Originalism

  • June 22, 2011

    Several of the nation’s top constitutional experts engaged in a robust discussion on what the U.S. Constitution means and how to interpret it, during the opening plenary discussion at the American Constitution Society’s Tenth Anniversary National Convention.

    ACS Board Chair Geoffrey R. Stone, a law professor at the University of Chicago, kicked off the discussion by offering a new way of framing constitutional interpretation, as articulated in a recent article in Democracy: A Journal of Ideas he coauthored with University of North Carolina law professor William Marshall, entitled “The Framers’ Constitution.”

    In the article, Stone and Marshall lay out their vision for interpreting the Constitution as the Framers intended, recognizing that the Framers were “visionaries” and not “timid men” who would have viewed originalists’ vision that “any particular moment’s understanding of the meaning of the Constitution’s open-ended provisions should be locked into place” as wrongheaded.

    “As men of the Enlightenment, [the Framers] believed that just as reason, observation and experience would enable us to gain greater understanding over time into questions of biology, physics, economics and human nature, so, too, would they enable us to learn more over time about the content and meaning of the broad principles they had enshrined in our Constitution,” Stone explained in his remarks.

  • June 15, 2011

    More than at any time in recent memory a public debate on the meaning of the Constitution and how to interpret it has been engaged by many, attracting some significant attention from news media that are more readily drawn to far less weighty matters.

    Tea Party activists have played a fairly large, if not misguided, role in heightening this discussion, but progressives have heartily joined the debate with a largely unified voice. There is, however, a vigorous discussion among progressives on how best to explain their understanding of the Constitution and constitutional interpretation.

    These competing visions over messaging of progressives’ vision of the Constitution and constitutional interpretation can be found in Democracy: A Journal of Ideas. The Democracy editors describe the parameters of the discussion here.

    Distinguished law school professors Geoffrey Stone, chair of the ACS Board, and William Marshall, a former ACS Board member, write in their article “The Framers’ Constitution,” that it is a time for an era of “principled constitutionalism,” in which constitutional interpretation is not seen as a “mechanical enterprise,” instead calling for judges to “exercise judgment.” To enter this era, the professors note that the right-wing method of interpreting the constitution, known as “originalism,” must be exposed as a flawed method, one that advances right-wing political concerns and has effectively convinced lots of people that interpreting the Constitution is as simple as staring for long periods of time at the text of the document.

    Doug Kendall, of the Constitutional Accountability Center, and University of Virginia law professor Jim Ryan, offer “new textualism,” as the progressives’ answer.   

    Stone (pictured), a law professor at the University of Chicago, and Marshall, a law professor at the University of North Carolina, write that the Framers of the Constitution created a founding charter “to endure,” by establishing “foundational principles that would sustain and guide the new nation into an uncertain future.”

    Stone and Marshall write:

    The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: “freedom of speech,” “due process of law,” “free exercise” of religion, “equal protection of the laws,” “cruel and unusual punishment.” The Constitution sets forth governmental powers in similarly general terms: Congress may regulate “commerce…among the several states,” the president will “take care that the laws be faithfully executed,” the courts are authorized to decide “cases” and “controversies.”

    Stone and Marshall continue that the 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.”

    The professors then elaborate on how a right-wing legal movement has tirelessly worked to  undermine the Framers’ vision of enduring foundational values by successfully pushing the theory of “originalism,” which “presumes that courts should exercise judicial restraint unless the ‘original meaning’ of the text clearly mandates a more activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African Americans the right to serve on juries, but not to invalidate laws that deny women the same right, because that not he ‘original meaning’ of the clause.”

    And Stone and Marshall detail how originalism is “fundamentally flawed.”   

    Kendall and Ryan argue in their article, “The Case for New Textualism,” that a theory akin to originalism should be promoted as the progressives’ answer. They also assert that right-wing activists have dominated the discourse on the Constitution and constitutional interpretation for far too long, causing progressives to run from the Constitution.

    But Stone and Marshall say it is not a matter of being pinned in, maneuvered or chased away from the debate over the Constitution.

    Instead, they say, progressives must bring reason to the debate, including providing a sharp rebuke of the right wing’s flawed understandings of the Constitution and how its foundational values should be applied. Interpreting the Constitution and applying its enduring values in today’s society is not as mechanical as the Right has declared. Judging, the professors write, is in no way similar to the work of baseball umpires.

    Stone and Marshall in this response write, “Kendall and Ryan argue that the best way for liberals to win the public debate about the judiciary is to claim that liberals adhere to a ‘textualist’ understanding of constitutional interpretation that is akin to the conservatives’ ‘originalist’ theory. Such an approach, they suggest, will appeal to the public because of its seeming clarity and neutrality. They add that the ‘new textualism,’ properly applied, will lead to liberal results.”

    They conclude that “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.”

  • June 6, 2011

    The notion that conservative jurists, such as Supreme Court Justice Antonin Scalia, have the market cornered on constitutional interpretation is ludicrous, because their preferred method of interpreting the nation’s founding document is “fundamentally flawed,” writes Geoffrey R. Stone for The Huffington Post.

    In “The Demise of ‘Originalism,” Stone, a distinguished law professor at the University of Chicago Law School and chair of the ACS Board, says the “Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time.”

    There are several reasons why so-called originalism is flawed, Stone writes. For starters, “it is exceedingly difficult to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences.”

    Stone continues:

    The result is unprincipled and often patently disingenuous jurisprudence. There is no evidence for the claims advanced by originalists, for example, that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment included the notion that corporations had a constitutional right to spend unlimited capital to influence political elections. Both of these claims, however, are central to today’s conservative legal agenda.

    Stone says there is an even “more troubling phase of conservative constitutional jurisprudence,” one he dubs “conservative activism.” This type of activism readily dismisses “constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively” invalidates regulations on corporations or gun control laws.

    Later today at the National Constitution Center in Philadelphia, Stone will participate in an event called “Judicial Activism Reconsidered.” For more information about the 6:30 p.m. event, including availability of tickets, visit the Constitution Center’s website

  • May 20, 2011

    Originalism, a wobbly method of constitutional interpretation promoted by jurists, such as Justice Antonin Scalia, has gained a stronger foothold among conservatives, especially in academia, but continues to be derided by historians, writes Saul Cornell in a piece for Dissent Magazine.

    “When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda – what historians derisively call ‘law office history,’” Cornell writes.

    Cornell, history professor at Fordham University and a senior research scholar at Yale Law School, details a rocky path for originalism, from its development during the Reagan years as a tool to reign in so-called activists judges to today’s “new originalists,” who have prospered thanks to “right-wing scholars, judges, and generous support from the Federalist Society, the wealthy conservative legal group that has become a farm team for conservative judges and academics.”

    The “goal of new originalism is not to constrain judges, but to empower them to further the agenda of conservatives,” Cornell continues.

    But despite their claim to be devoted to understanding the original meaning of the Constitution’s framers, the new originalists are actually either ignorant or dismissive of history. As Cornell points out, the framers were not monolithic in their views about the Constitution or constitutional interpretation.

    Cornell writes:

    John Yoo, a prominent new originalist legal scholar who helped to frame the Bush administration’s novel views on torture, goes even further in circumventing historical understandings of the Constitution. (The Founders, it is worth recalling, were strong supporters of the principle of international law and took a dim view of torture.) For Yoo, the actual history of the Founding era poses few constraints on the modern lawyer or judge. Yoo accomplishes this sleight of hand by ignoring the conflicts and disagreements among the Founders. If one ignores those conflicts, one can cherry-pick evidence to construct whatever theory one likes. Most historians would point out that the Founding era was not only characterized by conflicts within the elite, such as the argument between Jefferson and Hamilton, but also an even more basic conflict between elites and ordinary Americans. Yoo and other new originalists not only ignore the tensions within the elite, they assume that common people in the Founding era lacked the knowledge necessary to understand the Constitution and played no role in the constitutional history of the period. (Yoo clearly did not bother to look at the Pennsylvania Constitution, newspapers from the period, or any text written by ordinary Americans.)

    For more on constitutional interpretation see Keeping Faith With the Constitution, by Pamela S. Karlan, Goodwin Liu and Christopher H. Schroeder.

  • May 12, 2011

    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.”