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Originalism in Crisis:

Randy's post reminded me that I've been wanting to note that conservative judicial originalism is currently in a state of crisis, precisely because of Justice Scalia's "fainthearted" originalism. If Justice Scalia, originalism's supposed great champion, is unwilling to overturn or even go out of his way to distinguish as anti-originalist opinion as Wickard v. Filburn (holding that growing grain on one's own land for consumption on one's own farm can be regulated under Congress' power to regulate "interstate commerce"), then what is left of originalism?

One could say that it's simply "too late" to reconsider sixty-two year old precedents like Wickard. But why sixty-two year-old precedents, and not thirty-two year old precedents (i.e., Roe v. Wade)? Scalia's fainthearted originalism begins to look a lot like, "I got into this business to overturn Warren Court decisions, and I'll use originalism as tool to that end, but I'm not especially interested in reconsidering New Deal precedents."

It especially looks like political preference because judicial deference to government exercise of arbitrary power was traditionally a "Progressive", not [conservative idea. Conservatives adopted "judicial restraint" as a mantra to attack the Warren Court, not because it's either a conservative or an originalist idea.

I expect that Scalia's problem is that to be a true originalist, many New Deal precedents would have to go out the window, and this is neither politically, nor, in many instances, practically feasible (In Raich, Randy certainly provided Scalia with some easy ways to distinguish Wickard, but I suspect Scalia felt that Wickard should either be interpreted rather broadly, or overturned entirely, and he opted for the former). But to be a sincere originalist, one has to grapple with how to resolve this quandry, not simply refuse to apply originalist reasoning out of "faintheartedness."

Thus, the task for the emerging conservative majority on the Supreme Court is to figure out how to be as true as possible to the original meaning of the Constitution, given that the Court has strayed so far from it for so long. Michael Greve of AEI, who really needs to write a book on the subject, has some intriguing ideas. But simply pulling a Scalia, and begging off from the tough issues as distractions from what I beleive he sees as the real task of preventing the liberal elite from enacting its agenda through the judiciary just won't do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism, and Scalia's failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist.

I once had a talk with Justice Thomas (when he was still Judge Thomas) where he expressed concern that some of his older conservative allies believed in the principle of "judicial restraint" for the sake of judicial restraint. I suggested to him that older conservatives are less concerned with adopting a principled view of the constitution, and more concerned with preventing liberals from doing harm. Thomas responded, "Yeah, but we're in charge now" (which I took to mean, "and therefore we need a governing ideology, not simply a reactive one"). Not surprisingly, it's Justice Thomas who has expressed the most willingness to try to figure out how to reconcile originalism with the facts created by stare decisis. Let's hope that he succeeds Scalia as the intellectual leader of the conservative majority. I hope that Alito and Roberts, as members of Thomas's generation and not Scalia's and Bork's, will not prove to be "fainthearted."

UPDATE: This should go without saying, but I don't mean to endorse every vote Justice Thomas has ever cast, as opposed to his non-"fainthearted" approach to originalism.

FURTHER UPDATE: Liberal critics of Scalia have also (correctly) noted that he is strangely silent in affirmative action cases with regard to the original understanding of the Fourteenth Amendment, which arguably would allow racial preferences, at least for African Americans. Thomas receives the same criticism, but I tend to agree with Scott Gerber that in race cases, Thomas's originalism manifests itself in resolving the ambiguous meaning of the equal protection clause by reference to (what he sees as) the founding and enduring principles of the American experience. Whether this is a sincere alternative "natural rights" form of originalism, or "too convenient," I'll leave for another time, but it's at least an attempt at originalism.

Related Posts (on one page):

  1. Balkin on Originalism:
  2. Originalism in Crisis:
Larry (mail):
Did Justice Thomas really say that he was: 1) a conservative; and 2) in charge ? I guess this explains his embarrassing dissent in Hamdi. Anyway, I like bragging about hanging out with judges, too.
11.2.2005 4:39pm
MCO:
Maybe I'm just dense, but I have never had much of a problem with Wickard. The point is that Congress is regulating something that has a close relationship with interstate commerce, i.e. the trade in grain. Of course, there is always intrastate trade in grain as well, but it is part and paceel of the national and international trade.

If we were to take the position that the commerce clause admits of only a very narrow understanding of "interstate commerce" it proves far too much.

For example, if Raich had been decided the other way, essentially all Federal criminal drug laws (leaving aside importat restrictions) would be invalidated. Moreover, even assuming that you could redraft them with an additional element that the prosecution show that the drugs moved in interstate commerce, that would seem essentially impossible to prove in the real world. I believe our drug laws are a valid (if at times misguided) exercise of commerce clause authority, because the trade in drugs is indeed closely and substantially related to interstate commerce.

On the other hand, there are examples. like Lopez, where the conduct at issue has only the most tangential effect on interstate commerce, and I think the Court is right to strike those laws down. One that I would like to see tested is the Endangered Species Act -- I cannot for the life of me see what that has to do with interstate commerce, aside from making it more difficult :).
11.2.2005 4:50pm
Unnamed Co-Conspirator:
Wow. Maybe it's time to start thinking about judicial conservatism, rather than just originalism. There's something to be said for covering the brake and proceeding cautiously when the consequences of doing otherwise are more unknown than known. Chief Justice Roberts appears to be such a judicial conservative. Perhaps Scalia is also. It doesn't mean that a judicial conservative will abandon originalism as a philosophy for interpreting the constitution, still less that he will endorse the fabricationism of previous Courts, but it does mean that a conservative judge will consider the possibility that he is not infallible, and perhaps, being a mere mortal, he might not be able to reassemble Humpty Dumpty in a way marvelous enough to justify the yolk spillage and general carnage that may result from an incautious if well meaning misstep. Isn't lack of judicial modesty a major complaint about the fabricationists? Well, now we know -- originalism is not without its limitations. BFD.
11.2.2005 4:52pm
Greedy Clerk (mail):
I once had a talk with Justice Thomas (when he was still Judge Thomas) where he expressed concern that some of his older conservative allies believed in the principle of "judicial restraint" for the sake of judicial restraint. I suggested to him that older conservatives are less concerned with adopting a principled view of the constitution, and more concerned with preventing liberals from doing harm.

Yes, Chairman Mao, the old guard are simply "rightists" disguised as true believers, we must cleanse our movement of this corrupted old guard. Ahh, the irony of the little "Cultural Revolution" going on with super-right-cons like Bernstein.

Also of note is the difference between Randy's above post re Wickard (ie that it was not inconsistent with the dissent's view in Raich) and Bernstein's post assuming without argument or reason that Wickard was wrongly decided. (P.S. I am sure that we will hear DB tell us more about his oppression for arguing against Walker v. Whatever Furniture Co. in due course.)

11.2.2005 5:01pm
Greedy Clerk (mail):
Let's hope that [Thomas] succeeds Scalia as the intellectual leader of the conservative majority.

As a Jew, I find this statement of DB's particularly troubling by the way. Compare the vastly different, i.e. diametrically opposed, views of executive power expressed by Scalia and Thomas in the Hamdi case. Those like DB, who hope that Thomas's view of executive power "succeeds" unwittingly support those last invoked by the Nazis, i.e. unchecked executive discretion to detain persons without any process at all "in time of war" --- sorry for the Nazi-comparison, but it is true. Moreover, how that view, expressed by Thomas in Hamdi, had ANY support in "originalism" is beyond me. Maybe DB can explain. But probably not.

11.2.2005 5:05pm
Cornellian (mail):
But simply pulling a Scalia, and begging off from the tough issues as distractions from what I beleive he sees as the real task of preventing the liberal elite from enacting its agenda through the judiciary just won't do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism, and Scalia's failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist.

Thank you, thank you, thank you from saying what I've been saying for years, namely Scalia is an originalist only for culture war issues, then tosses originalism out the window for other constitutional issues, like separation of powers, 5th amendment takings and the commerce clause. That's why it grates on my nerves every time he writes one of those dissents berating his colleagues for ignoring original understanding - it's completely hypocritical. Thomas is the only principled originalist on the Court. I'm not an originalist fanatic, and actually liked Rehnquist as a judge more than Thomas, but we could all do with a bit less hypocrisy from Scalia.
11.2.2005 5:10pm
Nunzio (mail):
I agree that Scalia should be taken down a few notches for his results-oriented originalism. But I'm surprised it took the Raich concurrence to do this for some. This was only his latest foray into non-originalism.

I also agree with the first comment that Thomas' Hamdi dissent is inexplicable. Apparently it's okay to abandon originalism on the say-so of W. but not for any other reason.
11.2.2005 5:10pm
Justin (mail):
You apply origianlism...faithfully....then the American people will decide to scrap the Constitution and rewrite. If you tell us all that the Constitution means exactly what it says....throwing out everything from social security to the DOE to the war on Iraq, overturn the APA, destroy the EPA, etc etc, the American people will simply reject the Constitution and craft a new one that greatly expands federal power. This wouldn't bother me all that much, outside of the risk.

My problem is that "fainthearted" originalism becomes a political game of throwing out or limiting laws you don't like, but since you need to have other rules of legal construction (to avoid decisions that would end the Court's legitimacy), using them at will to uphold laws you do like, inconsistently. Thus, you end up with weakened 5th amendments but strong 11th amendments, and liberals find accusations from their supporters that they're making it up as they go along absurd.
11.2.2005 5:11pm
Justin (mail):
PS does anyone else here find it absurd that a Supreme Court Justice openly admits that his jurisprudence changes based on the political party in power? If Kennedy's life is on the line, shouldn't Thomas at least be impeached? :)
11.2.2005 5:14pm
guest (mail):
Suppose we scrapped the Constitution and drafted a new one with vastly expanded powers. Could a constitution that by its own terms allowed infringement of personal liberty to an extent greater than that allowed in THE Constitution be legitimate? What's the source of that legitimacy? And if it's just "popular ratification", how is that any different from the "might makes right" of every other tyranny (even if it's a relatively benevolent tyranny).

If we draft a new constitution with powers like that, we need to make sure we strike "and secure the blessings of liberty" from the preamble. It won't have any place there.
11.2.2005 5:23pm
Steve:
The originalists can and should be faint-hearted.

From my point of view, the New Deal and its accompanying judicial decisions were a de facto amendment of the Constitution, viewed from a historical standpoint. FDR had a George Washington-level mandate. People wanted broad, national solutions to the problems posed by the Depression and they got them. As a technical matter, sure, you could make the case that they should have passed a constitutional amendment expanding the Commerce Clause; but regardless, there certainly was a supermajority in favor of a new version of federalism that would permit the New Deal.

None of that is to say that a de facto amendment cannot be de facto rolled back. But it should be done cautiously, and indeed, the Rehnquist Court did take some halting baby steps towards limiting the scope of federal authority. It's important to keep the pace slow and measured, rather than rewriting settled expectations overnight, in order to gauge whether the public is really on board with this, the way they were on board with the New Deal.

Again, this would perhaps be a neater and cleaner process if it were all done pursuant to written Amendments; but the evolution of political systems is rarely that neat and clean.
11.2.2005 5:28pm
guest (mail):
The fact that there wasn't an actual amendment is a "technicality"?
11.2.2005 5:32pm
Goober (mail):
One could say that it's simply "too late" to reconsider sixty-two year old precedents like Wickard. But why sixty-two year-old precedents, and not thirty-two year old precedents ...?

And yet, there's no such thing as the "constitution in exile" movement.

Sigh.
11.2.2005 5:36pm
Challenge:
The Court can only push so far, or it will be rebuked. That's what happened with FDR and his appointments. The Court is only "first among equals" if it plays nice. Even Bork called the commerce clause revisionism "irreversible."
11.2.2005 5:39pm
frankcross (mail):
"Yeah, but we're in charge now"

I believe the only comment required here is, 'nuff said.
11.2.2005 5:47pm
guest (mail):
If only the Founders had been about to foresee FDR's court-packing plan. They might have constitutionally fixed the Court at 9 members.
11.2.2005 5:48pm
magoo (mail):
You do originalism a disservice when you (and Randy) suggest that any effort to balance originalism and precedent renders one impure.
11.2.2005 6:06pm
Gordon (mail):
The 1938 Erie v. Tompkins decision overturned a 96-year precedent.

So it's never too late.
11.2.2005 6:11pm
Michael B (mail):
While I can only barely understand Scalia in Raich, as one example only, originalism will always be in crisis, how can it not be? It's a conceptual approach (which is not to say an overly broad or undefined approach), not a dogma or absolutist set of dicta.
11.2.2005 6:13pm
Crime & Federalism (mail) (www):
There is only one originalist Justice on the Supreme Court. Unless Stevens retires, Bush won't have the opportunity to appoint a new Justice. Hell, he had two cracks, and he didn't nominate even one originalist. Indeed, in not nominating Janice Rogers Brown, he showed us he had no intent on nominating an originalist. And for good reason. The Republicans want big government, and as evidenced by Raich and Gonzales v. Oregon, they don't want federalism. An originalist Justice might well get in the way of big-government Republicans.

Our next President will almost certainly be either McCain or Clinton. Neither of them will appoint an originalist Justice.

Originalism isn't in crisis: it's dead.
11.2.2005 6:16pm
nobody (mail):
Any justice who claims to be an originalist and does not seek to overturn Brown v. Board of Education is a liar or a scoundrel.
11.2.2005 6:24pm
Cornellian (mail):
A hypothetical: The President of the day decides it would be a great thing if 25 year old people could run for President, despite what the Constitution says. He is determined to appoint judges who, whatever their other views might be, all subscribe to an obscure theory that 25 year olds can run for President, despite the apparent plain meaning of the Constitution saying they can't. This position is very popular politically, and over 2/3 of the Senate thinks it's a good idea and is willing to confirm such judges. The public likes it too, and this position is considered a vote winner, such that senators explictly run on a "run at 25 platform" so the public knows their position on the issue when electing them. The President happens to come at a time in history when the SCOTUS is rapidly being vacated by retirements. He nominates 6 judges who share this view, albeit supported by a paper thin legal theory. The Senate confirms them all. The position is clearly contrary to both original understanding, original intent, plain language and pretty much any other credible theory of constitutional interpretation. SCOTUS then rules 25 year olds can run for President. No Senator supporting that position is defeated for re-election.

What is the significance of this ruling? Is this a de facto amendment? Although it's a clearly wrong result legally, I'm not sure there's a legal answer to it. It's hard to see how the judicial branch could ever sustain the legally correct position against a Presidency and Senate determined to appoint judges who will take the legally incorrect decision where that position is sustainable with the electorate for a period longer than the terms of a majority of the justices on SCOTUS. What can the judicial branch do? What should it do?



The Court can only push so far, or it will be rebuked. That's what happened with FDR and his appointments. The Court is only "first among equals" if it plays nice. Even Bork called the commerce clause revisionism "irreversible."
11.2.2005 6:26pm
Cornellian (mail):
The Republicans want big government, and as evidenced by Raich and Gonzales v. Oregon, they don't want federalism. An originalist Justice might well get in the way of big-government Republicans.

Don't forget Terry Schiavo. Pass a federal law trying to fix the result of a single state course case in mid-litigation? No problem for the current crowd of Republicans in Washington who still manage to call themselves "conservative" with a straight face.
11.2.2005 6:32pm
SimonD (www):
Originalism is a philosophy that, in practise, restricts the power of the national government. For this reason, no party which attains power in the Federal government, and believes itself to be in the ascendency, will pay it any more than lip service, just as no majority will ever implement term limits unless it believes that it will be in the minority next term.

I tend to agree that Justice Thomas is a "better" originalist than Justice Scalia, bhut I am not willing to write Nino off. I think you've got to give the man some credit; to evaluate his occaisional lapses in the context of his role in effectively dynamiting the courtroom doors and leading the charge against a liberal court from the front. It's impossible to overstate Scalia's role in moving the court and the legal culture forwards, and it bothers me that some people are ready to declare him persona non grata just because he ruled against them in a given case. My, what are all these toys doing lying around the cradle? Is Raich wrongly decided? I think so. Scalia offered a reasonable (albeit unpusuasive) argument for it, and I can live with disagreeing with Scalia on one case just as easily as I can live with disagreeing with him over broad doctrinal questions like the dormant commerce clause or state sovereign immunity. He was, and remains, Our Hero, and the occaisional deviation from The Faith won't change that.

I also think Magoo has a very important point about the need for originalism to reconcile itself against stare decisis. The Originalist must either declare that stare decisis is irrelevant, and rule accordingly, or one must seek to reconcile the two. I don't believe that stare decisis is irrelevant; as I explained here, I believe that "precedent must always be examined, and provided that past precent is reasonable and consistent with the plain [original] meaning of the text, that line of precedent should control, even if it demands an interpretation that I would not reach as an original matter." The good Originalist, in my view, should structure an opinion on a constitutional case thusly: an identification of those provisions implicated, a discussion of the original meaning of those provisions, a discussion of all relevant precedent, a dismissal of those precedents which cannot be reconciled against the original meaning, and finally, a conclusion demanded by the text itself and the precedents determined to still be valid.
11.2.2005 7:17pm
Cornellian (mail):
Is Raich wrongly decided? I think so. Scalia offered a reasonable (albeit unpusuasive) argument for it, and I can live with disagreeing with Scalia on one case just as easily as I can live with disagreeing with him over broad doctrinal questions like the dormant commerce clause or state sovereign immunity.

It's not as if Scalia took an originalist approach in Raich but reached a wrong conclusion through some faulty application or ambiguous evidence of original understanding. It's that he's explicitly originalist for culture war issues, then writes opinions like he did in Raich where he doesn't even bother to mention original understanding. When he doesn't like that outcome that will result from an originalist approach, he doesn't just misapply original understanding, he doesn't bother to apply it all. And then he lambastes the court for ignoring original understanding the next time a culture war case comes up. And Raich certainly isn't the first time he's done this and it won't be the last.
11.2.2005 7:28pm
SimonD (www):
Nobody-
Any justice who claims to be an originalist and does not seek to overturn Brown v. Board of Education is a liar or a scoundrel.
Ah yes, the old familiar canard. Age shall not weaken thee! Inaccuracy shall not thee wither!

The problems with saying that an Originalist must overturn Brown are as follows: a) it assumes that an Originalist must believe that Brown was wrongly decided as an original matter (they probably don't), b) it assumes that there is no Originalist rationale that would support Brown (there is), and c) it asumes that originalists must give stare decisis no effect.

The reality, it seems to me, is that Brown was correctly decided, but not for the right reasons, as both Bork (in The Tempting of America) and Scalia (dissenting in Rutan v. Republican Party of Illinois) have been at pains to point out. The rule of thumb, it seems to me, is that an originalist will almost always vote to reaffirm a case in which they would have written a concurrence or joined the majority.

Perhaps you are having the customary aphasia that leads people to conflate originalism, broadly, with origignal intent - a fallacy that afflicts people whose understanding of originalism is garnered from articles, books and - cough! Balkin! Cough! Tribe! Cough! Deshowitz - Law professors whose goal is to discredit originalism at all costs. The standard ConLaw text at IU Law is Understanding Constitutional Law (3d ed.) by Redlich, Attanasio and Goldstein; Goldstein manages to thoroughly misunderstand or misrepresent Originalism within the book's first thirteen pages. (Id. at 11-13).

To be brief: Originalism is not the theory that the framer's original intent governs. Originalism is a family of views which hold that the meaning of the Constitution is fixed at the point the provisions were ratified, and that anything else renders a constitution (and its democratic ratification and amendment) worthless. There are different theories as to what is authoritative though - the framers' intent? The framers understanding? The ratifiers' understanding? The original plain meaning of the text? I say the latter. Original intent is bunk. I mean, original intent cannot square against textualism, and I'm not aware of anyone who seriously advocates it. So while it may be true that someone who believes in original intent would have to overrule Brown, there are so few people that actually believe in original intent as to render the argument a straw man.
11.2.2005 7:39pm
SimonD (www):
I meant to conclude the penultimate paragraph of my last post by saying that, if this is the gruel with which law students are being spoon fed with, no wonder Originalists have a hard time explaining that, no, we don't eat babies, and have no particular inclination to put blacks back into cotton fields and women back into the roles so graphically described by Jerry Hall. Of course, it's much easier to just smear a theory by making up a parade of horrible results and claiming - baselessly - that originalism would usher them in than actually defending other theories.
11.2.2005 7:43pm
Harvey:
So basically, Scalia is a fraud, a shyster, a charlatan, a flimflam, a phony, whatever you want to call him.
11.2.2005 7:50pm
M. Simon (mail) (www):
Ah, yes. The great Bork. Who calls the IXth Amendment an ink blot. From which citizens get rights which are unenforceable.

Bork doesn't just legislate from the bench. He is a one man Constitutional Convention.
11.2.2005 7:58pm
M. Simon (mail) (www):
MCO,

It was at one time thought that Congress did not have the power to regulate alcohol. An amendment was passed.

What has happened to change that situation in the intervening years that allows drug prohibitiion?

Remember the Leary case which got the drug laws thrown out?

So Congress comes up with a new scheme. Changing the drug laws from a taxation measure to health and safety. Of course "one of the safest therapeutically active substances know to man" accoring to DEA Judge Young is illegal.
11.2.2005 8:07pm
SimonD (www):
M Simon -
I don't agree with Bork about the ninth amendment, any more than I agree with liberals - or Randy Barnett, for that matter. See generally comments here.

If it's not mandatory to agree with everything Bork says, surely it's not mandatory for liberals to automatically assume that Bork is an brooding evil overlord and should thus be discounted at every turn? C'mon - it isn't even unheard of for Scalia to be joined by Souter and Ginsburg, his polar opposites.
As Jayne would put it: "there is something about that that's downright unsettling." True, none-the-less.
11.2.2005 8:26pm
Unnamed Co-Conspirator:
SimonD, good to see you here again.

One question that some of us (David!) might consider more fully is whether originalism has become the new judicial arrogance? I have always thought the most compelling argument for originalism was judicial modesty, not purism -- the idea that no judge should deem his own opinion above the law itself. Of course there are some judicial acts that more plainly than others vulnerable to the charge of judicial arrogance, but when one judge or several determine to reverse long standing rulings, even those in apparent contradiction with the constitution, I would prefer it if they do it with some appreciation of the consequences, good and bad, rather than on autopilot. That doesn't mean adopting fabricationism as a philosophy, it only means tempering originalism with prudence. That goes for Roe v. Wade as well as Wickard (only the bad effects of Roe pretty clearly outweigh the good, with popular support for moderation in the area of abortion rights and therefore the likelihood of legislative resolution of issues being evident, as opposed to the present toxicity it provides to political discourse). If that means I'm not a purist, then so be it. If want purism, we can dispense with this whole nomination and confirmation silliness and just write a computer program to do the job. Since when is a judge, or any of us for that matter, obligated to allow the perfect to become the enemy of the good?
11.2.2005 8:37pm
DavidBernstein (mail):
People, please read the post at least a bit carefully before commenting. Some of the comments seem to suggest that I advocate overturning all bad New Deal precedents when in fact I wrote that "this is neither politically, nor, in many instances, practically feasible." It's fine to temper originalism with judicial "conservatism", but doing so haphazardly and inconsistently without a coherent, or even, stated, theory as to why leaves one justifiably vulnerable to the charge that one is not a "fainthearted" originalist with a large respect for stare decisis, but an "originalist when it suits my political agenda."
11.2.2005 9:16pm
Anon7 (mail):
Strict texualism is an intellectual dead end, and socially destructive to boot. If text is frozen in time in meaning when it is put into place, let's see what that would mean in terms of "searches and seizures." At the time of the Bill of Rights a search meant a physical inspection of a home or person.

So according to a 2005 textualist, anything other than a physical search (electronic surveillance, wire taps, data monitoring, directional microphones, infrared imaging, etc.) is not a search and therefore police don't need a warrant to do any of these things...
11.2.2005 9:17pm
Greedy Clerk (mail):
Originalism is a family of views which hold that the meaning of the Constitution is fixed at the point the provisions were ratified, and that anything else renders a constitution (and its democratic ratification and amendment) worthless.

Then "Originalism" is founded on idiotic hyperbole. We all agree that there has been no "originalist" Supreme Court majority for, what, at least a hundred years; correct? Yet in the last hundred years, the constitution has hardly bee "worthless."

Moreover, for everyone claiming as a given that Thomas is a "better conservative" including DB, explain Hamdi. . . . . That's what I thought, it's inexplicable, and inconsistent with any reasonable interpretation of the constitution and its common law history. . . . . But enjoy fantasy-land fellows.

11.2.2005 9:57pm
M. Simon (mail) (www):
SimonD,

Nice name BTW!

I find Bork's dismissal of the IXth unsettling. Once you have thrown out one amendment what is to prevent you from throwing out the rest?

I think Scalia sides with Bork (mostly) on the IXth.

The loudest voices for not legislating from the bench think that one of the most (in my opinion) important amendments is of no practical import.

I think one must look at why we had a commerce clause in the Constitution. The purpose was to insure the free flow of goods between the states.

BTW Wickard is a price fixing scheme. A tax without a tax bill. Drug prohibition works that way too.

A number of posters make the point that wrenching changes are not good. Whittling away at the usurpers would be fine with me. Let Raich have her pot and take a small snip. Only take cases that nibble, not those that overthrow. Let the appeals courts diverge for a while.

The really good thing is that we have a new generatioin coming up that is more libertarian oriented than the generation that is leaving us (WW2). Even if originalism (limited government) interpretations are currently losing ground I think the futuure is so bright I need shades.

I remember when Barry Goldwater was the death of the Republican party. As a Democrat back then I thought he was a crazy man. Now, there is hardly a word he spoke that I disagree with. Then there is Hillary, who went in te opposite direction. Life is strange.
11.2.2005 10:28pm
Jon Rowe (mail) (www):

Liberal critics of Scalia have also (correctly) noted that he is strangely silent in affirmative action cases with regard to the original understanding of the Fourteenth Amendment, which arguably would allow racial preferences, at least for African Americans.


Well, I think affirmative action -- explicit racial preferences which have the effect of discriminating against non-preferred groups -- would be allowed under original understanding because the framers of the 14th Amendment didn't understand it to forbid government racial discrimination generally.

In other words, under the original understanding of the 14th, government could discriminate in favor of blacks and against whites, because it could also discriminate against blacks and in favor of whites as well. It just couldn't deny to blacks or any group the equal protection of whatever general laws happened to be on the books -- murder, assault, etc.

Justice Harlan's dissent in Plessy wanted to sort of raise the bar of the 14th to forbid government racial discrimination entirely. And if we did that, then we'd have to "equally protect" the non-minority races under that norm as well.

What's indefensible, to my mind is to say, "Blacks and whatever else minority group get X level of protection under the 14th, but whites only get Y, which is less than X." In other words, if the 14th Amendment means government can't discriminate against blacks, then government can't discriminate against whites either. The logical conclusion of all this would be all racial preferences and quotas are unconstitutional.
11.2.2005 11:28pm
Wintermute (www):
I'm new to this blog, but from the looks of it, I can brush up on constitutional law and not have to plow through a lot of rant.

Analysis can't be confined to liberal vs. conservative. There are other philosophical axes such as statism, federalism, and originalism.

One thing I like about Janice Rogers Brown is that she has publicly followed philosophical positions to their logical implications. This Alito may do the same. Someone at the Boston Globe uncovered an early group he led at Princeton whose positions encouraged me that Alito has not been a total square his entire life. I hope the same about Roberts, that some of what a "liberal" education is supposed to be rubbed off on him before he chose the type of government lawyering where he had to be so political; I just haven't seen sufficient evidence of it yet. We may see some interesting thinking come out of this court. I sure haven't seen much out of the Clinton appointees.

This is way enough for a first comment. Thanks.
11.2.2005 11:59pm
Passing By:
Perhaps Prof. Bernstein should start a "Conservative Originalism in Exile" movement.
11.3.2005 8:27am
Jam (mail):
Anon7:

New situations would be handled by the 9th and 10th amendments. Please note that the unenumerated rights applies to individuals. Nothing could be interpreted as to giving powers to the government. New amendments are only needed to delegate powers/authorities to the government.
11.3.2005 10:08am
Nils (www):
Yeah, go wingnuts! Let's roll back the twentieth century! And let's do it from bench, rather than through legislation? Why bother trying to repeal the Social Security Act through the Congress when we can get "originalist" judges to anti-legislate from the bench! Yeah!
11.3.2005 10:28am
Jam (mail):
Wingnuts?

To properly read the uSC is wingnuts?

To oppose illegal usurpations by the Legislature is wingnuts?

Want to know real wingnuts? To agree with SCOTUS pronouncements that parallel the communist and humanist manifestos is wingnuts!

And some ceyenne peppers to mine. OK?
11.3.2005 11:10am
Jam (mail):
Without the "wingnuts" would not the wings fall off?
11.3.2005 11:11am
Unnamed Co-Conspirator:
David, I apologize. I believe I overstated my reply or perhaps even responded to an argument you didn't make. I don't think I misunderstood you, although upon re-reading my own comment I did treat your post unfairly. Your post did indeed thoughtfully consider a conflict between originalism as a governing philosophy and the judicial restraint that is the intended result of applying an originalist philosophy. I did not intend to attribute to you the idea that all decisions contrary to an originalist interpretation, including many of the New Deal era cases, should be overturned. My issue is with what seems to be losing the forest for the trees (without suggesting that you are) -- elevating the means -- originalism -- over the intended end -- the exercise of the judicial power within the limits contemplated by the Constitution. There are undoubtedly a few holes in my contention that that end is obtainable by applying a version of originalism buffered by a bit of judicial modesty (some would say pragmatism), particularly when judicial modesty suggests leaving in place what amounts to an extra-constitutional judicial amendment to the Constitution.

And yes, I've been (and continue to be) one who believes that originalism is the best approach to interpreting the Constitution, but perhaps I'm not as strongly in favor of making originalism the only criteria to be used in deciding Constitutional cases. Does that mean I have to stop trashing Cass Sunstein?
11.3.2005 12:09pm
Unnamed Co-Conspirator:
SimonD,

I'm betting that you're more familiar with what Bork actually said about the 9th amendment than I am, as well as the context in which he said it. My understanding is that Bork made a remark to the effect that the 9th amendment is a dead letter. Do you think he's generally been quoted out of the proper context? Was he really saying only that the 9th Amendment is not a conduit through which substantive restrictions on federal government power may be incorporated to the states and, in particular, 9th amendment issues are political questions, sort of (or maybe just) like the republican form of government requirement?

There seems to be an implicit assumption by some, particularly on the left, that it is the power of judicial review that gives meaning to Constitutional provisions. Clearly, that was not the framers' understanding. I find it hard to believe that Judge Bork would really consider a provision of the Constitution to be a dead letter merely because it is not useful to judges in reviewing legislative acts. Perhaps you can clear this up for me.
11.3.2005 12:21pm
Shelby (mail):
Not to tread on SimonD's toes, but yes, Bork pretty much considers the 9th a dead letter. (An "inkblot" with no legal meaning or effect.) I don't know whether he thinks "it is the power of judicial review that gives meaning to Constitutional provisions", however.

Bork seems to have a lot of fans around here, and he was certainly treated terribly in his nomination hearings, but I've always been glad he didn't get onto the Court.
11.3.2005 2:52pm
Sebastianguy99 (mail):
It's not just Bork who ignores the 9th Amendment, all the so-called "originalist", "strict constructionist" ignore it.

It is quite easy to see why, and that reason is that it presents a very substantial challenge to them and it comes from within text!

So reading "the text", as we are reminded to do, one is lead to the impression that are unenumerated rights and it says so right there in "the text".

So the 9th Amendment(some would argue the 10th and 11th as well) is "intellectualized" to mean what they need it to mean when they need it to mean it!
11.3.2005 4:50pm
Unnamed Co-Conspirator:
Thank you Shelby and Sebastianguy99. I was curious about the context because it seems like Judge Bork might characterize the 9th as an inkblot or dead letter from the courts' point of view. Although it's hard to imagine that now, almost 220 years after ratification, Congress or a state legislature would make any specific reference to the 9th, it wouldn't seem out of the question that it could happen. The 9th and 10th were a reaction to a reaction. The Bill of Rights, initially thought by some to be rather unnecessary, were included as a concession to those who worried that the new central government, despite being of limited powers, would find a way to expand its scope (imagine that). The prospect of including the specific guarantees of I through VIII led to the concern that the enumeration of certain rights might be construed as limiting, hence the 9th and 10th. It's hard to turn that into a vehicle for incorporation of subtantive guarantees.
11.3.2005 5:18pm
Unnamed Co-Conspirator:
Follow up -- the 9th and 10th don't present such a challenge if you consider the politics of ratification and also consider that it's not appropriate to construe the Constitution in the same way that a statute should be construed -- particularly, there are provisions of the Constitution which may indeed be an unsuitable subject for a judicial decision, and we shouldn't necessarily disfavoring an interpretation by which some language is superfluous, particularly if it appears to merely confirm an idea that is adequately covered in another part of the document or by implication. By acknowledging unenumerated rights in a document that grants to the government it forms only limited powers and then describes guaranteed rights not affirmatively but by way of elaboration on the limitations on government power, the 9th and 10th appear to merely confirm what is already implied. A judge would be reluctant to interpret a statute as including a provision which adds no substance, but that shouldn't necessarily be so where the Constitution is concerned.
11.3.2005 5:33pm
Shelby (mail):
SebastianGuy:

To be fair, shouldn't you acknowledge that some "originalists" and "strict constructionists" disagree with Bork on that? Of course those two categories are not well defined, but surely many of the Conspirators count as one or the other, and endorse a more substantive interpretation of the Ninth Amendment.
11.3.2005 5:59pm
Mr. Mandias (mail) (www):
"You apply origianlism...faithfully....then the American people will decide to scrap the Constitution and rewrite. If you tell us all that the Constitution means exactly what it says....throwing out everything from social security to the DOE to the war on Iraq, overturn the APA, destroy the EPA, etc etc, the American people will simply reject the Constitution and craft a new one that greatly expands federal power."

So what? Its not our job as judges and lawyers to worry about what the people will do. That's up to them.

Frankly, I think the results of that process would be a government with expanded powers but with less power than it has now. I could live with that.
11.3.2005 8:13pm
Mr. Mandias (mail) (www):
I don't know if this is Scalia's approach or not, but one justification for a faint-hearted orginalism is a political one. That is, the public is largely ignorant of constitutional stuff and really only focuses on the results of decisions. So an originalist might think he needs to restore the original meaning slowly, lest the public decide to junk the original meanin gof the Constitution and get back to keeping the 'constitution' around but interpreting it any which way.

The real result of being bold-hearted for originalism is not, as suggested above, a new Constitution. Its new judges, who would be explicitly committed to overturning whatever originalist stuff just happened.
11.3.2005 8:17pm
Alan Meese (mail):
1) I'm sorry, but is my good friend David Bernstein really arguing that Justice Scalia thinks so highly of the New Deal and vast federal regulation of the economy that he therefore ignores the original meaning of the Constitution so as to allow a politically preferred result --- expansive Federal regulatory power? That does not quite compute to me. What is the evidence that Justice Scalia is a fan of expansive federal regulatory power? His antitrust jurisprudence, for instance, suggests the opposite. See Business Electronics v. Sharp, Eastman Kodak v. Image Technical Services (dissent), Trinko, Pinhas.

Put another way, what political agenda supposedly makes Justice Scalia "fainthearted" in a case like Raich?

2) The claim by some here that Justice Scalia is only an originalist for "Culture War" issues is plainly false. Consider, e.g., his view that the due process clause does not give the Court warrant to override punitive damage verdicts. Consider also his very originalist argument on Separation of Powers in Freytag v. C.I.R., rejecting the claim that the tax court is a "Court of Law" under Article II. Then there is Harmelin v. Michigan, the originalism decision showing there is no "proportionality" requirement in the 8th Amendment. Then there is his join of Kelo, his join in Lopez, his opinion for the Court in Printz, etc. etc.

None of these cases has anything to do with the culture wars, and they are all originalist cases.

3) As for affirmative action in universities, what's the evidence that the framers of the 14th Amendment would have allowed a state university to grant racial preferences to individuals who were not themselves victims of state-sponsored racial discrimination? I know of none. I'd like to hear more.
11.4.2005 11:55am