In Defense of the Living Constitution
Dahlia Lithwick has an interesting piece posted at Slate on the topic of originalism. She writes:
Well, I always enjoy a challenge, so here goes nothing . . .
On the issue of judicial philosophy, conservative commentators (as is so often the case) present us with a false choice. We are told that we must choose between originalism and a judicial free-for-all. In a typical article in the National Review, Edward Whelan casually describes all "non-originalist decisions" as "judges doing whatever they want."
In reality, however, originalism is more of a soundbite than a functioning judicial philosophy, an idea more useful to ranting commentators than actual judges. In fact, I doubt that there is even one practicing federal judge who is a consistent originalist. And there's a good reason for that: following originalist principles to their logical conclusion would, in a great many cases, lead to nearly universally unpalatable results. A good example of this is provided by Armando at Daily Kos. He points out that an originalist interpretation of the Equal Protection Clause of the 14th Amendment would render it virtually powerless to prevent sex discrimination. After all, it's quite clear that the drafters of the 14th Amendment did not intend for it to alter the rights of women in any significant way. Women were not even granted the right to vote until 1920, and then only by way of a separate amendment. If the drafters of the Equal Protection Clause did not intend for it to provide even basic suffrage for women, then from an originalist standpoint, it is unlikely that the clause has anything relevant to say about modern sex discrimination. Yet even the Scalias and the Thomases of the world don't read the Equal Protection Clause so narrowly.
In fact, they freely imbue the clause with non-originalist meaning when it suits them. For instance, both Scalia and Thomas insist that the Equal Protection Clause bars affirmative action. Yet the drafters of the 14th amendment, without question, did not intend to outlaw affirmative action. Indeed, the same legislators that passed the amendment simultaneously created the Freedmen's Bureau, a massive government agency dedicated solely to affirmative action.
Another example is the Establishment Clause of the First Amendment which provides the basis for the separation of church and state. There is a strong originalist argument that this clause is not applicable to the states, that it was only intended to prevent the federal government from interfering with the establishment of religion by the states (a view endorsed by Justice Thomas). Under this interpretation, the states would be free to sponsor churches, build monuments to Jesus, require Bible-study in public schools, etc.
Perhaps most troubling are the consequences of an originalist interpretation of the Constitution's separation of powers, which would render much of our current government inoperable. Over the past century, Congress has delegated more and more legislative and judicial responsibility to executive agencies. These administrative agencies (such as the FDA, EPA, SSA) use their rulemaking powers to make new "law" and their judicial powers to settle disputes. There is simply no way that Congress or the federal judiciary could handle these massive responsibilities without delegating them in this way. Yet originalist thinking would invalidate this entire arrangement on the grounds that executive agencies are usurping the powers of the legislative and judicial branches of government.
Moreover, self-described originalists have, on a number of occasions, insisted on reading principles into the Constitution that have no textual basis. As Professor Jack Balkin explains in a recent post at his blog, the dissenters in the Court's recent Kelo decision (which included Thomas and Scalia) went well beyond the text of the Fifth Amendment and were essentially arguing for a substantive due process right to property. These same judges, however, have long criticized the very concept of substantive due process. Similarly, there is a line of federalism cases, including New York v. United States (1992) and Printz v. United States (1997) in which the conservative Members of the Court have overturned federal laws based on implied "anti-commandeering principles" that have no textual basis in the Constitution.
Originalism, therefore, is not a functioning judicial philosophy, but rather an argument that is selectively deployed to justify particular judicial decisions. And the judges who most frequently resort to originalist arguments (e.g. Thomas) are the ones who most consistently reach conclusions that the vast majority of Americans would find unacceptable. Hence the large number of Supreme Court decisions in recent years where Thomas has written an opinion which no other Justice will join.
The reality is that most, if not all, judges use modern values and understandings to inform their Constitutional decision-making. And this is the way it should be. There is every reason to believe that the framers of our Constitution intentionally built flexibility into the document. They chose phrases like "due process" and "cruel and unusual punishment" precisely because they knew societal values would change over time. They could have been much more specific, chosen their words much more precisely, but they didn't, and for obvious reasons. They were forward-thinking men who were well aware of the generally progressive march of history. They wanted to allow their fledgling nation the room to grow and progress, to evolve and adapt to new situations.
Furthermore, they fully subscribed to the English common law tradition by which judges slowly made the law through incremental, case-by-case decision-making. At the time of the drafting of the Constitution (and for quite some time thereafter), virtually all civil and criminal law was common law (i.e. judge-made law). The movement by legislatures to codify the common law did not happen till much later in our history. In other words, the framers of the Constitution would have laughed out loud at the notion that judges shouldn't "make the law." It's not difficult to imagine, therefore, that the framers understood and intended that their vague language would be interpreted by future judges through a similar process of incremental decision-making. Such a process is fully consistent with the anglo-American tradition with which they were familiar.
Does belief in a "living Constitution" require blind acceptance of the Court's reasoning in Roe v. Wade and other controversial opinions? Does it require acceptance of the concept of "penumbras" emanating from various provisions of the Constitution? Of course not. Roe was never a particularly good example of liberal judicial reasoning (though it's not indefensible either), which is undoubtedly why critics of the "living Constitution" focus on it so incessantly. As Cass Sunstein has long pointed out, however, many "liberal" judges are minimalists, not Brennan-style democratic perfectionists. Brennan's approach to constitutional interpretation doesn't have nearly as many adherents as it once did, even among otherwise liberal legal scholars and judges. But that certainly doesn't mean that the only other option is "dead Constitution" originalism.
As I said before, the vast majority of judges, whether they choose to acknowledge it or not, use modern values and understandings to inform their interpretations of the Constitution. In that sense, the Constitution is very much a living document. Not only is there nothing objectionable about that, but in all likelihood, it is what the framers of our Constitution intended and expected would happen.
"In a very thoughtful essay published last weekLithwick ends her article with the following plea:
in the American Prospect, Adele M. Stan argues,
'Liberals have done virtually nothing to explain the
Constitution to regular people in terms they
understand.' Before you call those sentiments classist
or elitist, ask yourself when you last read a compelling
defense of the 'living Constitution' in your daily
newspaper. And I don't mean a defense against the
'activist judiciary' charge--these are not the same things.
All too often these two criticisms are conflated, but it's
certainly possible to imagine a 'living Constitution' as
interpreted by hands-off, minimalist judges.
A Nexis search for the words 'living Constitution' turns
up literally dozens of stories by conservatives bashing
the premise into a hopeless pulp. But it's hard to find a
creditable recent defense of the Constitution as something
greater than the span of its own four corners. And I
wonder why."
"So, I turn to you, dear readers, smart thinkers, andKevin Drum, citing Lithwick's article, echoes her plea, observing that "[i]t's time to stop allowing originalism to roam the field unopposed."
posters of great wisdom in the Fray, to ask simply:
Is the living Constitution dead? Are the critics correct
--was it all just a great drunken binge of Brennan and
Thurgood Marshall's? What is left in its place? Is there
room for a Brennan-esque defense anymore? Or am I
correct in guessing that Scalia is right this time?"
Well, I always enjoy a challenge, so here goes nothing . . .
On the issue of judicial philosophy, conservative commentators (as is so often the case) present us with a false choice. We are told that we must choose between originalism and a judicial free-for-all. In a typical article in the National Review, Edward Whelan casually describes all "non-originalist decisions" as "judges doing whatever they want."
In reality, however, originalism is more of a soundbite than a functioning judicial philosophy, an idea more useful to ranting commentators than actual judges. In fact, I doubt that there is even one practicing federal judge who is a consistent originalist. And there's a good reason for that: following originalist principles to their logical conclusion would, in a great many cases, lead to nearly universally unpalatable results. A good example of this is provided by Armando at Daily Kos. He points out that an originalist interpretation of the Equal Protection Clause of the 14th Amendment would render it virtually powerless to prevent sex discrimination. After all, it's quite clear that the drafters of the 14th Amendment did not intend for it to alter the rights of women in any significant way. Women were not even granted the right to vote until 1920, and then only by way of a separate amendment. If the drafters of the Equal Protection Clause did not intend for it to provide even basic suffrage for women, then from an originalist standpoint, it is unlikely that the clause has anything relevant to say about modern sex discrimination. Yet even the Scalias and the Thomases of the world don't read the Equal Protection Clause so narrowly.
In fact, they freely imbue the clause with non-originalist meaning when it suits them. For instance, both Scalia and Thomas insist that the Equal Protection Clause bars affirmative action. Yet the drafters of the 14th amendment, without question, did not intend to outlaw affirmative action. Indeed, the same legislators that passed the amendment simultaneously created the Freedmen's Bureau, a massive government agency dedicated solely to affirmative action.
Another example is the Establishment Clause of the First Amendment which provides the basis for the separation of church and state. There is a strong originalist argument that this clause is not applicable to the states, that it was only intended to prevent the federal government from interfering with the establishment of religion by the states (a view endorsed by Justice Thomas). Under this interpretation, the states would be free to sponsor churches, build monuments to Jesus, require Bible-study in public schools, etc.
Perhaps most troubling are the consequences of an originalist interpretation of the Constitution's separation of powers, which would render much of our current government inoperable. Over the past century, Congress has delegated more and more legislative and judicial responsibility to executive agencies. These administrative agencies (such as the FDA, EPA, SSA) use their rulemaking powers to make new "law" and their judicial powers to settle disputes. There is simply no way that Congress or the federal judiciary could handle these massive responsibilities without delegating them in this way. Yet originalist thinking would invalidate this entire arrangement on the grounds that executive agencies are usurping the powers of the legislative and judicial branches of government.
Moreover, self-described originalists have, on a number of occasions, insisted on reading principles into the Constitution that have no textual basis. As Professor Jack Balkin explains in a recent post at his blog, the dissenters in the Court's recent Kelo decision (which included Thomas and Scalia) went well beyond the text of the Fifth Amendment and were essentially arguing for a substantive due process right to property. These same judges, however, have long criticized the very concept of substantive due process. Similarly, there is a line of federalism cases, including New York v. United States (1992) and Printz v. United States (1997) in which the conservative Members of the Court have overturned federal laws based on implied "anti-commandeering principles" that have no textual basis in the Constitution.
Originalism, therefore, is not a functioning judicial philosophy, but rather an argument that is selectively deployed to justify particular judicial decisions. And the judges who most frequently resort to originalist arguments (e.g. Thomas) are the ones who most consistently reach conclusions that the vast majority of Americans would find unacceptable. Hence the large number of Supreme Court decisions in recent years where Thomas has written an opinion which no other Justice will join.
The reality is that most, if not all, judges use modern values and understandings to inform their Constitutional decision-making. And this is the way it should be. There is every reason to believe that the framers of our Constitution intentionally built flexibility into the document. They chose phrases like "due process" and "cruel and unusual punishment" precisely because they knew societal values would change over time. They could have been much more specific, chosen their words much more precisely, but they didn't, and for obvious reasons. They were forward-thinking men who were well aware of the generally progressive march of history. They wanted to allow their fledgling nation the room to grow and progress, to evolve and adapt to new situations.
Furthermore, they fully subscribed to the English common law tradition by which judges slowly made the law through incremental, case-by-case decision-making. At the time of the drafting of the Constitution (and for quite some time thereafter), virtually all civil and criminal law was common law (i.e. judge-made law). The movement by legislatures to codify the common law did not happen till much later in our history. In other words, the framers of the Constitution would have laughed out loud at the notion that judges shouldn't "make the law." It's not difficult to imagine, therefore, that the framers understood and intended that their vague language would be interpreted by future judges through a similar process of incremental decision-making. Such a process is fully consistent with the anglo-American tradition with which they were familiar.
Does belief in a "living Constitution" require blind acceptance of the Court's reasoning in Roe v. Wade and other controversial opinions? Does it require acceptance of the concept of "penumbras" emanating from various provisions of the Constitution? Of course not. Roe was never a particularly good example of liberal judicial reasoning (though it's not indefensible either), which is undoubtedly why critics of the "living Constitution" focus on it so incessantly. As Cass Sunstein has long pointed out, however, many "liberal" judges are minimalists, not Brennan-style democratic perfectionists. Brennan's approach to constitutional interpretation doesn't have nearly as many adherents as it once did, even among otherwise liberal legal scholars and judges. But that certainly doesn't mean that the only other option is "dead Constitution" originalism.
As I said before, the vast majority of judges, whether they choose to acknowledge it or not, use modern values and understandings to inform their interpretations of the Constitution. In that sense, the Constitution is very much a living document. Not only is there nothing objectionable about that, but in all likelihood, it is what the framers of our Constitution intended and expected would happen.
2 Comments:
I think much of the desire for constitutional-originalism stems (maybe just indirectly) from a desire for biblical-originalism and a fear of "moral-relativism".
Once any interpretation is allowed, some people lose all their moorings and are adrift, angry, and afraid.
So many things to respond to, and so little time. Let me start with the points on which I agree with you, and we'll get back to the more contentious issues in a moment. I should declare my biases at top, viz., that I consider myself a Republican and and originalist in the Scalian mold. Having thoroughly alienated you, I will begin. ;)
I
The things I agree with you with are as follows.
Firstly, I agree that "originalism" as used as a soundbite by many conservative commentators is as empty as their use of "strict constructionist", the term originalism has superceded as buzzword of the month. However, merely because both are malused does not rob either of meaning; tell Hugo Black that strict construction is a meaningless term and he'll kick your ass. A lot of conservatives don't even want originalist judges, and if you ever needed proof of that, it was provided earlier this year in ex rel theresa schaivo - what they want, admit it or not, is conservative Judges. They have one in John Roberts. I am fairly sure they do not have an originalist in Roberts.
Secondly, I agree with you that originalists do deviate from the strictures of the faith from time-to-time. As I will come back to in a moment, it is hard to square Bush v. Gore against an originalist reading of the constitution. But humans are fallible creatures, and sometimes people lapse. But this is a commentary on the willingness of men to follow an idea to its logical conclusion, not a commentary on the validity of the idea. We do not read that Jesse Jackson and Pat Robertson are Christians and therefore dismiss Christianity - we dismiss Jackson and Robertson.
It should also be noted that originalists do not always agree, and this is sometimes mistaken (or seized upon) by the doctrine's enemies as evidence of bad faith. However, this is not true. For example, the moment the implications of the words "Justice Scalia, concurring in the judgement" set in, after Raich was handed down, the demands for defrocking and excommunication started in some quarters. But Justice Scalia's concurrence is not bad originalism - and neither is Justice Thomas' dissent. They both approached the same problem and reached different conclusions as to the scope of the necessary and proper clause. In this case, I agreed with Justice Thomas. But I do not agree with Justice Thomas on some other matters, for example, the negative commerce clause (q.v. Camps Newfoundland). This doens't in and of itself mean either of us is deviating from originalism, merely that we reach different conclusions. Originalism is an interpretative method, not a means of contruction.
Lastly, I agree that Justice Thomas is absolutely fearless about leading where his reasoning takes him. This point is also made by Mark Tushnet, and I think even people who dislike Thomas would grudgingly admit that he is fairly principled (even if they don't like the principles) and I think even people who really like Scalia would grudgingly admit that Nino is a little more apt to "bend the rules" to avoid a result he finds too unpalatable, a predilection rarely shared by Thomas.
II
With that having been said, now onto those areas with which I cannot agree with you. At root, and as a general preamble, my disagreement with you hinges on a point you made very early on: you note disappovingly that "we are told that we must choose between originalism and a judicial free-for-all." By implication, you obviously feel that there is a third alternative, and I quite simply disagree.
The first thing I disagree with you with is the suggestion - even by implication only - that Armando from Daily Kos has anything worthwhile to contribute on any subject, which he clearly does not. You have to allow me at least one fascetious comment. ;)
A
Secondly, and more importantly, you discuss equal protection and originalism. This is a huge topic, which could easily consume an essay-length comment, which I do not have the time to offer this evening. In brief, you discuss equal protection and voting, and equal protection for the rights of women. I will discuss each in turn.
The equal protection clause of the fourteenth amendment does not address matters of voting. (This is why, I suspect, neither Scalia nor Thomas has written at any length to defend their position in Bush v. Gore; while Rehnquist and O'Connor have the escape clause of never having claimed to be originlalists, tehre is no such get out for Nino). There is no indication in the text or structure of the amendment that this was intended to be the case, and the case is further supported by the context and subsequent practise under the clause. The mere fact that, a scant two years later, the need was felt for the 15th amendment to address voting for blacks, and a few decades later, the 19th amendment to address voting for women, testifies to this. Note also the subsequent need for the 24th and 26th amendments, both of which dealt with voting rights in a manner wholly redundant if the equal protection clause extended to voting.
As Scalia has pointed out, though, you know that today, someone would bring a lawsuit to the court saying "what could be a greater violation of equal protection than denial of the franchise?"; however, this view is unsupported by either the amendment's text or subsequent constitutional practise under it. If we read a text and find that our reading is atextual, and unsupported by longstanding tradition and practise, then it is our reading that is wrong.
B
With that having been said, it is as frequently a waved bloody rag that originalism would repeal women's rights as that it would overturn Brown. Neither theory holds much water, but since you agreeably chose not to dignify the rather silly Brown argument with a mention, I will address solely the women's rights issue. Let me attack the point this way. Two weeks ago, Robert Bork guested on Washington Journal, and a caller asked him, isn't it true that women don't have rights under the constitution, except the right to vote?
Bork fudged the answer, and I will never forgive him for that (that, or the infamous "ink blot" comment, as will become clear in about three paragraphs' time). It seems to me that those who attack originalism are often attacking either - out of duplicity - a straw man, or - out of ignorace - the wrong target. It is of no consequence what the framers' original intent was in drafting the 14th amendment was, for exactly the same reason that originalists reject the use of legislative history. When originalism first started to appear, Bork and Berger used (and may even have subscribed to) original intent, but that view was comprehensively demolished by the early 80s, and no serious originalist since at least that time has given a fig about original intent. Even the most cursorary reading of Scalia's A Matter of Interpreation should make this extremely clear, given that he expands much verbiage explaining why legislative intent (and thus, legislative history) is of little relevance.
It's usually best to let Nino speak for himself, so I will do so:
"The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."
The only way original intent is of any use is that understanding what the framers intended can serve as a guide to what the meaning of the words was, it being fairly common practise to avoid choosing words entirely inapposite to the purpose for which they are intended. But we are a nation of laws, not of men, and it is not the subjective intentions of the draftsmen (even assuming there were such a thing) that bind us, it is the text that was ratified. And that text accords full citizenship to women, entitled to all the priveleges and immunities thereby conferred, to the due process of law in all procedings, and the equal protection of the laws. This is what Bork should have said, and I regret that he did not.
C
You also touch briefly on incorporation, particularly as it applies to the first amendment. It is true that an originalist must reject incorporation by the due process clause, because originalism cannot co-exist with substantive due process, on which due process incorporation (DPI) rests. However, it is clear to me that the 14th amendment incorporated the first eight amendments of the constitution via the privileges or immunities clause (priveleges or immunities incorporation, or PII), a view shared by Justice Black.
Of course, this view holds that the slaughterhouse cases were wrongly decided, a view to which I adhere. Justice Thomas has his own view of the 1st amendment and incorporation (see, in particular, Cutter v. Wilkinson and Elk Grove v. Newdow), and I tend to view his view as somewhat idiosyncratic; I do not generally share it, but I have not spent sufficient time in contemplation of the matter to reject or commend it out of hand.
D
I can never resist a challenge regarding Kelo, and Jack's theory is too cute by half. While I don't intend to write a point-by-point rebuttal of Balkin's post (I wrote one; I hit "login and publish; blogspot ate it; I foreswore further comment), or Matthew Harrington's “Public Use” and the Original Understanding of the so-called Takings Clause, for that matter, I do not agree that Justice Thomas' dissent in Kelo was a non-originalist position, and Jack's attempt to tie it to the case that shall not be named is a silly premise and not his best work.
Because I have discussed this so frequently previously, I will instead link to comments just today at Althouse, and somewhat closer to the event at PrawfsBlawg, 1, 2 and 3. In general, both Printz and Thomas' Kelo dissent are well-rooted in text and long-standing constitutional norms.
E
Lastly, while I agree that codification did not become widespread until the mid-18th century, the framers granted to the Congress all legislative powers. They did not grant the Court legislative powers (expressio unius est exclusio alterius), and they did not grant the court the power to amend the constitution. Rather, they bequeathed us a written constitution, which by its very nature is intended to be static, as opposed to the unwritten, flexiable and evolving English constitution. The mere act of adopting such an instrument speaks to their intentions, which was that the constitution should define the boundaries and scope of the actions of the federal government, define the nature of its realtions to the states (and which powers were reserved from which), and stay put.
* * *
For the foregoing reasons, I respectfully dissent. As mentioned above, it is at root a disagreement that there is an alternative to originalism that constrains the discretion of judges; if you have one in mind, you don't mention it. What do you have to offer? While it is certainly true that originalism has some problems it remains - in Scalia's phrase - the lesser of two evils. If it is a choice between originalism restraining judges most of the time, and non-originalism restraining none of them none of the time, I choose originalism.
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