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Originalism

May 12, 2011
Support for a Long History of Broad Commerce Clause Power
During oral argument this week on the health care challenges before the U.S. Court of Appeals for the Fourth Circuit, Judge Diana Gribbon Motz responded to the challengers’ attempt to distinguish between “activity” and “inactivity” for purposes of regulating under the Commerce Clause by saying:

When Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned 'activity' as a crucial factor.

In a reaction post to the argument, George Mason University law professor David Bernstein cautioned that embracing an 18th or early 19th century understanding of the Commerce Clause could be dangerous. But blogger and College of Saint Rose professor Scott Lemieux thinks the ACA easily stands up to early 19th century scrutiny — assuming, of course, “that the most important Supreme Court opinions of that period count.”

At Lawyers, Guns and Money, he explains:

The libertarian trick is to pretend that there was a consistent, uncontroversial understanding that the federal government had a very limited ability to regulate interstate commerce that was broken only during the New Deal. But, unless you believe that John Marshall and Alexander Hamilton lack the constitutional authority of Roger Taney and James McReynolds, that’s not the case. Looking at the long sweep of American history, it’s the Jacksonian and Lochner eras that are anomalous, and both were rejected as decisively as can be imagined.

Lemieux participated in an ACS phone briefing this week for bloggers on judicial nominations, during which he noted that the federal courts have long been skewed to the right due to the many Republic-appointed nominees.

As a consequence, he notes in a more detailed analysis of the oral argument forThe American Prospect, Tuesday’s oral argument before three judges appointed by Democratic presidents “were not necessarily indicative of the ultimate fate of the ACA.”

“But,” he adds, “they did reveal how weak the legal arguments against it are.”

Tags:
Fidelity to the Constitution, Methods of interpretation, Federal judicial selection, Originalism, Commerce clause, Supreme Court, Other courts, Constitutional Interpretation and Change, Judicial Nominations, Affordable Care Act, Health Care Reform
May 11, 2011
Unmasking the Real Revolutionaries
Guest Post

By Adam Winkler, a constitutional law professor at UCLA School of Law.

Tuesday’s oral argument in the U.S. Court of Appeals for the Fourth Circuit unmasked the true revolutionaries in the battle over health care reform. Ever since President Obama’s signature legislative accomplishment was enacted, opponents have taken to the airways decrying the law as a radical attempt to expand the power of the federal government. Never before has Congress regulated “inactivity” and forced citizens to do something like buy health insurance, they have insisted.

Of course, it doesn’t take long to find examples of Congress doing just that: forcing people to file tax returns, serve on juries, sign up for the selective service. But those are different, health care’s opponents argued, because none of them required individuals to purchase a product from a private party. When it was pointed out that Congress forced people to purchase firearms and ammunition in the militia acts of 1792, opponents once again came up with a creative answer. That was an exercise of Congress’s Militia Power, not the Commerce Power. Left unanswered was why Congress would have the power to mandate such transactions under any other clause but the Commerce Clause – an especially bewildering distinction given that we’re talking about mandated commercial transactions.

The judges on the Fourth Circuit were, indeed, bewildered.
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Tags:
Fidelity to the Constitution, Methods of interpretation, Originalism, Commerce clause, Other courts, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, Affordable Care Act, Guest Post, health care, Health Care Reform, individual coverage provision, U.S. Court of Appeals for the Fourth Circuit
May 2, 2011
The Supreme Court Majority Ignores the Text of the Federal Arbitration Act
Guest Post

By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

While many have decried the result in AT&T v. Concepcion – the invalidation of a state law that rendered unenforceable the waiver of class action suits in arbitration – little attention has been paid to the method utilized by the Supreme Court majority of five Republican nominated Justices. Professing to simply follow the “text” of the Federal Arbitration Act (“FAA”), the opinion for the Court written by Justice Scalia in effect took a black magic marker and crossed out the words of the text they didn’t like. Without those words in the statute, the result would indeed be true to the text. But just as aptly as the boy in the Hans Christian Andersen fable cried, “the Emperor has no clothes,” we must protest that ignoring the words of a statute is not a textual approach.

Throughout his career on the federal bench, Justice Scalia has famously touted the necessity for courts to rely primarily or even solely on the text of statutory provisions and to disregard “vague” notions of statutory purpose. That approach has served him and his colleagues often and well to justify narrow readings of civil rights and other modern progressive laws. Here, however, his professed “textualism” is fictitious.

The majority stated: “The overarching purpose of the FAA, evident in the text of §§ 2, 3, and 4, is to ensure the enforcement of arbitration agreements.” The Court conceded that § 2 includes an exception to this general policy, known as a savings clause, which “preserves generally applicable contract defenses.” But the Court completely ignored the savings clause when determining that the “objectives” of the FAA were thwarted by state law.

In plain English, the FAA seeks to ensure enforcement of arbitration agreements except when there are contract defenses, but the Supreme Court stated that the statute seeks to ensure enforcement of arbitration agreements when there are contract defenses. The Court read the exception out of the text and then concluded that the state law was an obstacle to federal law. This complete disregard of words in the text should not be paraded as a textual approach.

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Tags:
Methods of interpretation, Originalism, Supreme Court, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, AT&T Mobility v. Concepcion, Federal Arbitration Act, Guest Post
April 27, 2011
Epps on “Da Vinci Code Originalism” and the Citizenship Clause
“ ‘Originalism’ as many politicians practice it today has little to do with what the Constitution really says,” writes University of Baltimore law professor Garrett Epps in The Atlantic.

The Constitution’s Citizenship Clause, for example, should be read exactly as it is written: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States."

Yet “Da Vinci Code originalists” such as Sens. Paul Vitter, Mike Lee, Rand Paul, and Jerry Moran, suggest secret meanings where there are none, selectively quoting from the legislatively history to reach the conclusion that the children of undocumented immigrants born in the United States are not U.S. Citizens, Epps explains.

During a recent panel discussion on birthright citizenship co-hosted by the American Constitution Society and the Center for American Progress, Epps elaborated on the clear constitutional and historical underpinnings of birthright citizenship.

During the original debate on the clause, he explained, some expressed concern about so-called “gypsies” becoming citizens, calling them, “those people who flout our laws.”

This was what Epps termed the “Lou Dobbs moment" in the debate, and the drafters, unequivocally rejecting these concerns, had the following response: “How someone who professes such high regard for humanity and civilization could object to making citizens of these innocent children is simply beyond us.”

ACS and CAP are hosting a second lunchtime panel discussion May 11 on the potential impact of proposed laws that seek to repeal or limit the Citizenship Clause. Bookmark this link for more information about registering and watching the simulcast from your computer.

Watch video of the first panel discussion here, and read Epps’ full article in The Atlantic here.

Tags:
Fidelity to the Constitution, Methods of interpretation, Originalism, Constitutional Interpretation and Change, Equality and Liberty, Birthright Citizenship, Citizenship Clause
March 23, 2011
Popular Constitutionalism, Originalism, and the Individual Mandate
Guest Post
By Adam Winkler, a constitutional law professor at UCLA School of Law. This post is part of an ACSblog symposium marking the one-year anniversary of the Affordable Care Act.
The public debate over the constitutionality of the Affordable Care Act's minimum insurance requirement has an Alice in Wonderland feel about it. In a reversal of their usual positions, conservatives have embraced popular constitutionalism and liberals are the ones touting original meaning.
Opponents of the new national health care law were quick to recognize that the debate over the constitutionality of the minimum insurance provision would be fought not only in court but also in the street. While supporters of the law were brushing aside the legal arguments against the mandate, secure in the view that decades of case law put the reform on a firm doctrinal foundation, opponents immediately took to the blogs, newspaper editorials, and talk radio programs across the nation. Their argument was simple: Congress can't regulate "inactivity" and if it could there would be no more limits to federal power under the Constitution.

Notably absent from their arguments was the traditional basis for conservative constitutional critique: originalism. After three decades of insisting that the only way to properly interpret the Constitution was to rely on the original public meaning, conservatives all of sudden were making what can only be described as a constitutional policy argument. They didn't argue that the Framers thought the Constitution prevented Congress from regulating "inactivity." Rather, opponents of health care reform insisted that allowing Congress to reach inactivity was a bad idea whose acceptance would lead to a parade of horribles. Congress is going to make you buy an American car! Or, perish the thought, make you eat broccoli!

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Tags:
Fidelity to the Constitution, Methods of interpretation, Originalism, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, Adam Winkler, Affordable Care Act, Fidelity to the Constitution, Guest Post, Health Care Reform, Health Care Symposium, Originalism