is that there is simply no precedent for the Senate refusing to discharge its constitutional duty to advise and consent, and if I had to guess, I would predict that McConnell et al will back away from that refusal once they recognize the extent of the political risk involved. (Of course, I’ve been wrong before when I have predicted rational behaviors from crazed partisans…)

Tomorrow, a decidedly critical consideration of Scalia’s controversial jurisprudential legacy…..

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