• September 16, 2013

    by Jeremy Leaming

    It’s hardly news that Justice Antonin Scalia does not much care for the term living constitution. In late 2011 before a U.S. Senate Committee, he went on a bit of a rant over methods of constitutional interpretation and ended by saying that he was “hopeful the living constitution will die.”

    Longtime Supreme Court correspondent Tony Mauro, opting for an event featuring the increasingly predictable justice at a George Washington University instead of say ACS’s annual Supreme Court Preview, found Scalia once again championing so-called originalism and deriding a serious approach to interpreting the broad language of the U.S. Constitution.

    Mauro reported that Scalia “urged everyone to celebrate the birthday of the U.S. Constitution tomorrow – except those who think the document is an ‘empty body’ whose meaning can be filled in by an activist judge. In that case, Scalia said in his best New York accent, ‘Fugget about the Constitution!’”

    In a post today for ACSblog’s symposium on Constitution Day, which runs through this week, Erwin Chemerinsky, dean and distinguished law professor at the University of California, Irvine, explains why originalism, the method on constitutional interpretation trumpeted by Scalia, is inherently wobbly.

    It’s obvious, Chemerinsky writes, why originalism has not been embraced by a majority of Supreme Court justices: “it makes no sense to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified).”

    During that 2011 testimony before the Senate, Scalia was joined by Justice Stephen Breyer, who after listening to Scalia; urged the senators to remember John Marshall’s words, “It is a Constitution we are expounding.” According to Breyer, Marshall understood that the framers were thinking about a document that would endure for generations to come.

    Scalia will likely continue to pine for the death of a living a constitution, but as Chemerinsky and many other constitutional law scholars have noted time and again the document contains, broad language for a purpose, one that eludes Justice Scalia.

  • September 16, 2013
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law. This post is part of our 2013 Constitution Day symposium.

    What are we celebrating on September 17, the 226th anniversary of the completion of the Constitutional Convention in Philadelphia in 1787? To be sure, we are celebrating a document that has facilitated democratic rule for over 200 years. We are celebrating a document that has allowed society, throughout American history, to debate many of its most controversial issues in legal terms. In other words, we are celebrating not just the document itself, but how it has been interpreted and implemented over the course of American history.

    For several decades, conservatives have espoused originalism as a theory of constitutional interpretation. This is the view that the meaning of a constitutional provision is limited to its original intent. Originalism is the idea that the meaning of a constitutional provision is fixed when it is adopted and can change only by constitutional interpretation. In other words, originalists give no consideration to how the Constitution has been interpreted and implemented over the course of American history. In this way, they ignore what we really are celebrating about the Constitution.

    Originalism does not reflect what the Supreme Court ever has done in interpreting the Constitution. The Court always has looked at the text and the underlying purpose and the original intent and traditions and precedents and contemporary social needs.  Even the justices who most advocate originalism abandon it when it does not serve their purposes. Justices Scalia and Thomas, for example, are adamantly opposed to affirmative action and simply choose to ignore that the original intent of the equal protection clause was to allow race-conscious programs to benefit minorities. The Congress that ratified the Fourteenth Amendment, however, adopted many such efforts.

    There is an obvious reason why originalism never has – and hopefully never will – be followed by a majority of the Court: it makes no sense to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified). Simple examples illustrate this. The Constitution uses the pronoun “he” to refer to the President and Vice President and the original understanding is that they would be men. An originalist would have to say that it is unconstitutional to elect a woman to these offices until the Constitution is amended.

    The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. Under Justice Scalia’s theory of originalism, Brown v. Board of Education was wrongly decided. 

  • September 22, 2011

    by Jeremy Leaming

    Federal appeals court judge and University of Chicago law school professor Richard A. Posner in an interview with The New York Review of Books laments the nature of judicial hearings, especially those for Supreme Court selections, as being unhelpful, and questions Justice Antonin Scalia’s adherence to originalism, writes Christopher Shea for The Wall Street Journal.

    The entire interview with Posner is behind a pay wall, but Shea writes that Posner discusses “what he sees as inconsistencies in Justice Antonin Scalia’s application of the ‘orginalist’ judicial philosophy…”

    Shea adds that Posner (pictured) maintains that at times judges do create law because “constitutional text is sufficiently ambiguous.” He quotes Posner as saying:

    At my confirmation hearing back in 1981, when confirmations were much less controversial (and of course court of appeals nominees don’t get the same scrutiny as Supreme Court justices, though they are getting much more than they did when I was confirmed), Strom Thurmond, the chairman of the Judiciary Committee, asked me, “Do you agree that judges should just apply the law; they shouldn’t make the law?” I said that was usually the case but some cases are indeterminate and to decide them the judge may have to create some law.

    As noted here yesterday, earlier this week at the American Enterprise Institute, Scalia, as is his wont, chided judges who supposedly do not take the Constitution seriously (such judges are those who do not apply originalism in the manner Scalia asserts he does).

    “If current social values are to be the yardstick for determining the Constitution’s meaning, then it would seem natural to entrust the task of constitutional interpretation, as in England, to the legislature, and to dispense with judicial review altogether,” Scalia said.

  • September 21, 2011

    by Jeremy Leaming

    To honor Constitution Day, Supreme Court Justice Antonin Scalia took to a podium at the American Enterprise Institute to heap plaudits on the renowned political science professor Walter Berns and knock so-called “living constitutionalists,” as advancing an inconsistent and wobbly method of constitutional interpretation.

    “I can think of no more fitting way to mark this event then [with] a lecture series in honor of my good friend Walter,” Scalia said Sept. 20 at AEI’s “Walter Berns and the Constitution: A Celebration of Constitution.”

    Saying Berns is likely best known for his 1987 book, Taking the Constitution Seriously, Scalia said he would take a bit of time to “discuss a particular way of taking the Constitution seriously, mainly taking the Constitution seriously as law.”

    But before doing so, Scalia noted a period of time when a group of jurists allegedly failed to take the Constitution seriously.

    “Since about the era of the Warren Court, American jurisprudence has been dominated by a different view of the Constitution – this view treats the document not as a legal text, with a fixed meaning, ascertainable through the ordinary tools of legal interpretation, but rather as a collection of indeterminate, aspirational provisions; a living document that serves as sort of a jumping off point for the creation of rights thought to be necessary in the current day and age,” he said.  

    Scalia said a case decided during the Supreme Court’s last term, NASA v. Nelson, offered a fine example of our “legal culture” losing sight of the Constitution’s “fundamentally legal nature.” The respondents in the case, Scalia, continued argued that the federal government had violated their constitutional rights by requiring them to undergo background checks. But the respondents’ brief, according to Scalia, did not “once identify the provision of the Constitution the government was alleged to have violated.”

    In “true” living constitutionalist style, Scalia charged that the respondents must have assumed the high court would view the right to informational privacy “to be a good thing, and like so many other good things, it would be read into the Constitution, never mind the text. The majority opinion, I’m happy to say, did not accept that invitation, but I’m not happy to say, it did not close the door to such claims either. My own view, that there is simply no constitutional right to informational privacy did not carry the day.”

    Too often, Scalia continued, the Supreme Court has gone the other way by ignoring the Constitution’s text in an effort to reach desirable outcomes.

    An example he said was Lawrence v. Texas, where the Supreme Court in a majority opinion led by Justice Anthony Kennedy, overturned a Texas law criminalizing sodomy.

    “Should there be a right to consensual sodomy?” Scalia asked. “The majority of my court thought so. And so in a case called Lawrence v. Texas, such a right was read into the Fourteenth Amendment’s due process clause, which as a guarantee of procedural fairness is textually incapable of containing such a substantive right.

  • March 23, 2011
    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!