• January 21, 2011
    Tea Partiers and so-called "constitutionalists" have, to a large extent, successfully convinced swaths of the nation that they are the great defenders of the Constitution, and that all who disagree are crazed, unpatriotic or traitors, likely all three, writes Garrett Epps for The Nation.

    In "Stealing the Constitution," Epps, a correspondent for the Atlantic and a law professor at the University of Baltimore School of Law, notes the "toxic coalition of Fox News talking heads, radio hosts, angry ‘patriot' groups and power-hungry right-wing politicians" helping to fuel "poisonous rubbish" about the Constitution.

    The Tea Party and other fringe rightists are promoting a seriously cramped Constitution, one frozen in time and limiting of government. "It's easy to understand why conservative politicians and judges are trying to align their political program with a strained reading of the Constitution: Social Security, Medicare, environmental protection and aid to education have broad popular support. Even the healthcare program, so reviled by the Republican Party, will be almost impossible to repeal using the legislative process," Epps writes. (Indeed, the rightist majority of the House did pass a measure repealing the landmark health care reform law this week, but was quickly called on its blatant political posturing.)

  • January 4, 2011
    Justice Antonin Scalia's claim that the U.S. Constitution does not protect women from discrimination has riled "women's rights activists," reports The Washington Post, and stirred some critical examination of the justice's much-touted method of constitutional interpretation.

    Last fall in an interview, recently published by the California Lawyer, Scalia said, "Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society."

    Yale Law School professor Jack Balkin, in a Balkinization post, notes that Scalia's comments should not be news - he's provided similar commentary before. But Balkin writes that he does "have a few bones to pick with him about his originalist claims."

    Balkin writes:

    First, the central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

    Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That's not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination-- discrimination in basic civil rights against single women.


    Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution's framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964's ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia's arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today's world. That is to say, he doesn't really believe in originalism either when it comes to a very wide array of cases concerning federal governmental power.

  • November 17, 2010

    Originalism guest-starred on last Thursday's episode of "30 Rock," along with the constitutional theory's most recent supporter, "Mad Men" star John Slattery.

    Slattery played a congressional candidate who described himself as for small government, literally, saying: "If we have to have government, make it as small as possible: dwarves, tiny buildings, pizza bagels for lunch."

    Network executive Jack Donaghy spends the episode trying to boost Austin's campaign, but eventually decides he can no longer support his candidacy after seeing Austin's latest attempt at a campaign advertisement.

    Watch a clip of the ad, touting the candidate's originalism. (Click on the image below and scroll down to the second clip.)


  • October 21, 2010
    The Conservative Assault on the Constitution
    Erwin Chemerinsky

    By Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law and a preeminent scholar on constitutional law.
    Since Richard Nixon ran for President in 1968, conservatives have sought to change constitutional law in a conservative direction. To a large extent, in virtually every area of constitutional law, they have succeeded. The focus of my new book, The Conservative Assault on the Constitution, is to describe what has happened and how conservative presidents and justices have lessened constitutional protections and moved constitutional law significantly to the right.

    Between 1968 and 2009, Democratic Presidents appointed only two justices to the Supreme Court, Ruth Bader Ginsburg and Stephen Breyer, while Republican Presidents appointed a dozen justices. Many Republican-appointed justices - like Antonin Scalia and Clarence Thomas - are as conservative as any who have served on the Supreme Court. John Roberts and Samuel Alito have been everything that conservatives could have hoped for and liberals could have feared.

    That, of course, leaves Anthony Kennedy as the swing justice on the Court. But Kennedy, an appointee of President Ronald Reagan, is much more likely to side with the conservatives than with the liberals. Last year, there were 12 5-4 decisions split along ideological lines, with Roberts, Scalia, Thomas and Alito on one side, and Stevens, Ginsburg, Breyer, and Sotomayor on the other. Justice Kennedy sided with the conservatives in nine of these dozen cases and with the liberals in three. The year before, there were 16 ideologically divided 5-4 cases and Justice Kennedy sided with the conservatives in 11 of 16.

    The success of these justices in remaking constitutional law in a conservative direction must be understood as part of a larger conservative agenda. Because the Supreme Court decides cases one at a time, because not every case has come to a conservative result, and because Roe v. Wade has not been overruled, it is easy to underestimate the dramatic successes that conservatives have had.

    The focus of my book is to show what has happened across many areas of constitutional law. I examine six areas. Chapter 1 focuses on how a series of Supreme Court decisions in the 1970s, 1990s, and the last decade have led to schools that are increasingly racially separate and unequal.

  • October 1, 2010
    Searching for that five-minute sound bite on the best originalism has to offer? Stephen Colbert has delivered. In typical ironic fashion, he introduced his word of the day during Wednesday night's show: "Original Spin."

    "I say a document should never change its meaning unless it's your health insurance policy and you just got sick," he said. And with that, he turned to Justice Scalia to help him defend this policy:

    I've always said, a good Supreme Court justice is a constitutional scholar first. A time traveling mind reader second. And, as an originalist, Scalia argues that the idea that the Equal Protection Clause of Fourteenth Amendment protects women's rights is a "modern invention," because he says, in 1868 when it was written, nobody thought it was directed against sex discrimination. Evidently, back then, women hadn't been invented yet.

    Plus, the Fourteenth Amendment was created to protect the rights of newly freed slaves. That's why it strictly limits equal protection under the law to "All persons born or naturalized in the United States." So all Scalia is saying is that women aren't persons.

    Now ladies, please, don't take it personally. Which you can't, since constitutionally you're not persons. Scalia wants you to have rights, that's why earlier this year, he joined the majority in the Citizens United ruling, which found that corporations are people with constitutional rights. So ladies, all you have to do is incorporate. You see if I refuse to hire Carol Morris as a camera operator because I don't want her menstrual cycle attracting bears to my studio, she has no legal recourse. But if I mess with Carroll Morris Inc., that corporate American can sue me for discrimination.

    Likewise, gays don't have protection from sexual discrimination, Colbert reasoned, because "back in the 1860s there were no gay people."

    Now, if you're offended by Scalia's argument perhaps you should defend your rights with force of arms, but remember, by this argument the Second Amendment gives you the right to bear only blunderbusses and flintlock pistols.

    Watch the full video below.

    The Colbert Report Mon - Thurs 11:30pm / 10:30c
    The Word - Original Spin
    Colbert Report Full Episodes 2010 Election March to Keep Fear Alive