During a week when many groups and individuals are celebrating the signing of the U.S. Constitution -- September 17 is Constitution Day -- it is appropriate to take note of how far we have fallen short of fulfilling certain fundamental rights promised in our governing document.
As Dean Erwin Chemerinsky noted in this ACSblog post, we are not just celebrating the signing of a parchment, we are actually taking note of how the Constitution has "been interpreted and implemented over the course of American history."
There are examples of where the judiciary has misinterpreted the broad language of the Constitution or where states have faltered or failed in implementation of constitutional mandates, but let's take one example that provides a stark picture of a nation failing to live up to a promise of genuine equality before the law. Let's look at the Sixth Amendment's right to counsel.
Fifty years ago this year, in a landmark opinion, Gideon v. Wainwright, the U.S. Supreme Court ruled that the Sixth Amendment's right to counsel means that people in danger of losing liberty have a right to counsel, even if they cannot afford it. In his majority opinion, Justice Hugo Black observed, "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
It’s hardly news that Justice Antonin Scalia does not much care for the term living constitution. In late 2011 before a U.S. Senate Committee, he went on a bit of a rant over methods of constitutional interpretation and ended by saying that he was “hopeful the living constitution will die.”
Longtime Supreme Court correspondent Tony Mauro, opting for an event featuring the increasingly predictable justice at a George Washington University instead of say ACS’s annual Supreme Court Preview, found Scalia once again championing so-called originalism and deriding a serious approach to interpreting the broad language of the U.S. Constitution.
Mauro reported that Scalia “urged everyone to celebrate the birthday of the U.S. Constitution tomorrow – except those who think the document is an ‘empty body’ whose meaning can be filled in by an activist judge. In that case, Scalia said in his best New York accent, ‘Fugget about the Constitution!’”
In a post today for ACSblog’s symposium on Constitution Day, which runs through this week, Erwin Chemerinsky, dean and distinguished law professor at the University of California, Irvine, explains why originalism, the method on constitutional interpretation trumpeted by Scalia, is inherently wobbly.
It’s obvious, Chemerinsky writes, why originalism has not been embraced by a majority of Supreme Court justices: “it makes no sense to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified).”
During that 2011 testimony before the Senate, Scalia was joined by Justice Stephen Breyer, who after listening to Scalia; urged the senators to remember John Marshall’s words, “It is a Constitution we are expounding.” According to Breyer, Marshall understood that the framers were thinking about a document that would endure for generations to come.
Scalia will likely continue to pine for the death of a living a constitution, but as Chemerinsky and many other constitutional law scholars have noted time and again the document contains, broad language for a purpose, one that eludes Justice Scalia.
by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law. This post is part of our 2013 Constitution Day symposium.
What are we celebrating on September 17, the 226th anniversary of the completion of the Constitutional Convention in Philadelphia in 1787? To be sure, we are celebrating a document that has facilitated democratic rule for over 200 years. We are celebrating a document that has allowed society, throughout American history, to debate many of its most controversial issues in legal terms. In other words, we are celebrating not just the document itself, but how it has been interpreted and implemented over the course of American history.
For several decades, conservatives have espoused originalism as a theory of constitutional interpretation. This is the view that the meaning of a constitutional provision is limited to its original intent. Originalism is the idea that the meaning of a constitutional provision is fixed when it is adopted and can change only by constitutional interpretation. In other words, originalists give no consideration to how the Constitution has been interpreted and implemented over the course of American history. In this way, they ignore what we really are celebrating about the Constitution.
Originalism does not reflect what the Supreme Court ever has done in interpreting the Constitution. The Court always has looked at the text and the underlying purpose and the original intent and traditions and precedents and contemporary social needs. Even the justices who most advocate originalism abandon it when it does not serve their purposes. Justices Scalia and Thomas, for example, are adamantly opposed to affirmative action and simply choose to ignore that the original intent of the equal protection clause was to allow race-conscious programs to benefit minorities. The Congress that ratified the Fourteenth Amendment, however, adopted many such efforts.
There is an obvious reason why originalism never has – and hopefully never will – be followed by a majority of the Court: it makes no sense to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified). Simple examples illustrate this. The Constitution uses the pronoun “he” to refer to the President and Vice President and the original understanding is that they would be men. An originalist would have to say that it is unconstitutional to elect a woman to these offices until the Constitution is amended.
The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. Under Justice Scalia’s theory of originalism, Brown v. Board of Educationwas wrongly decided.
During the ACS Supreme Court Preview, Professor Cynthia Jones of American University Washington College of Law highlighted the case, saying, “The Confrontation Clause and the rules on expert testimony clash in … Williams v. Illinois. That gives the Supreme Court an opportunity to tweak the Confrontation Clause analysis in light of its rules on expert evidence under rule 703.”
In a preview for SCOTUSblog, Supreme Court litigator Tom Goldstein gives context for the case, writing, “An expert testified about the results of a DNA test conducted by an analyst, but the DNA test was not admitted. The Supreme Court of Illinois held that there was no constitutional violation. The U.S. Supreme Court granted certiorari to resolve a conflict in the lower courts over the Confrontation Clause’s application in these circumstances.”
Law firms devoted to the interests of large corporations are not surprisingly taking advantage of a road being forged by the Supreme Court’s conservative wing to hobble efforts of consumers and workers to challenge corporate malfeasance.
Reporting on the high court’s recent opinion in AT&T v.Concepcion, in which the high court’s conservative wing led by Justice Antonin Scalia shut down a consumer led-class action lawsuit against one of the nation’s largest telecommunications companies,The New York Times noted, “Though the decision concerned arbitrations, it appeared to provide businesses with a way to avoid class-action lawsuits in court. All they need do, the decision suggested, is use standard-form contracts that require two things: that disputes be raised only through the informal mechanism of arbitration and that claims be brought one by one.”
In May 10 “newsletter” produced by Foley & Lardner LLP, John Douglas suggests that big employers should take advantage of the Concepcionopinion, and notes that the same conservative majority appears ready to continue protecting corporate interests, citing recent oral argument in Wal-Mart Stores, Inc. v. Dukes involving the nation’s largest worker class-action lawsuit alleging discrimination against the retailing giant.
Based on the behavior of the Justices during the oral argument [in Wal-Mart v. Dukes] of the case (http://tinyurl.com/3g4sxjk), it is already expected that the Supreme Court's upcoming decision involving a nationwide class action against Wal-Mart may throw some sand in the gears of a current juggernaut of class actions already attempting to raise claims of systemic discrimination based on sex and race. AT&T Mobility does the same thing. Particularly in the area of wage and hour class actions, AT&T Mobility should provide some long-awaited music for the ears of employers swamped by wave after wave of wage and hour class actions raising ever more technical, and “creative,” legal theories.
How is this? Simply put, at least potentially, every employer big enough to face significant class action litigation risk (generally those with more than a couple dozen employees) can now have its employees sign an agreement to arbitrate as a condition of employment — and furthermore, require that any claim brought in arbitration be an individual one.