Constitutional Interpretation and Change

  • July 17, 2015

    by Nanya Springer

    When Harvard Law School’s Laurence Tribe delivered the Chautauqua Institution’s 11th annual Robert H. Jackson Lecture on the U.S. Supreme Court last week, he had a lot of material to cover. The latest Supreme Court Term was eventful. From the Court’s historic recognition of same-sex marriage equality in Obergefell to its decision to uphold the Affordable Care Act health care exchanges in King, June 2015 produced decisions that will impact the way millions of Americans live their lives.

    While Professor Tribe discussed the significance of the high court’s opinions, he also addressed recent “momentous events that shook our country and complicated the meaning of our Supreme Court’s decisions,” including the racially motivated massacre at Mother Emanuel Church in Charleston which preceded the Court’s ruling in Walker v. Sons of Confederate Veterans by less than 24 hours.

    Tribe says, “My hope is to tie the electrifying events of June together with [former Supreme Court Justice] Jackson’s eloquence and pragmatism, to arrive at a brighter and larger sense of that Constitution, a less cramped understanding of constitutional law, and a more capacious vision of the Supreme Court’s role in giving the Constitution life.”

    A full transcript of the speech is available here and here, and the video can be viewed below.

     

  • July 8, 2015
    Guest Post

    by Saul Cornell, the Paul and Diane Guenther Chair in American History, Fordham University

    The so called new originalism has generated a good deal of academic buzz over the past few years.  (As is true for most forms of originalism the actual impact of the theory on the behavior of courts has been quite modest.)  It is hard to find much support for originalism among professional historians. Judged from the perspective of history, most new originalist scholarship seems methodologically simplistic and ideologically tendentious. Rather than move constitutional theory forward, new originalism represents a serious intellectual step backwards

    In the current issue of The Virginia Law Review Professor Lawrence Solum of Georgetown, a prominent new originalist, responds to some of this recent historical criticism. Solum’s variant of new originalism is the most sophisticated of the many rival theories now floating around.  Moreover, he maintains that his originalist approach to history rests on truths derived from philosophy and linguistics, insights that he claims historians have neglected. Although Solum has dressed up his theory in a ponderous philosophical jargon, his approach has done little more than wed the old law office history to a new law office philosophy. Stripped of its pretentious vocabulary, Solum’s theory leaves us at the same old impasse: originalism remains an ideology pretending to be a scholarly methodology.

    Solum describes his theory as follows:

    Because constitutional communication (like legal communication generally) is simply a form of human communication, theories of constitutional interpretation must be reconciled with the general theory of the way linguistic communication works that has been developed in the philosophy of language and theoretical linguistics.

    The first problem with such a claim is that it mistakenly asserts that there is a clear consensus in the philosophy of language about how to approach issues of meaning. This statement is clearly false. Philosophers remain deeply divided over these types of questions. Even if one assumes that some variant of Gricean pragmatics (the model Solum favors) is the correct theory to understand constitutional communication, Solum’s adaptation of Gricean ideas is questionable at best, and arguably is simply wrong-headed. The claim that constitutional communication is just another form of ordinary communication and must conform to the models used to comprehend ordinary language seems equally problematic. There are many forms of communication that do not conform to the rules governing ordinary language, for example, poetry, politics, and oratory.  (Indeed the very idea of a universal model of ordinary communication that transcends boundaries of time, space, and place itself seems deeply ethnocentric and has been challenged by many anthropologists.)

    The final problem with Solum’s model stems from his rendering of the current state of linguistic theory. Solum appears to have ignored the entire sub-fields of  socio-linguistics and linguistic anthropology. Rather than support his theory, empirical work in these two fields undermines virtually every one of Solum’s assumptions and claims about how language works. Indeed,  if one looks at Solum’s  model it clearly violates some of the most basic research protocols in these sub-fields by assuming the existence of a broad consensus on linguistic matters and ignoring the existence of rival speech communities within the dominant linguistic community under examination -- Founding era America. Although English speakers in America in 1788 may have been part of the same linguistic community, they were not all members of the same speech community. Indeed, the degree of linguistic consensus Solum posits for post-Revolutionary era America exceeds anything linguistic anthropologists have ever documented in decades of field research. Solum’s theory is really a form of American exceptionalism on steroids. Such a consensus model is not only hard to reconcile with the empirical evidence gathered by anthropologists about linguistic diversity in virtually every complex literate society, it does not fit the available historical evidence about Founding era constitutional culture. The Founding era was not characterized by consensus, but was defined by profound conflicts over the meaning of constitutional terms, constitutional interpretive methods, and constitutional aspirations. New originalists, including Solum have never grasped this basic fact which historians demonstrated decades ago. 

  • June 26, 2015
    Guest Post

    by Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The Supreme Court’s decision upholding a right to marriage equality for gays and lesbians surprised no one, but that makes the victory for liberty and equality no less important. Two years ago, the Supreme Court, in United States v. Windsor, declared unconstitutional a key provision of the federal Defense of Marriage Act. Justice Kennedy wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Court held that there was no legitimate purpose served by the federal government refusing to recognize same sex marriages.

    Virtually every lower court, except for the United States Court of Appeals for the Sixth Circuit, interpreted Windsor as providing a basis for invalidating laws prohibiting same sex marriage. As a result, as the Supreme Court considered the issue, marriage equality existed in 37 states and the District of Columbia. The issue before the Court was less about whether to extend marriage equality and more about whether the Court would take it away from all of the states where it existed by virtue of Court decisions.

    Ultimately, the Supreme Court’s decision reflects that there is no legitimate government purpose served by denying gays and lesbians of the right to marry. A history of discrimination never is enough to justify current discrimination. The argument based on procreation was silly.  Gay and lesbian couples will procreate – by adoption, surrogacy, and artificial insemination – whether they can marry or not. Their children should be able to benefit from marriage, the same as children of heterosexual couples.

    The Court’s decision will be regarded as a historic landmark for advancing equality and liberty. It is the Court playing exactly the role that it should in society:  protecting those who have been traditionally discriminated against and extending to them a right long regarded as fundamental.

  • June 23, 2015
    BookTalk
    The Grasping Hand
    "Kelo v. City of New Lond" and the Limits of Eminent Domain
    By: 
    Ilya Somin

    by Ilya Somin, law professor at George Mason University and an adjunct scholar at the Cato Institute. He writes regularly for the popular Volokh Conspiracy Blog, affiliated with The Washington Post.

    Ten years ago today, in Kelo v. City of New London, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner for purposes of promoting “economic development.” Although the Fifth Amendment only permits the taking of private property for  “public use,” the Court ruled that  virtually any potential public benefit qualifies as such, even if the government fails to prove that the supposed benefit will ever actually materialize. My new book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, is the first work by a legal scholar about one of the Supreme Court’s most controversial modern decisions.

    In the book I argue that Kelo was a grave error. In chapters 2 and 3, I discuss why economic development and “blight" condemnations that transfer property to private interests, are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. Though the ruling was consistent with previous precedents, the Supreme Court can and should have either overruled those badly flawed prior decisions or at least limited their scope (as Justice Sandra Day O’Connor advocated in her dissent).

    These types of condemnations victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Since the Supreme Court first ruled that a “public use” can be almost anything the government says it is, hundreds of thousands of people have lost homes or small businesses to  blight and economic development takings. Most were poor, racial or ethnic minorities, or lacking in political influence. Kelo itself exemplifies some of these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them, including Pfizer, an influential pharmaceutical firm that expected to benefit from the condemnations.  Moreover, the city's poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The only “development” produced so far consists of some improvised shelters constructed for the cats, by neighborhood residents.
     
    The Supreme Court's unpopular ruling triggered an unprecedented political reaction. Polls showed that over 80 percent of Americans oppose the ruling, a sentiment that cut across partisan, ideological, and racial lines. This is one of the rare issues where Ralph Nader, Rush Limbaugh, and the NAACP, were all on the same side.

  • June 19, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    I do not like the idea of confederate flags on license plates issued by the State of Texas, but I found the Court’s reasoning very troubling in allowing the Texas Department of Motor Vehicles to prohibit this. In Walker v. Texas Division, Sons of Confederate Veterans, the Court in a 5-4 decision, held that the Texas Department of Motor Vehicles did not violate the First Amendment in refusing to issue a license plate with the confederate battle flag.

    Texas, like all states, requires license plates on cars. In Texas, people can have either the general type of plates issued by the state or they may have specialty plates. One type of specialty plates are those where a non-profit organization asks the Texas Department of Motor Vehicles Board to approve a design and then issue plates with it. The Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a confederate battle flag, but the Board rejected the proposal.

    The Supreme Court held that the Board did not violate the First Amendment because license plates are government speech and when the government is the speaker it cannot violate the speech clause of the First Amendment. Justice Breyer, writing for the majority said, “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” The Court explained, “Were the Free Speech Clause interpreted otherwise, government would not work.” The government must be able to express messages such as to encourage recycling or energy conservation or vaccination of children.

    The Court said that the license plate is government speech and therefore the choice of the Board to not allow the confederate flag does not violate the First Amendment. The Court stressed that license plates have long communicated messages from the state and that license plate designs are perceived by the public as coming from the state. The Court said that Texas license plates are essentially government IDs. The Court stressed that Texas retains control over the content of its license plates. The Court said that Texas was not creating a forum for private speech, where the First Amendment would apply, but it was Texas speaking itself.

    It is easy to like the result in this case because confederate battle flags convey a message of racism that is inherently hurtful and divisive.   Indeed, it may be for exactly this reason that Justice Clarence Thomas was the fifth vote in the majority – joining Justices Breyer, Ginsburg, Sotomayor and Kagan – in an alignment that is rare on the Court.  In Virginia v. Black (2003), Justice Thomas was the sole dissenter arguing that the government should be able to ban cross burning because of its vile history and hateful message.