Originalism

  • 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.

  • June 23, 2011

    Despite claims about unprecedented intrusion on liberty, the litigation over the landmark health care reform law is really an “effort to change existing doctrine to have courts create and impose a new limitation on Congress’s ability to deal with major national economic problems,” said Indiana University law professor Dawn Johnsen during a plenary panel discussion at the ACS 10th Anniversary National Convention. She added that ultimately this effort to fundamentally change law surrounding commerce clause authority should remind us of the importance of judicial nominations.

    Since 1937, Johnsen, a member of the ACS Board, noted that the Supreme Court has almost always upheld Congress’s authority to enact laws regulating economic concerns. There have been only a few cases in recent time where the high court has invalidated laws as falling beyond Congress’s power to regulate commerce, she said. But the narrow majority in those cases expressed concern that the acts in question were too far afield from regulation of economic concerns. The Affordable Care Act (ACA), however, certainly deals with regulation of a major part of our economy, Johnsen concluded.  

    Randy E. Barnett, professor of law at Georgetown University Law Center, and a critic of the minimum coverage provision, told the audience, to laughter and applause, that the bill it got was one it really didn’t want and was actually a payoff to the insurance companies so they would not oppose the bill. Under current court doctrine, Barnett said, extending Medicare to everyone or having a single-payer plan would be constitutional.

    Walther E. Dellinger III, partner at O’Melveny & Myers, and a former Acting U.S. Solicitor General, said without the minimum coverage provision, the ACA could not guarantee that health insurance coverage would be available to those with pre-existing conditions. He maintained that even if the minimum coverage provision were not supported by Congress’s powers to regulate commerce or to tax and spend, it is within Congress’s authority to create laws necessary and proper in carrying out its constitutional powers.

    Dellinger also took on the Right’s frequent argument that the ACA represents an unprecedented government intrusion into health care.

    “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty,” he said. “And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods [for abortions], government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

    Video of the full panel discussion is available here or by clicking on image below.

  • 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