Originalism

  • January 25, 2011

    Rep. Michele Bachmann's series of "Conservative Constitutional Seminars," which began yesterday with a lecture by Justice Antonin Scalia, represents an important opportunity to improve understanding of our nation's founding document, but also has "the potential to endanger that understanding - and future responsible constitutional interpretation," ACS Executive Director Caroline Fredrickson writes in an op-ed in Politico.

    The op-ed echoes a letter Fredrickson delivered to Bachmann Friday, encouraging the Tea Party Caucus founder to broaden the scope of constitutional seminars for Members of Congress by inviting ACS experts. Fredrickson said Bachmann's decision to name the series "Conservative Constitution Seminars," and her decision to invite as the first lecturer Justice Antonin Scalia, a leading proponent of originalism, suggest that "she is not looking for a truly comprehensive understanding of the Constitution."

    "Instead, she seems to be putting forth an interpretive approach that could be consistent with the political views of Tea Party Caucus members and a generally narrow, skewed view of the Constitution," Fredrickson writes. "... In practice, originalism has turned out to be little more than a result-oriented approach to judging - one that allows those ‘applying' it to reach right wing results antithetical to the values our society holds."

    She adds:

    When we look back on this period, we may be able to thank the Tea Party movement for its effort - albeit politically motivated - to spearhead this new focus on the Constitution. But the Constitution is too profound a document to limit this opportunity with partisan presentation.

    Read the full op-ed here, and read the letters Fredrickson submitted to Bachmann and House Speaker John Boehner encouraging the legislators to take advantage of ACS resources here and here.

  • January 24, 2011
    Guest Post

    By Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor, The University of Chicago Law School. Professor Stone is also Chair of the ACS Board of Directors. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC.
    The decision in Citizens United v. FEC poses an interesting puzzle about judicial consistency. The general assumption is that "conservative" justices are deferential and restrained in their interpretation of the Constitution. Citizens United stands this assumption on its head.

    After the era of the Warren Court, political conservatives like Richard Nixon attacked the Court as activist. The proper stance of a judge should be more passive. A judge should not second-guess the reasonable judgments of legislatures. Nixon therefore appointed justices - Burger, Blackmun, Powell and Rehnquist - who would be appropriately conservative - that is, restrained - in their exercise of the power of judicial review. They would not make the same "mistake" as the liberal justices of the Warren Court by too readily substituting their own judgments about the nature of a good society for those of elected officials. Justices respecting this approach certainly would not have voted to invalidate the McCain-Feingold Bipartisan Campaign Act.

    In the 1980s, political conservatives came up with a new theory of constitutional interpretation - originalism. The core idea of originalism was that, although the baseline for judicial interpretation should be restraint, justices were justified in being more muscular in their application of the Constitution when they were carrying out the original understanding of those who enacted the particular provision at issue in any given case. By so doing, originalist justices would avoid the activism of the Warren era, but avoid the abdication of judicial responsibility that is inherent in across-the-board judicial restraint. Whatever one thinks of originalism as an interpretative approach (I don't think much of it), it certainly leads to the opposite result in Citizens United. No one could argue with a straight-face that the original understanding of the First Amendment was to invalidate laws limiting the amount of money corporations could spend to elect their favored candidates.

    One has to wonder, then, what possessed the five conservative justices - Roberts, Kennedy, Scalia, Thomas, and Alito - to reach the result they did. Of course, this is hardly the only anomaly in the performance of these justices. There activist votes to invalidate laws in other areas, like affirmative action, gun regulation and commercial advertising, pose the same puzzle. If their votes are not shaped by the values of restraint or originalism, what is the underlying theory of their jurisprudence? Are they just calling balls and strikes?

  • January 24, 2011
    In advance of Rep. Michele Bachmann's first "Conservative Constitutional Seminar" today to be led by Supreme Court Justice Antonin Scalia, the American Constitution Society has offered its cadre of constitutional experts as a resource to Congress, suggesting in letters delivered to Bachmann and House Speaker John Boehner Friday that ACS experts' "insight and understanding about all aspects of the Constitution" would help "broaden and enrich the discussion."

    In her letter to Bachmann, ACS Executive Director Caroline Fredrickson recognized the planned Constitution classes as an important opportunity "to ensure that Members of Congress and all Americans are familiar with the U.S. Constitution in its entirety."

    She noted, however, that the classes have been termed "Conservative Constitutional Seminars," "suggesting that you do not intend to provide members of Congress with a comprehensive understanding of the Constitution, but instead will offer an interpretive approach that yields results consistent with the political views of Tea Party Caucus members who are organizing the seminars."

    Several legal commentators have questioned the propriety of Scalia's participation in a closed-door Tea Party Caucus-hosted event.

    George Washington University law professor Jonathan Turley, who wrote a column in The Washington Post criticizing Scalia's appearance, told the Minneapolis Star Tribune that Scalia's participation in such an event "suggests an alliance between a conservative justice and a conservative member of Congress."

    Such a private seminar before legislators presents the opportunity for improper influence by Members of Congress who have interests in a host of cases coming before the court, adds Richard Painter, former Chief Ethics Lawyer for President George W. Bush.

    "A lot of what the Supreme Court does is decide whether what Congress does is constitutional," Painter told the Star Tribune, noting that Bachmann is one of 63 House members who are filing a brief in support of the Florida lawsuit challenging the health care reform law.

    A written statement to the Star Tribune from Supreme Court spokeswoman Kathy Arberg about Scalia's participation in the class "referred to the event as a ‘constitutional seminar,' leaving out the qualifier ‘conservative' used by Bachmann's office," the newspaper notes.

    In her letters to Boehner and Bachmann Friday, Fredrickson offered to expand the discussion by making available ACS experts to participate in these seminars, or to provide other ACS resources.

    "You may recall that Speaker Boehner, in his memo, ‘New Constitutional Authority Requirement for Legislation,' included ACS as a resource on constitutional issues," Fredrickson wrote. She encouraged both Boehner and Bachmann to take full advantage of the resources they had appropriately recommended to their fellow legislators.

    The letter to Bachmann is available here, and the letter to Boehner is here.

  • 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.