Originalism

  • 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.”

  • May 11, 2011
    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.

  • May 2, 2011
    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.