orginalism

  • September 20, 2013

    by Lara Schwartz

    Every high school history student learns that since Marbury v. Madison, the courts “say what the law is.”  However, when we vote we choose those who choose our judges, which means We the People play a role in saying what the law is. Americans recognize that judges and justices approach the law from different perspectives and that their approaches affect the outcomes of cases we care about. Presidential candidates make promises about what kinds of judges they will appoint for a reason: because it matters. But what do the American people expect from our judiciary?

    We’re often told Americans want a “conservative” Court and that they are sympathetic to originalism. A poll taken after Justice Stevens announced his retirement indicated that more Americans (42 percent) wanted a new justice who would make the Court more conservative than those who wanted to see the Court become more liberal (27 percent). Some surveys hint that Americans’ views on constitutional interpretation are sharply divided: a Pew Survey found that half of Americans (50 percent) say the Court’s rulings should be based on its understanding of what the U.S. Constitution means in current times, while about as many (45 percent) say rulings should be based on its understanding of what the Constitution meant as originally written. Yet although voters might find the term “conservative” and the idea of “as originally written” appealing in principle, they don’t agree with what the conservative justices do in practice.

    Americans overwhelmingly support upholding Roe v. Wade, which has become conservative shorthand for a liberal, activist Court.  Even Roe’s supporters don’t tend to call it conservative or claim it exemplifies originalist constitutional interpretation, yet only 29 percent of Americans believe that Roe should be overturned, which is fewer than the 43 percent who believe abortion is “morally wrong.”    

    Most Americans also agree with the Court’s ruling in U.S. v. Windsor, which struck down the section of the so-called Defense of Marriage Act that denied same-sex couples federal benefits. This places them at odds with the Court’s conservative bloc. By contrast, 33 percent approve of the Court’s decision in Shelby County v. Holder, which struck down part of the Voting Rights Act, compared with 51 percent who disapprove. 

  • September 17, 2013
    Guest Post

    by William P. Marshall. Marshall is the William Rand Kenan, Jr. Distinguished Professor of Law at UNC School of Law. Marshall is also an ACS Board member. This post is part of our 2013 Constitution Day symposium.

    For years, conservative thought has consistently claimed that its approach to constitutional interpretation meant following the Law, whatever the result. Conservatives, according to this mantra, were well, conservative, in the non-political sense of the term. Liberal constitutionalism, in contrast, was nothing more than “activist” decision making in which liberal judges simply “legislated from the bench” in order to reach favorable results. 

    Conservative thought in this respect was something of a moving target in that its description of improper judicial activism kept changing. At first, the term meant judicially overturning the actions of elected officials. Later, however, when that account of activism proved inconsistent with the conservative political agenda (think affirmative action or limits on the commerce power), the definition changed. Now, of course, after a brief but unsuccessful foray into attempting to define activism as decision making that veers from the Framers’ “original intent,” conservative thought asserts that activism means deviating from the Constitution’s “original understanding.”  As before, conservatives assert that they do not deviate from their principles no matter what results may follow. As before, conservatives consistently follow their principles, results notwithstanding -- except, or of course, when they don’t.  See e.g. Shelby County v. Holder; Citizens United v. FEC; Bush v. Gore; Adarand Construction Inc. v. Pena.

    Remarkably, however, despite both its erraticism and its disingenuousness, the conservative myth persists. In fact the notions that modern constitutionalism has taken us away from the true meaning of the Constitution and that the country requires a return to originalist principles has provided the narrative for not just legal thought but also for a major political movement – the tea party. And even though it can be readily shown that the method of constitutional interpretation that the tea party decries dates back to Chief Justice John Marshall and the early years of the Republic, their answer, apparently is that John Marshall is simply a part of the problem.

  • January 4, 2011
    Justice Antonin Scalia's claim that the U.S. Constitution does not protect women from discrimination has riled "women's rights activists," reports The Washington Post, and stirred some critical examination of the justice's much-touted method of constitutional interpretation.

    Last fall in an interview, recently published by the California Lawyer, Scalia said, "Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society."

    Yale Law School professor Jack Balkin, in a Balkinization post, notes that Scalia's comments should not be news - he's provided similar commentary before. But Balkin writes that he does "have a few bones to pick with him about his originalist claims."

    Balkin writes:

    First, the central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

    Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That's not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination-- discrimination in basic civil rights against single women.

    ...

    Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution's framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964's ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia's arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today's world. That is to say, he doesn't really believe in originalism either when it comes to a very wide array of cases concerning federal governmental power.