Originalism

  • August 16, 2011

    by Nicole Flatow

    Friday’s appeals court decision striking down the individual coverage provision of the health care reform law did not hinge on any “constitutional bedrock doctrines” so much as on Congress’s alleged imprecise use of terminology, University of Southern California law professor Edward Kleinbard writes in The Huffington Post.

    Had Congress framed the law as a “tax,” rather than as a “penalty” on those with certain incomes who do not buy health insurance, “the result apparently would have within its power,” even though the penalty envisioned by Congress is collected through the tax structure, Kleinbard writes.

    “We now must hope that the Supreme Court will see past the formalism of this analysis and conclude that the legislation in substance is completely constitutional,” he adds.

    Underlying the court's reasoning is the belief, also reflected in the recent debt-ceiling negotiations, that “government activity is largely hostile to prosperity and the pursuit of happiness, and therefore the less of it, the better,” Kleinbard writes.

    Kleinbard goes on to explain why this view is wrong, in his full column here. And The Atlantic’s Andrew Cohen adds to the discussion, articulating why this view has no place in a court decision.

  • August 15, 2011

    by Nicole Flatow

    Justice Antonin Scalia may be the Supreme Court’s “ultimate originalist,” but when it comes to the Second Amendment, he has recently embraced a living Constitution, UCLA law professor Adam Winkler suggests in a column for The Atlantic adopted from his forthcoming book, Gunfight: The Battle Over the Right to Bear Arms in America.

    In his article, Winkler traces the surprising and contradictory history of the U.S. right to bear arms, starting with the Founding Fathers’ own version of an “individual mandate” that required many citizens to purchase guns, while forbidding gun ownership for slaves, free blacks, and “law-abiding white men who refused to swear loyalty to the Revolution.”

    The National Rifle Association, founded as an organization to improve American soldiers’ marksmanship, was “at the forefront of legislative efforts to enact gun control” in the 1920s and 1930s, and only shifted to become a “lobbying powerhouse committed to a more aggressive view of what the Second Amendment promises to citizens” in 1977, Winkler explains.

  • July 11, 2011

    The Brookings Institution on July 18 will host a debate over competing visions between progressives on how to explain their understanding of the Constitution and constitutional interpretation.

    Distinguished University of Chicago Law School Professor Geoffrey R. Stone and Doug Kendall, founder and president of the Constitutional Accountability Center will debate their differing approaches, which they recently detailed in articles for Democracy: A Journal of Ideas.

    In their opening Democracy article, “The Framers’ Constitution,” Stone (pictured) and William Marshall, a former ACS Board member and a distinguished law professor at the University of North Carolina,  contend that the Constitution’s framers “understood that they were entrusting to the future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, ‘we must never forget it is a Constitution we are expounding … intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.’” (During the 2011 ACS National Convention, Stone provided a speech exploring some of his thoughts on framing the debate over constitutional interpretation. Video of his speech is available here.)

    Kendall and Jim Ryan, a distinguished law professor at the University of Virginia School of Law, explain in their opening article, “The Case for New Textualism,” that progressives “are losing the fight over the courts and the Constitution because conservatives have maneuvered us into running from, rather than embracing, the text of and history of the Constitution.” The two say, “New textualists look carefully at history – both the enactment history of particular provisions and the broader historical events that produced the need for the text – to understand the meaning of the Constitution’s text.” Kendall and Ryan offer a response to the Stone and Marshall here.

    In their response to the new textulism argument, Stone and Marshall write that in contrast they believe “the better way for progressives to articulate a genuinely principled theory of constitutionalism and win an informed public debate is to embrace the jurisprudence of John Marshall rather than the methodology of Antonin Scalia. We believe that our understanding of the Framers’ Constitution presents a more honest account of how constitutional interpretation operates in the real world, and is truer to the Framers’ understanding than a mechanical invocation of either originalism or textualism.”

    The Brookings Institution debate will be moderated by Senior Fellows E.J. Dionne Jr. and Benjamin Wittes. Visit here for more information, including registration, about the debate.  

  • June 28, 2011
    Guest Post

    By Richard M. Zuckerman. Litigation partner in the New York office of SNR Denton US LLP. Mr. Zuckerman was counsel for several amici curiae in Brown v. EMA.


    At oral argument, one “originalist” had kidded the other. “What Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?” Justice Alito asked.

    Justice Scalia gave his response on Monday, writing for a majority of the Supreme Court in Brown v. EMA, and striking down, on First Amendment grounds, California’s law making it a crime to give or sell a violent video game to a minor.

    While the decision broke no new ground in First Amendment jurisprudence, it is destined to be oft-cited because of the strength of its articulation of two principles: First Amendment protections do not depend on the nature of the medium. And the limited exceptions that the Court has recognized to the First Amendment -- Justice Scalia noted obscenity, incitement, and fighting words -- cannot be transmuted into other areas.

    “[V]ideo games communicate ideas -- and even social messages -- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection,” Justice Scalia wrote. “[W]hatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary’ when a new and different medium for communication appears.”

    Justice Scalia noted that obscenity is one of very few, limited exceptions to the First Amendment. The Miller/Ginsberg rule—which holds that the First Amendment does not preclude making it a crime to give a minor non-obscene sexual material that is “harmful to minors” -- cannot be expanded to make it a crime to give a minor violent material. Miller/Ginsberg simply adjusts the boundaries of “an existing category of unprotected speech,” the Court held. California’s attempt to use Miller/Ginsberg as a basis to restrict minors’ access to violent video games seeks “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”

    The Court rejected California’s argument that the regulation should be allowed to protect minors. “No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”

  • June 27, 2011

    Despite rhetoric from some Tea Party leaders that says the Obama administration is running rough shod over the founding document, the country is not in “danger of flipping the Constitution on its head,” writes Richard Stengel in an extensive piece for Time.

    Stengel, in “One Document, Under Siege," continues:

    Their view [Tea Party faithful] of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: ‘The Constitution was written explicitly for one purpose – to restrain the federal government.’ Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states. The states had extraordinary power under the Articles of Confederation. Most of them had their own navies and their own currencies. The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before.

    If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the ‘necessary and proper’ clause, which delegates to Congress the power ‘to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by the Constitution in the Government of the United States, or in any Department of Officer thereof.’ Limited government indeed.

    Stengel’s article takes a look at some of the more high-profile constitutional debates, such as those focusing on Congress’s power to regulate commerce, in the context of the landmark health care reform law, and the 14th Amendment’s birthright citizenship clause.

    In the concluding graphs, Stengel touches on the debate over constitutional interpretation, writing:

    The Constitution is silent much of the time. And that’s a good thing. Two hundred twenty-three years after it was written, the Constitution is more a guardrail for our society than a traffic cop. The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations. Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.

    See Stengel’s entire article here.

    Accompanying the article is a new Time poll, showing that 54 percent of respondents said they agreed that the government should interpret the Constitution “based on changes in society,” as opposed to interpreting “exactly what’s spelled out in the Constitution.” Forty-one percent of respondents said the government should “following exactly what’s spelled out in the Constitution ….”

    Regarding the 14th Amendment’s clause, which states that all persons born in the U.S. are citizens, 62 percent of respondents said the provision should not be revised.