Check out Jack Balkin's very interesting post on the implausibility of the Supreme Court adopting anything remotely resembling consistent originalism with regard to federalism (or anything else) any time in the near future. I agree with much of what Jack says, with two caveats: (1) if the Republican Party had shown a continued interest in federalism, I think Raich might have come out the other way. It's no coincidence, in my mind, that Lopez was decided just after the "Republican Revolution" of 1994, and no coincidence that Raich was decided when the Republican Party was no longer paying lip service to a limited federal government; (2) dominant political coalitions often win the Court for one point of view, only to find that this victory coincidentally came with some additional baggage. As Kevin McMahon has shown, the New Deal coalition's goal with regard to the Supreme Court was to eliminate virtually all restrictions on economic regulation at the federal, state, and local level. FDR achieved this by mainly appointing Justices from the demographic group least likely to object to regulation: northeastern liberals. FDR and many of his supporters had no particular interest in civil rights, but it turns out that northeastern liberals coincidentally also happened to be the demographic most sympathetic to civil rights. [Ilya Somin and I have shown that, along the same lines the Northern Republicans appointed by T.R. and Taft turned out to be unexpectedly at least mildly sympathetic to civil rights in the 1910s.] Similarly, the heart of the conservative coalition right now isn't especially interested in limiting federal power. But it's also true that the Justices most committed to the main conservative agenda are also interested in federalism: Scalia (at least until Raich), Thomas, and Rehnquist have been the most consistent votes in favor of the conservative agenda, but also for limiting federal power. O'Connor and Kennedy were less consistent on both matrices. If you appoint very conservative judges who satisfy core Republican constituencies, these Justices are also more likely to vote for a more originalist view of federal power, not least because the impractical pointy-headed intellectual legal wing of the party almost universally believes that at least some aspects of the New Deal expansion of federal power were illegitimate, and this filters into the worldview of the Thomases, Alitos, et al. of the world. [And an additional caveat: unlike Jack, I'm not persuaded that Big Business, as a rule, favors Republicans more than Democrats; the core of the Republican Party seems to me to be evangelical Christians, military folk, and the Chamber of Commerce.]
But am I optimistic that the "federalism revolution" will be revived? No, at least not until the Republican Party signifies that it would provide some political support/cover for such a move.
Related Posts (on one page):
- Balkin on Originalism:
- Originalism in Crisis:
What cases do you have in mind re: O'Connor? Admittedly she was part of the concurring opinion on Lopez, but to balance out she wrote New York v. United States and even dissented in South Dakota v. United States. She was one of the most consistent federalists on the Court, and it is arguable that Alito may in fact be less of a federalist than she is/was.
So the SC reads not only the election returns, but the party platforms and agenda items? I studied Poli Sci in college and learned more than anyone should about critical legal theory in law school, and even I'm not that cynical. Can you help with a pointer to some background info on this? Does it apply to cutting-edge Constitutional issues more than anything else?
Balkin doesn't like originalism, and is out to discredit it by any means possible - credible or otherwise.
It is certainly "self-evidently true" that if the Republicans were paying more than lip service to limited federal government, there would have been no case or controversy to resolve here!
The war in Iraq would also be unconstitutional (in violation of Congress's authority to declare war, and the meaninglessness of a joint declaration). What percentage of the people who supported a bill that accomplished A above would also support the Supreme Court unilaterally recalling our troops from Iraq?
Okay, moving on...
Is anyone else wondering why cert was just denied in the transsexual employee case? Bad facts?
Having a finger in the political wind would tell you how big an increment you can reasonably take. Sometimes, opinions reached over decades last longer than those reached over years.
Originalist "Federalism" consistently applied would mean that the lines of authority between the states and the federal government would be bilaterally re-balanced - the Federal government would certainly be cut back, but so would the states. Politicians are not interested in a true bilateral re-balance. For example, if orginalism were consistently applied, the 11th Amendment cases (e.g., Seminole Tribe) would certainly come out differently - and in a way that is not supported by the current Republican Party. Raich in part involves the federalization of criminal law, which the Republican Party also supports.
I think it's going a little too far to suggest that the modern state is fundamentally incompatible with the original understanding of the Constitution (which isn't to say that the modern state would survive a reversion to the original understanding entirely as it currently exists, which I don't think is necessarily a bad thing), and I'm not sure why you feel it's a bad thing to require a formal declaration of war from Congress prior to non-emergency military action. But even if we were to grant these points to you, you are arguing against the original understanding by saying "look how terrible these outcomes would be." But this is results-oriented; why is your point any different to Bush selling Harriet Miers based on a shopping list of precedents she would vote to overturn?
What's your alternative? What's this other, coherent and intelligible principle of interpretation that presumably you and Jack have in mind as an alternative to originalism? Living documentarianism? I think most people here can come up with a far worse parade of horrible consequences for that than you offer up for originalism.
Just saying that originalism might disrupt some aspects of the modern state is hardly a credible criticism. It fails to displace the bedrock benefits of that methodology, and does little to establish any serious concerns about it.
I am not sure which "outcomes" you refer to in your post referencing my post. I think it would be good to interpret the 11th Am., as it was written/intended, not as it has been applied. As to the federalization of criminal law -- it depends -- drug trafficing certainly affects commerce among the several states; possessing a gun within 100 yards of a school does not.
I take it from David's post that he concedes this point, with his stated caveats which don't seem to undercut the point Balkin is making. If so, doesn't that leave originalism in exactly the predicament that David decried a couple days ago:
And if true, doesn't that also suggest that, while originalism can have some effects on the margin, its true value is in the "convenience" of pulling it out to justify a particular result?
There's the rub. I think its an extremely good basis for interpreting a text. And so does Scalia, as is evident in both constitutional and statutory opinions. He's disregarded the text of the FTC Act on tobacco regulation and certainly disregarded the text of the 11th Amendment to further his federalism aims.
The American Supreme Court, David McClosky and Sanford Levinson
The Supreme Court and the Attitudinal Model, Segal and Spaeth
The former is historical and well-written; the latter is quantitative and less exciting. Both are extremely important.
It's up to the Congress and the President to refrain from passing unconstitutional laws. That ain't gonna happen, of course, but it has to be a political process federalism or nothing at all.
It's a lot easier for the Court to strike down state statutes, which it does with all the thousands of 14th Amendment rulings, because there are no checks and balances, so it can be activist with much less risk to the institution.
There's no need to amend, there is widespread acceptance of the New Deal and the regulatory state. I think the attempt to "reform" Social Security is but one very prominent example. The same with child labor laws, environmental laws, civil rights, etc..
Conservatives understand this too; that is why they hide their true agenda behind Orwellian langauage. This is also why conservatives haven't pushed for an amendment banning abortion, or any other treasured issue.Professor Balkin does an excellent job at showing why this is the case.
This is the true purpose behind the entire "originalism" movement as it is today. Their rhetoric aside, conservatives understand that they need to effect by judical fiat what they cannot do otherwise.
So it is to conservatives, not the liberals,that you should direct your question.
The Karaites noted that the Bible specifically prohibits lighting a flame on the Sabbath, so they kept their houses dark on the sabbath. The Rabbanites, on the other hand, relied upon rabbinical interpretation that allowed us to leave burning a flame that was ignited before the sabbath."
http://www.jewishvirtuallibrary.org
/jsource/Judaism/Karaites.html
Interesting similarities.
In reality, the reason all those "changes" were done the way they were, was that in every case an amendment would have failed. You don't use explosives to open a safe if you've got the combination. Flexible "interpretation" is constitutional safecracking, nothing more. A way of making changes that wouldn't be accepted by the people whose permission is needed for REAL amendments.
And anyone who thinks otherwise would have absolutely no objection to my proposal above.
"if the Republican Party had shown a continued interest in federalism, I think Raich might have come out the other way." "Just consider how implausible Lawrence v. Texas would have been in 1965, with a much more "liberal" court."
Agreed that the SC responds to external factors to some extent.
But there is a big difference between the changing attitudes towards gays over the 40-year period mentioned above, and the public's attitude towards federalism. Even if Repub standard-bearers gave speeches on the need to shrink the fed gov every week, there is no empirical evidence for the idea that these notions would resonate-- certainly not to the extent necessary to shape the SC's decisions. Very very few people-- and about 2% of elected officials in DC-- care about federalism more than they care about the policy outcome on any given issue.
An identical view is often heard from the left wing of the Democratic Party-- "if only the party had held onto its core convictions, we'd have (expansive program x) by now."
But advocacy of federalism and European-style social programs just does not resonate in the US.
The answer to "Sebastianguy99" is either:
a) have we been introduced? If you don't know me. how do you know what my "true agenda" is? or
b) tu quoc. Liberals true agenda is to impose an alien lifestyle on Americans with out their consent through a judicial coup-d'etat.
Take your pick.
I have not read any of the comments to say that there was anything 'trivial" about the Constitution or the interpretation of the Constitution. It is entirely rational to infer acceptance of the public from their lack of desire for change. I think we would do well to remember that the powers to govern do not come from the words of the text, or the structure of the government, that power comes from the people.
Most citizens do not think in terms of "federalism and European-style social programs", they want to know if their lives will change for better or worse. They think in terms of jobs, security, retirement, etc..