Originalism

  • July 10, 2012

    by Jeremy Leaming

    While liberals continue to ponderously ponder how to refute the right’s method of constitutional interpretation called originalism, the right continues to advance a simplistic and destructive story that the Constitution is all about severely limiting the federal government’s reach. 

    For far too long liberals have obsessed over methods of constitutional interpretation, leaving rightists to advance the constitutional storyline, which says the nation’s governing document only promotes individualism, limited government, and of course Christianity.

    As law professor and historian William E. Forbath recently noted in an op-ed for The New York Times liberals have far too often shrugged their shoulders at this narrative, claiming that “rights and wrongs of economic life” are not addressed by the Constitution, but instead through politics.

    “That’s a major failing,” Forbath (pictured) writes, “because there is a venerable rival to constitutional laissez-faire: a rich distributive tradition of constitutional law and politics, rooted in the framers’ generation. None other than James Madison was among its prominent expounders – in his draft of the Virginia Constitution, he included rights to free education and public land.”

    In a more expansive piece for the book, The Constitution in 2020, Forbath explores the “historical heft” of a century-long effort “to make good on the constitutional justice of livelihoods and social and economic rights ….”

    For example, Abraham Lincoln and other founders of the Republican Party argued that equal rights also included “a fair distribution of initial endowments,” and FDR in his State of the Union proposing a Second Bill of Rights, said the government “owes to everyone an avenue to possess himself of a portion of [the nation’s wealth] sufficient for his needs, through his own work.”

    Moreover, Forbath noted, African Americans during the Civil Rights Movement strived to “craft a broader social rights agenda,” including the right to a decent income. During the Civil Rights movement, the federal courts took note of the efforts in “undoing the exclusion of black women from welfare rolls,” he continued.

    The Supreme Court in its 1970 Goldberg v. Kelly opinion, said, “From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty.”

  • July 6, 2012

    by Samantha Berkovits

    University of Texas law Professor William E. Forbath calls for liberals to champion a stronger interpretation of the Constitution that aims to squelch inequality. Those tempted to take up this cause, which Forbath presented in an op-ed in today’s New York Times, may find themselves facing an unfriendly battlefield, but Forbath is confident that history is on their side.

    The constitutional argument for equality may seem inherent in a document meant to “promote the general Welfare.” However, the recent victory for liberals in the Affordable Care Act case was ensconced in nearly 200 pages of opinion, with much of the language holding the potential to destroy the legacy of the New Deal, with rough consequences for an American public already facing a dangerous economic landscape. Forbath writes, “Even the new doctrine that the majority adopted may hobble efforts to condition federal grants-in-aid on compliance with national goals, like child-care assistance for the working poor.”

    Conservatives, Forbath notes, would have the public believe that the goal of the Constitution is to protect and establish “individualism, small government, godliness and private property.” In response to this “crackpot originalism” liberals have been playing defense, when they should have been on the offensive. According to Forbath, all the necessary tools to present a case for a Constitution that allows the government to, in the words of Justice Ginsburg, “regulate the national economy in the interest of those who labor to sustain it” can be found in American history.

  • June 26, 2012

    by Jeremy Leaming

    For what seems like decades a conventional wisdom, built largely by a handful of Supreme Court correspondents, has held that Justice Antonin Scalia is the high court’s most brilliant, disciplined, albeit ideological, member. He is also, according to this conventional wisdom, deliciously witty.  

    But thankfully, the Web has altered the narrative by giving forums to an array of writers who have been quick to poke holes in an increasingly tiresome and shoddy line of reporting. (It should be noted, however, that longtime Supreme Court correspondent Linda Greenhouse is not among the gaggle that built the fawning picture of a straight-shooting justice with a jolly wit. Indeed Greenhouse has taken Scalia’s sloppy work to task on numerous occasions.)

    Moreover the aging Scalia is simply not helping to advance the conventional wisdom. Though in fairness, he hardly seems concerned with what reporters, bloggers think or write about him. His constituency is made up of right-wing politicos and activists. He’s the Koch brothers’ justice.

    With each passing high court term, Scalia seems to becoming wackier, more out-of-touch, increasingly shrill. And he’s being called out for his nuttiness with growing frequency.

    In a piece for Salon, Paul Campos, for instance, is not mincing words about the tottering justice. Scalia, Campos writes, “has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.”

    Campos was referring to Scalia’s concurring, dissenting opinion issued in Arizona v. U.S. where a majority of the justices invalidated three provisions, and weakened a fourth, of Arizona’s harsh anti-immigrant law. In his opinion Scalia not only railed against alleged dangers undocumented persons pose to Arizona, but also ruminated about state sovereignty and took a shot at President Obama’s actions on immigration policy.

  • June 18, 2012

    by Jeremy Leaming

    We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

    TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

    In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

    In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

    Winkler, a law professor at UCLA, continued:

    He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.

    Once again, we see that Scalia’s orginalism is a charade.

    There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

  • May 1, 2012

    by John Schachter

    Jonah Goldberg’s online tongue-in-cheek, ironic, satirical humor column on The Washington Post website this past weekend suffers from one major flaw: it’s apparently not intended to be tongue-in-cheek, ironic, satirical or humorous. Oh, well.

    Goldberg tackles, as he puts it, the “top five clichés that liberals use to avoid real arguments.” We’ll get to that part of the column in a moment.

    But first Goldberg opens by criticizing “mainstream liberals from Franklin Roosevelt to Barack Obama -- and the intellectuals and journalists who love them” for claiming to be “dispassionate slaves to the facts; they are realists, pragmatists, empiricists.” Liberals, he claims, insist that “if only their Republican opponents weren’t so blinded by ideology and stupidity, then they could work with them.”

    Let’s take a look at the facts. (Yes, we know Goldberg and his ilk don’t like when – cliché alert! – facts get in the way of a good argument. Wasn’t it Sen. Jon Kyl’s (R-Ariz.) spokesman who, when challenged on a ridiculously inaccurate statement Kyl used in a floor speech, insisted that Kyl’s comments and statistics were “not intended to be a factual statement”? Should we at least give him credit for at least admitting this distaste for facts?)

    Despite ALL the evidence to the contrary, many Republicans continue to believe that President Obama was not born in the United States.Polling in March 2012 – nearly a year after the White House released the president’s long-form birth certificate, which should have ended, once and for all, the ridiculous “debate” – found that large percentages of Republicans in three key primary states still doubted the facts.