Originalism

  • April 18, 2013

    by Jeremy Leaming

    Whether Justice Antonin Scalia is toiling away in the cloistered halls of the Supreme Court or speaking before right-wing think tanks or groups of law school students he has over the years proven a knack for annoying large swaths of people. And does anyone believe Scalia cares?

    What Scalia has done is to tamp down a handful of Supreme Court reporters who for years assured us the conservative justice was the high court’s sharpest thinker and nimblest writer and witty too. Those reporters, however, have had to give up the narrative thanks in large part to Scalia’s increasingly cranky, bizarre, racially insensitive, and unnecessarily over-the-top commentary. It has also helped that a lot more people call out Scalia for his ridiculousness. He might thrill American Enterprise Institute or the Federalist Society, but others paying attention are increasingly seeing a serial offender, with a wobbly way of interpreting the Constitution.

    He’s on bit of a roll this year. In February during oral argument in Shelby County v. Holder, the case involving a challenge from a largely white community in Alabama to the Voting Rights Act’s integral provision, Section 5, Scalia said the Act perpetuates racial entitlement. But Scalia couldn’t stop there; he had to add flippantly that the reason Congress reauthorized the Voting Rights Act was that lawmakers couldn’t bring themselves to vote against a measure with such a “wonderful name.”

    What these offensive and flippant asides have to do with the constitutional and other questions before the high court is anyone’s guess. It’s likely the acidity was all theatrics.

    The high court in Shelby will hopefully decide the case by looking at the text and history of the Constitution, in particular the 14th and 15th Amendments, which give Congress great discretion  in creating and enforcing appropriate laws to ensure that states do not discriminate in voting. Scalia’s disdain for the Voting Rights was evident, so it is likely he’ll find a way to contort so-called “originalism” to argue for gutting the law’s primary enforcement provision. (Section 5 requires states and localities, mostly in the South, with long histories of suppressing the minority vote to obtain preclearance from a federal court in Washington, D.C. or the Department of Justice before altering their voting procedures, to ensure they do not intentionally or unintentionally discriminate against minority voters.)

    This week during a talk before some law students in Washington, D.C., Scalia piled on, telling the students that Section 5 is an “embedded form of “racial preferment.”

    George Washington University law school professor Spencer Overton pushes back against Scalia’s racially charged attack on the Voting rights Act.

  • February 14, 2013
    Guest Post

    by Doug Kendall, founder and president, Constitutional Accountability Center. This piece is crossposted at CAC’s Text & History Blog.

    One of the glaring things revealed by a review of the briefs in Shelby County v. Holder is the dearth of serious constitutional scholars in the fray supporting the conservative attack on the Voting Rights Act. On Shelby County’s side are the predictable array of political scientists like Abigail Thernstrom, election policy hacks like Hans von Spakovsky, and Reagan-era war horses like John Eastman. But where are the leading conservative constitutional thinkers on this – Mike McConnell, Eugene Volokh, Randy Barnett, Gary Lawson, and Steve Calabresi?  None of these bright-light conservative names grace the briefs on behalf of Shelby County and, so far, their silence has been deafening in the public debate.  As University of Kentucky law professor Josh Douglas has pointed out over at PrawfsBlawg, it’s really hard to find a credible academic to provide “balance” to a panel discussion on Shelby (though Cato’s Ilya Shapiro has gamely offered to fill this void).

  • February 11, 2013

    by Jeremy Leaming

    Despite attorneys in the Department of Justice’s Office of Legal Counsel who appear to have produced a lengthy justification for targeted killings that skewers the English language to wend its around constitutional principles such as due process before the government can deprive a person of liberty, President Obama has nonetheless taken solid action to counter the right’s take on the Constitution as a document that limits government’s ability to take collective action to protect and advance the nation’s welfare.

    In a piece for The New Republic, Simon Lazarus, senior counsel to the Constitutional Accountability Center, says it’s about time – likely long overdue -- that progressives provide a compelling alternative to the right’s simplistic, but effective rhetoric of a Constitution that is all about individual rights and a weak central government.

    Quickly after the president provided some staunchly liberal rhetoric in his Second Inaugural address, Republican lawmakers, such as Sens. Mitch McConnell (R-K.Y.) and Chuck Grassley (R-Iowa) brayed that the president was ushering in or attempting to an age of radical liberalism. Grassley, as noted here, also groused that the president had turned the Second Amendment on its head by arguing that new measures aimed at curbing gun violence were no threat to the individual right to bear arms.

    The president’s rhetoric on the Constitution, Lazarus writes, “echoes that of the Reconstruction Congresses which enacted the Thirteenth, Fourteenth and Fifteenth Amendments. In line with then-existing Supreme Court precedent, they believed Congress empowered to prevent interference with the exercise of individual rights created by constitutional prohibitions on government. Specifically, they held the federal government responsible for preventing private violence and intimidation designed to deter former slaves from voting and enjoying other constitutionally prescribed liberties. And they wrote into the amendments express authority for Congress to ‘enforce’ that responsibility.”  

     

  • January 29, 2013

    by Jeremy Leaming

    Out shilling yet another book, the right-wing Supreme Court Justice Antonin Scalia took yet another opportunity to repeat a line that is beyond tiresome. The U.S. Constitution is dead, Scalia said. Actually he said it was “dead, dead, dead.”

    Scalia has long taken umbrage with folks who refer to the nation’s governing document as a living one. In his talk at Southern Methodist University, Scalia expressed exasperation with schoolchildren who visit the high court and refer to a living Constitution. “It’s not a living document,” Scalia said. “It’s dead, dead, dead.”

    The justice has repeated this refrain too many times to count. (In fall 2011, he told a Senate committee that he hoped the “living constitution would die.”) So we understand that Scalia does not believe the Constitution provides liberty for women to make certain health care decisions, such as whether to have an abortion, or for marriage equality.

    Scalia argues that if you interpret the Constitution as an originalist you cannot come to the conclusion that liberty is that broad. Proponents of originalism argue that the Constitution’s text must be interpreted in a way the text was understood by the people who created the document’s language.

    Many others, however, have noted,  with increasing frequency that Scalia is an originalist only when it suits his ideology. Last year, UCLA law school professor Adam Winkler said “Scalia’s orginalism is a charade.”

    There are other ways to talk about the Constitution’s genius, however, that do not readily play into Scalia’s narrative. For instance in Keeping Faith with the Constitution, Goodwin Liu, Pamela S. Karlan and Christopher H. Schroeder explain why constitutional interpretation should be “faithful to what the Constitution is: not a legal code, not a lawyer’s contract, but a basic charter of government whose practical meaning arises from the continual adaptation of its enduring text and principles to the conditions and challenges facing each generation.”

    The authors continue:

    Preserving the document’s meaning and its democratic legitimacy requires us to interpret it in light of the conditions and challenges faced by succeeding generations. We use the term constitutional fidelity to describe this approach. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires judges to ask not how its general principles would have applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of concerns, conditions, and evolving norms of society. As Jack Balkin has put it, ‘if each generation is to be faithful to the Constitution and adopt the Constitution’s text and principles as its own, it must take responsibility for interpreting the implementing the Constitution in its own era.’

    The entire book is available here. It’s an accessible and short read and offers a strong counter to a tired refrain about a “dead” Constitution that is somehow relevant today.

  • August 9, 2012

    by Jeremy Leaming

    Washington Gov. Chris Gregoire’s selection last fall of a long-serving King County judge with a varied and sterling legal background to replace a retiring justice on the state’s high court, was widely lauded among the state’s legal community as a solid move, as Eli Sanders reported earlier this summer for the Seattle publication, the Stranger.

    But the way in which that justice, Steve González, retained his seat yesterday in a statewide election should prompt state officials in Washington and for that matter the other states that choose to elect judges to reconsider the process.

    Although González (pictured), among the state’s first of Latino heritage to serve on the Washington State Supreme Court, won his seat with 58 percent of the statewide vote, his challenger Bruce Danielson garnered 43 percent of the vote and carried 30 of 39 counties. Danielson did so, as Sanders reports, without raising any money and with his hometown Kitsap County Bar Association declaring he possessed “zero qualifications” to serve on the high court.

    Sanders, as well as others in the state, took note of what occurred: with little information, many voters picked the guy with the “very, very white-sounding name.” The state, Sanders reported did not create and send out voter guides and only “6 or 7 counties” created guides. The state cited budgetary reasons for failing to educate voters.

    Matt Barreto, a political science professor at the University of Washington, told The Seattle Times that some voters simply would not vote for a guy named González, especially in areas dominated by anti-Latino sentiment.

    “So it’s not rocket science; we know these things are happening,” Barretto said.

    González overcame prejudice by raising and spending money to educate as many voters as possible.

    Before being tapped by the governor, González had served ten years as a trial judge on the King County Superior Court, presiding over criminal, civil, juvenile and family law cases. Before that lengthy stint as a judge, he practiced criminal and civil law, and served as an Assistant United States Attorney in the Western District of Washington. During his tenure as an Assistant U.S. Attorney he helped successfully prosecute a high-profile international terrorism case, for which he garnered two awards from the U.S. Department of Justice. Moreover, González has received outstanding ratings from an array of bar associations, such as the King County Bar Association, which deemed him “Exceptionally Well Qualified,” and the Tacoma Pierce County Bar Association Judicial Evaluation Committee, which did the same.