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Is Alito an Inflexible Originalist?
The New Republic has announced that it is opposing the confirmation of Samuel Alito, in significant part because Alito is an "inflexible" originalist:
  Asked what kind of judicial conservative he is, Alito endorsed the doctrine of inflexible originalism, which says that the Constitution should be strictly interpreted in light of the original understanding of its Framers and ratifiers. Inflexible originalists, such as Clarence Thomas, are willing to uproot a great deal of well-settled precedent and practice--including much of the post-New Deal regulatory state--on the grounds that it is inconsistent with an eighteenth-century understanding of the scope of national power. "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption," Alito said.
I went back to the transcript to get Alito's complete statement, and it seems to me that TNR's description is rather misleading. Senator Brownback had asked Alito, "Could you articulate your view of how you look and interpret the Constitution?" Here is Alito's response:
  In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.
  But I think we have to recognize that the Constitution is very different from statutes in some important respects.
  Statutes are often very detailed, and they generally don't exist without revision for very long periods of time.
  The Constitution was adopted to endure throughout the history of our country. And considering how long our country has existed, it's been amended relatively few times.
  And the magic of that, I think, is that it sets out a basic structure for our government and protects fundamental rights. But on a number of very important issues, I think the framers recognized that times would change, new questions would come up. And so they didn't purport to adopt a detailed code, for example, governing searches and seizures. That was the example I gave yesterday, and I'll come back to it.
   They could have set out a detailed code of search and seizure; they didn't do that. They said that the people are protected against unreasonable searches and seizures, and they left it for the courts — and, of course, the legislative body can supplement this — to apply that principle to the new situations that come up.
  Now, when that is done, that doesn't amount to an amendment of the Constitution or a changing of the Constitution. It involves the application of a constitutional principle to the situation at hand.
  The New Republic editors look at this answer and conclude that Alito "endorsed the doctrine of inflexible originalism, which says that the Constitution should be strictly interpreted in light of the original understanding of its Framers and ratifiers." But as I see it, Alito was saying something else: he was suggesting that you start with text and original public meaning, but then abstract the fundamental principle that is embodied in that text and apply that principle to the situation at hand. As Alito put it, "times . . . change, new questions . . . come up." Whether Alito's approach is right or wrong, it seems rather different from TNR's description of it.
Oh my word (mail):
It is very misleading--in fact, TNR is being straight-up misrepresentative. For shame.
1.19.2006 4:34pm
Bobbie:
The real question is why aren't more legal conservatives opposed to Alito? They have been ranting and raving for a while now about non-originalist modes of interpretation, and they've suddenly become quiet. It's almost like they don't really care about originalism *gasp*, but simply want justices, like Alito, who will come to conservative results.
1.19.2006 4:36pm
Greedy Clerk (mail):
TNR is just trying to buy back credibility with the more liberal base of the Democratic party. Given that they endorsed a Republican (Joe Lieberman) in the last Presidential primaries, they have lost quite a bit of cred.
1.19.2006 4:38pm
Fishbane (mail):
There you go again, actually reading the original text of what the man said, rather than interpreting it. Originalists will never learn!
1.19.2006 4:41pm
Julian Morrison (mail):
Seems to me they got it right in part - he is an originalist, in that he references the text and not an intended outcome. He didn't even mention precedent there - only the timeless principle, and the timely attempt to apply it.

By this method, if that were the be-all and end-all, the obvious misreadings that liberals love could well be swept aside. They are precedent, but they're also blatant distortions. He said nothing there about keeping the distortions in place. So they're right to fear him - he might undo all their mischeif.
1.19.2006 5:00pm
dk35 (mail):
Orin,

Since you're an open supporter of Alito (I don't mean that in a pejorative sense...you've happily admitted to this on the blog several times now so I'm just assuming it as fact), I'd be very curious to hear your response to Bobbie's comment above.

I have to say that Alito's response resembles most closely Breyer's judicial philosophy. Maybe there's some hope for him after all?
1.19.2006 5:00pm
LG:
I completely agree with Greedy Clerk. TNR has gotten shellacked for its backing of the war, and has been tacking hard left over the past year or two, as if they are trying to steal readers back from The Nation. Once in a while they pick a fight with Kos, but most of the time are on the same page. On the legal front, they started with the baseless "Constitution in Exile" accusations, then support of Kelo and Raich decisions, and now this. Interesting definition of "judicial restraint"...
1.19.2006 5:05pm
A.S.:
Whether Alito's approach is right or wrong, it seems rather different from TNR's description of it.

Let's call a spade a spade, OK? TNR is lying.

I'm shocked, shocked.
1.19.2006 5:12pm
42USC1983 (mail):
I see that Stephen Glass is back on TNR's payroll...
1.19.2006 5:12pm
Sha_kri:
The issue of what exactly the function of the Supreme Court is really needs to be addressed IMHO.
1.19.2006 5:21pm
OrinKerr:
dk35,

Yes, I think a lot of conservatives will probably be somewhat disappointed with Alito: my sense is that he is not the hard-core conservative (either in methodology or result) that some people seem to be expecting. With that said, I don't think many political conservatives are actually originalists, either.
1.19.2006 5:21pm
Dave:
TNR is usually a lot better than this.

Dave
1.19.2006 5:35pm
wt (mail) (www):

But as I see it, Alito was saying something else


Orin, I understand you're trying to be diplomatic, but I wish you would hold TNR's feet to the fire a little more here.

There is an obvious error in their reporting. Even if it was just an oversight, it's a glaring, and perhaps, reckless one. A stern post stating as much might actually catch the attention of some of their writers and editors.
1.19.2006 5:45pm
Bobbie:
Has any political conservative come out against Alito because there's no evidence he's an orginalist? I know conservative blogs, like redstate and southern appeal, have shown no backbone on this issue, but has any conservative academic? Have any of the originialists on this site come out against Alito?
1.19.2006 5:47pm
SimonD (www):
"The New Republic has announced that it is opposing the confirmation of Samuel Alito, in significant part because Alito is an inflexible" originalist"

The New Republic is is opposing the confirmation of Samuel Alito primarily because it's a left-leaning magazine that opposes more-or-less every aspect of the Republican view of society and the courts. Any addional verbiage on their part is strictly window dressing.
1.19.2006 5:49pm
Thorley Winston (mail) (www):
The New Republic is is opposing the confirmation of Samuel Alito primarily because it's a left-leaning magazine that opposes more-or-less every aspect of the Republican view of society and the courts. Any addional verbiage on their part is strictly window dressing.


Nailed it in one.
1.19.2006 5:55pm
dk35 (mail):
Orin,

Assuming that Scalia, for example, stands for someone who sometimes employs less than conservative methodology to achieve conservative results (from David Bernstein's recent post, I think I'm not saying anything that a conservative would necessarily disagree with), do you see Alito falling into that category? Your comment to me seems to indicate you don't think so, and that you think Alito may actually be less conservative with regard to some results than many conservatives think is true. Care to be more specific on which results you have in mind?
1.19.2006 6:03pm
SimonD (www):
Incidentally, the claim that the opponents of originalism desire "flexibility" is patently absurd; see comments from Scalia here. How much "flexibility" do the people who demand Roe be absolutely inviolable really want? How seriously can we take their hostility to "inflexibility" when they are opposed to any flexing of civil liberties to fight the war on terror? The reality is that these peopel are not interested in flexibility or rigidity, they are interested in getting their own way. They demand flexibility in the scope of congressional power, and rigidity in the scope of executive power; they demand flexibility for those rights they oppose, and rigidity of those rights they support. It is utterly cynical, utterly disingenuous, intellectually incoherent, and it really is pretty sad to see that so many people who are actually very smart, not only propagate, but believe this ludicrous propaganda.
1.19.2006 6:04pm
OrinKerr:
dk35,

Interesting questions. I'll work on a post about that, rather than try to answer in a comment.
1.19.2006 6:08pm
JunkYardLawDog (mail):
Orin, I think your description of what judge Alito said is correct. That's the understanding I took as well when watching him speak these words. I also think that this is the definition of originalism itself. I think both you and the TNR are correct. Textual/Originalism was always about discerning the principle set out in the original text and understanding of the time, and applying it to the facts at hand. That is exactly what is done when the first amendment is applied to mega newspaper, radio, and television conglormerates, the internet, email, television, etc.

Textual/Originalism is the only proper method of constitutional understanding. Every other method leads to the constitution as a BLANK piece of paper which is written on from time to time by 5 out of 4 high priests in black robes. Making up their laws and edicts from on high as they go.

I believe the social compact theory of constitutional law is the theory that most closely describes the reality of the constitutional process as set into motion by the founders. The founders set out in the text of the constitution the rules to which people in the country by their votes agreed to be bound. They further agreed to bind their descendants to those same rules, unless or until those rules were amended in accordance with the amendment process of the constitution.

The descendant's of the founders only have an obligation to abide by those constitutional rules that have been agreed to by the vote of the people. It is the living embodiment of the government's derivation of power from the consent of the governed. The original rules were consented to by the governed. Newly born citizens inherit as their birth right the rules previously consented to by their parents, grandparents, ancestors, etc. When changes to those rules are made NOT by the consent of the governed but by 5 out of 9 unelected federal judges usurping the amendment process and usurping the consent of the governed, then government loses or begins to lose any pretense of moral authority to exercise its powers over the citizens it governs.

Its not a relevant argument imho to argue that the amendment process is difficult. Unless and until the consent of the governed is obtained with regard to changes in the rules previously consented to, then the citizens have no moral or civic obligation to follow constitutional rules to which neither they nor any of their ancestors have consented. In such a case these extra-constitutional or unconstitutional rulings of the supreme court are enforced by the might of the federal government and not by the right of the federal government.

Says the "Dog"
1.19.2006 6:11pm
SimonD (www):
DK35
Assuming that Scalia, for example, stands for someone who sometimes employs less than conservative methodology to achieve conservative results (from David Bernstein's recent post, I think I'm not saying anything that a conservative would necessarily disagree with)
I don't disagree with the underlying thought, but I would suggest that a better way of phrasing it would be that he sometimes deviates from his own touted methods, and when he does so, it does often (not always) tend to be to support results one would assume (although you know what happens when one assumes) that Scalia likely prefers.
1.19.2006 6:12pm
dk35 (mail):
Thanks Orin.

SimonD: I'm prepared to accept your modifications (see, not all liberals are completely intransigent), though I do think that sometimes (certainly not always) one could point to Scalia's own writings/statements to support (though, obviously, not conclusively prove) some of the assumptions of what results Scalia likely prefers.
1.19.2006 6:28pm
Marcus1 (mail) (www):
Prof. Kerr,

I disagree; I think he danced around the idea of a living Constitution, but specifically declined to say it.

By my reading, Alito simply acknowledged the obvious: that the Constitution was written in general terms to allow flexibility over time. He didn't draw the modernist conclusion, which is that the terms should therefore be allowed contemporary meanings.

The flexibility he's talking about, as I read it, is the kind involved in protecting "the right to bear arms" rather than the "right to bear a musket." It's not the kind where you say, "Well, what does liberty mean in 2006." He would still, presumably, ask what liberty meant when the phrase was written, but would simply apply it in contexts, such as computers, that the framers never considered.

I imagine that's now TNR read it, which is how I read it as well.
1.19.2006 6:31pm
Bushrod, J. (mail):
Marcus1, you beat me to the punch.

Alito stated a truism insofar as originalism is concerned.

He didn't say, for example, that the Commerce Clause was correctly read in Gonzales v. Raich, though as I recall the hearings he had the chance.

Instead, in my view, all he admitted is that -- with the Commerce Clause, for example -- he'd apply *his* view of what the CC meant in the late 18th century and apply it to the facts of the case.

That sounds awfully like Justice Thomas.

I think TNR nailed it. And I happen to support the concept of originalism and, especially, a muscular 9th and 10th Amendment.
1.19.2006 6:47pm
Marcus1 (mail) (www):
Junkyardlawdog,

>Textual/Originalism is the only proper method of constitutional understanding. Every other method leads to the constitution as a BLANK piece of paper which is written on from time to time by 5 out of 4 high priests in black robes. Making up their laws and edicts from on high as they go.<

Well, that's obviously not true. A living constitution is still a Constitution; it's simply more flexible. It uses ambiguity to inject a degree of case-by-case and day-by-day reasonableness into Constitutional interpretation. But the extent of the ambiguity is still the limit of its power.

While there may be theoretical attacks on this flexibility, there are plenty of theoretical attacks on originalism as well. For instance, how do you determine the intent of a group of people 200 years ago? And if it's impossible to really attain, then why focus entirely on approxamating it, rather than focusing some also on what's reasonable?

There's a reason political conservatives end up as judicial conservatives and political liberals end up the other way. Conservatives like things the way they used to be, and liberals want things to change. You can argue that without originalism there is simply too much flexibility in the Constitution. And liberals can argue that the flexibility should be greater. The idea that the flexibility results in complete and utter control by the Judiciary, however, is simply not true.
1.19.2006 7:01pm
dick thompson (mail):
Marcus1,
The problem I see with your living constitution is that the people thereby do not have a basis to determine whether what they are doing is legal or not. You are essentially leaving it up to the judge and how he feels that day to determine what the constitution says. The chances for the average person to get really and truly screwed are astronomical under your interpretation.

I think that the benefit of the originalists is that the people, who are after all the government, at least have a basis for determining what is legal and what is not. If they do not agree with the legality of something then they have the right to get their legislature to change it. I as a non-lawyer would like to be able to have some firm basis for determining what I can or cannot do without breaking the law and under the form of our government that seems to be the way the country was set up. Notice how many times the terms unreasonable show up.

That is the genius of the Constitution as set up once the Bill of Rights was added. If the police or the other parts of the government try to interfere with my life I have a basis to determine if it is reasonable or not and whether I will then take action in the courts in my behalf. With the living constitution the government can just say that's the way it is and I am essentially at a loss to point to any firm basis to dispute that. When you think about it the Kelo decision seems to me to come very close to being based on a living constitution and I certainly think that was a total screwup.
1.19.2006 7:25pm
SimonD (www):
Marcus,
While there may be theoretical attacks on this flexibility, there are plenty of theoretical attacks on originalism as well. For instance, how do you determine the intent of a group of people 200 years ago? And if it's impossible to really attain, then why focus entirely on approxamating it, rather than focusing some also on what's reasonable?
While I disagree with your suggestion that the living constitution is no more or less valid than originalism (that is to say, I think it is not merely less valid, but not valid at all), the statement quoted above is the part I feel I have to take issue with most.

And really, my disagreement - a familiar refrain, to be sure - boils down to this, really simple question:

What's intent got to do with it?

Be honest: how many originalists -- that is to say, people who actually know what the term means, and use it in the correct legal sense, rather than people in the GOP base that use it interchangably with "strict constructionists" as an inaccurate euphemism for conservative Judges -- believe in the theory of original intent? I literally know no originalists who believe intent is relevant to any judicial inquiry, let alone an originalist one, for reasons I pointed out here.

So I guess my question is, why would you want to try to cite the difficulties of determining the original intent of the framers as a criticism of originalism, when the original intent is of scarcely more relevance to modern originalism than what James Madison ate for breakfast?
1.19.2006 7:55pm
Ross Levatter (mail):
TNR states: "Inflexible originalists, such as Clarence Thomas, are willing to uproot a great deal of well-settled precedent and practice--including much of the post-New Deal regulatory state--on the grounds that it is inconsistent with an eighteenth-century understanding of the scope of national power."

This really burns me, and I see it all the time. I would suggest that it is NOT that Thomas is willing to uproot "well-settled precedent" it's merely that (he thinks) if people want to amend the Constitution there's a prescribed method for doing so. If the American people WANT the Commerce Clause to mean that Congress's power to regulate is plenary, they can urge their Senators and Congressmen to pass an amendment. But if that's not done, and if precedent, no matter how "settled", is clearly in violation of the manifest meaning of Constitutional provisions, what's the point of having a written document?
1.19.2006 9:54pm
Marcus1 (mail) (www):
Dick Thompson,

>When you think about it the Kelo decision seems to me to come very close to being based on a living constitution and I certainly think that was a total screwup.<

Can I ask why you think that? The Kelo decision represented judicial restraint. The court declined to overturn a legislative action, because it found nothing in the Constitution that prohibited what the legislature did.

It was the conservatives, in dissent, who wanted to read things into the Constitution. They wanted to assume that simply because the Constitution uses the phrase "public use," that this must be turned into a limitation on state legislatures, even though that is not how it is written. And not only that, but then to assert that the word "use" must be interpreted very narrowly, such that it doesn't include anything that is more accurately described as a public "purpose."

I find it very ironic that because the majority rejected this very inventive approach, they are accused of rewriting the Constitution.
1.19.2006 11:24pm
SimonD (www):
Marcus,
That argument is the logical flipside of the "judicial activism = overturning statutes" theory I suppose - a specious theory I wrote to dispute here (at pp. 2-4). My initial reaction to Kelo can be found here; it essentially provides my views on the points you make, and my opinion has not changed since that time.
1.20.2006 12:04am
Marcus1 (mail) (www):
SimonD,

Ok, perhaps to purists it is not about intent, but rather about the historical meaning of the words.

Doesn't this still create a huge problem, though, with trying to determine what a phrase meant 200 years ago? Not only does this open the door to competing histories, but it turns the Constitution into something completely indecipherable to the average citizen, who then has to be a historical scholar to have any idea what a phrase means.

There are still many fundamental questions which followers of these purist ideologies gloss over. Where in the Constitution does it say that a word shall forever retain it's 18th century meaning? What is your basis for thinking that yours is the only valid interprative view? To me, the framers' use of generalities so the Constitution would survive the ages suggests that they would never have adopted this strange multi-century originalist ideal.

The fact is that the framers recognized the significance of the judicial power. Virtually all societies, I think, have recognized that judging involves using some personal judgment. The idea that judges should banish any thought other than historical meaning strikes me as very ahistorical. It seems, rather, an effort simply to hobble the judicial branch.
1.20.2006 12:07am
SimonD (www):
Marcus,
About intent vs. meaning, I think it gets it precisely backwards to say that it is only purists that favor original intent; indeed, virtually every self-described originalist of whom I'm aware means the original meaning, not the original intent, for the reasons offered in the Wikipedia article. I will try to answer your other points, but I'll have to do so tommorow morning, as I don't have time tonight. I just wanted to get the above clarification in.
1.20.2006 12:18am
Marcus1 (mail) (www):
SimonD,

To an extent, "judicial activism" does involve overturning statutes. Alito, for instance, professes a view by which a great deal of deference is given to legislatures, so he won't often overturn their laws. He's an anti-judicial activist.

Even so, this was not the extent of my argument. The fact is, although it may be too late for the world to recognize this, there simply is no public use requirement in the constitution. It's simply not there.

Here's a sentence for you: "Nor shall my lawn be used for soccer without just compensation." Does this create a soccer requirement? Does it create a lawn requirement? Does it mean frisbee on my lawn is completely prohibited no matter what? I'll go to my grave wondering why otherwise intelligent people lose their ability to read when they come across this sentence, but if you are really a conservative, you should easily see that the public use requirement is nothing more than a judicial invention.
1.20.2006 12:31am
Defending the Indefensible:
Marcus1,

Even so, this was not the extent of my argument. The fact is, although it may be too late for the world to recognize this, there simply is no public use requirement in the constitution. It's simply not there.

So the words "for public use" were a legal nullity, to be diregarded, a mere rhetorical flourish with no effect?

If that's your position, I can't really agree with it.
1.20.2006 2:23am
SimonD (www):
Marcus,
I suppose that judicial activism can involve overturning statutes, in the same way that one does not make an omelette without breaking eggs - but just as breaking eggs is not making an omellette, overturning a statute is not in itself judicial activism; as I suggested in Less nebulous than you'd think:
It cannot be judicial activism to strike down a statute that actually is unconstitutional . . . Rather, a decision is an act of judicial activism if it uses the judicial power to strike down a law that is not unconstitutional, or to uphold a law which is unconstitutional . . . [T]he conflation of "action" with "activism" is false; the court cannot be activist simply by adhering to the constitution. By contrast, it cannot be anything other than activist if it defers to the legislature by creating legislative authority where none existed. One can be activist not only by taking action where none is required, but by refusing to take action when it IS required.
To make your hypothetical fit your argument, you would have to be drawing the inference that because the sentence says "nor shall my lawn be used for soccer without just compensation, that any use other than soccer is fine. Even within this hypothetical, the statement that your law can only be used for soccer on payment of due compensation does exclude other uses, unless you read it in a way that the soccer clause creates no restriction on the range of activities, which in turn, forces the conclusion that you can play cricket on the lawn without paying just compensation.

So it is with the emminent domain clause. It says that you can only take private property for public use upon payment of just compensation. The question becomes (and Stevens' opinion in Kelo admits it), can the government take one private citizen's property and give it to another private citizen? Under your theory, they can: after all, it's not a public use, so there's no need to pay compensation, right? That might not be against the literal text of the Fifth Amendment, but I think all will agree that it's clearly beyond the bounds of its meaning. For that matter, why pay just compensation anyway - after all, if the requirement that it be for public use is just excessive verbiage, or at best, an advisory comment, why not read the just compensation clause in the same way? It's just a little nullity, doesn't really mean anything. For all the shouting about how "economic development" really is a public use - or that the tax revenues that will accrue from new private development will be put to public use which makes the taking an indirect public use, an argument I really can't agree with - none of those who defend Kelo on these grounds have answered Justice Thomas' very reasonable question: if this taking is public use, what isn't?

At root, your contention that the public use requirement is a judicial invention flat-out ignores what the text actually says. Like all those conservatives who like to read the treaties part out of the supremacy clause, you're reading the term "public use" as meaning literally nothing, as if the fifth amendment said "nor shall private property be taken without just compensation." But that isn't what it says, or at least, it wasn't before Kelo.

I'm working on a reply to your originalism post, check back at lunchtime. :)
1.20.2006 8:59am
Marcus1 (mail) (www):
DtI,

Your question, essentially, is why then they didn't just say "Nor shall private property be taken without just compensation."

There could really have been many reasons. I'd venture the main reason was that they wanted a sentence that clearly dealt with eminent domain. A sentence that controlled takings by any public entity. It could also address the idea of a regulatory taking, saying that if they put a road accross your land for public use, that's taking it (though I know little about regulatory takings).

Even if you think that is not enough meaning for the words "public use," though, and you would like to give them more meaning, it is still simply impossible to get to the "public use requirement" without making it up. The only way it is done is by taking false "absurdities" and exploiting them into huge assumptions none of which exist or are remotely necessary. It's one of the weirdest things I've seen done to the Constitution.

If the framers wanted a public use requirement, they'd have made one by saying "Nor shall private property be taken, except for public use, and with just compensation." They're smart guys -- they could have figured out to say it. When they didn't, I think it's quite irregular to say, "Oh, well that must be what they meant, so we'll just take the words 'public use' and reverse them into a positive requirement and then turn it into a broad proscription baring anything where private parties benefit." That's not a conservative reading of the Constitution.

In the simplest terms, if you showed the 5th Amendment to 100 smart people who had never seen it, and you asked them to give meaning to every word, not one would come up with the idea that a taking HAS to be for a public use. It's essentially the exact opposite of what clause says, which is that the Government shall NOT take land for public use, unless it pays.

That conservatives uniformly ignore this glaring absurdity, while ranting ad nauseum about supposed inventions like "the separation of church and state," I think, seriously draws into question the sincerity of their grand constitutional theories.
1.20.2006 10:01am
Marcus1 (mail) (www):
SimonD

As to the Soccer hypo: My rule says nothing as to whether cricket is allowed. I may or may not allow cricket without compensation. Maybe I won't allow cricket, but I will allow croquet, because croquet doesn't cause damage to my lawn. Your assumptions on whether cricket or croquet are allowed, however, are simply in your head. They were not in my head when I barred soccer from my lawn without just compensation. And by no rule of interpretation, other than the crazy 5th amendment one, did I actually bar cricket or croquet altogether.

Of course, this could lead to the conclusion that a "private taking" therefore does not require just compensation, since it is not addressed. This is silly, however, as it is based on the strange assumption that the government is capable of making a "private taking." The clear answer to this "problem" is simply to acknowledge that if the government takes it, it is a public use. Which means that the government has to pay. Very clearly, this was the intent of the clause, which was to require just compensation for government takings.
1.20.2006 10:21am
SimonD (www):
How does one determine the original meaning? The joy of it is, there are so many sources. We can look to tradition and context; contemporaneous dictionaries, legal traditions inherited from the common law, the post-revolutionary state constitutions, the Federalist and antifederalist papers, the longstanding traditions of America under the Constitution, to name but a few. Prof. Michael Rappaport provided a good description of the general method of the original meaning inquiry in The Original Meaning of the Recess Appointments Clause (a paper that was very important to me a few months ago, see The recess appointment power: not so fast, 8/1/2005), and I summarized that decription here.

Two difficulties arise, and I know you'll point them out if they aren't addressed. What does the Judge do when the original meaning is either unclear or not dispositive, and what does the Judge do when faced with contrary (i.e. nonoriginalist) precedent?

The reality is that sometimes, just knowing what the Constitution says isn't sufficient to answer the question: that is to say, either the original meaning cannot be reliably determined, or once it has been determined, it lends itself to more than one possible explanation. This leaves you with several options. You could follow Lee Strang's proposal, and defer to the elected branches where the original meaning is unclear or not dispositive. Or you could follow the Scalian school, and defer to the role of tradition in giving content to ambiguous text: if a litigant suggests he has a right that isn't supported by the text of the Constitution, and for two centuries nobody has claimed the same thing and states have been permitted to abridge that right, it seems pretty clear to me what the outcome there should be. Or, you could look at precedent: if the original meaning lends itself to two constructions but for the last hundred years, Courts have interepreted it to mean one of those constructions and state legislatures have acted on the presumption of the same construction, I think that answers the question of what to do.

What to do with erroneous precedent is a tricky question which different originalists have answered in different ways; my own answer can be found here with a brief addenda here and related materials generally here. It seems to me that the central question for originalism right now is what to do about precedent. There are numerous theories, some which are good, some which are good within their own terms but create conflicts with formalism. The definitive originalist apologetic does not yet exist, and may never get written, but when it does, it will need to answer the precedent question in more depth.

Originalism is not the art of hobbling the judge (or at least, no further than formalism does so in general), but of confining them to the judicial role. As you say, the framers recognized the significance of the judicial power, which is one reason why they were careful to create a constitution which had a specified amendment process, and required the concurrence of only two branches - not the judiciary - in the making of laws.
1.20.2006 11:20am
Chris24601 (mail):
Thought I'd advertise again my brand of textualist semi-originalism, which both Alito (see above) and CJ Roberts (see here) seem like they might agree with: the sense/intension/connotation/meaning of constitutional language is fixed at the framing, but its reference/extension/denotation/application is not, because it depends on the reference-yielding facts.

I think the bad-precedent question isn't really a special problem for originalists: it's a question about the relationship of constitutional interpretation to constitutional law. As I see it, originalism (or semi-originalism) is a theory of constitutional interpretation, not constitutional law. Whether our constitutional law should adhere to the Constitution itself is a separate question from how we figure out what the Constitution in fact requires.
1.20.2006 11:54am
Marcus1 (mail) (www):
SimonD,

It seems you've advertised your preferred method of constitutional interpretation, but I don't see how you've made the case for why it is the only defensible method. I don't think there's anything particularly wrong with your approach. I just think other approaches happen to be better.

For instance, rather than having judges simply focus on tradition and historic meaning, I would have the judge also consider what makes sense today, by today's standards. In my mind, the process for amending the constitution is simply too onerous for certain small things or things affecting small numbers of people. Thus, allowing Judges some judgmental discretion is very important so that we are not bound to onerous trivialities of majorities past.

And contrary to the attacks of Conservatives, I do not believe the use of such contemporary judgment turns judges into kings. As I said, they are still limited to the extent of the ambiguity in the text, and the elected branches are always able to overturn them through the proscribed methods -- either through passing laws or through constitutional amendments.

To me this creates a much more effective balance of powers, because it allows an infusion of the knowledge, wisdom and serious thinking that goes on in the judiciary into the political process, while this power is still effectively limited if the popular will is sufficiently there to overturn it. Under your scheme, it seems you try to completely stamp this process out. I don't believe this is what our framers envisioned. They were well aware of the potential "Tyranny of the majority."

So how do you assert that this view is utterly meritless?
1.20.2006 12:38pm
SimonD (www):
Marcus,
Vis-a-vis the takings clause, I think we're starting to get to the point where we're going to have to agree to disagree (or at least, to table the discussion for now). With respect, I see what you're saying, but I disagree; I think it's very clear that the takings clause requires the taking to be for public use, and I don't think even the Kelo majority disputes as much: they simply argue that the taking in that case is a public use.

You might think - as the Kelo majority contends - that if I wanted to knock down your house and build a WalMart in its place, that I could simply bribe the local government to exercise its emminent domain power, and that use would be valid because a) people can shop at WalMart, and b) my WalMart's going to generate much more in tax revenue than your house, thus, it meets the requirements of the takings clause.

So let's say you agree with that proposition, because that's actually exactly the position you're defending, I think it's fair to say. But surely you will agree that, if I wanted to knock down your house and build a a private residence for myself on your land, I can't simply pay off the county government to excercise its emminent domain power to take your land to give to me for a purely private purpose. But once you accept this much, surely in doing so, you also accept the principle that the takings clause imposes some restriction on what purpose government can take land for? If so, where does that restriction spring forth, if not the public use clause, and how extensive is it? What is its limit?

Everyone quotes Madison in Federalist 51, that "if men were angels, no government would be necessary," but they forget (or conveniently decline to mention) that there was a second clause in that sentence, one that is less often quoted: that "if angels were to govern men, neither external nor internal controls on government would be necessary." It seems to me that assuming good faith on the part of government when discussing the restrictions of the Bill of Rights is mistaken, because the Bill of Rights wasn't designed to protect people against government doing the right thing, but to protect them from when government acts in bad faith, when it is corrupt or oppressive, when it abuses the minority for its own purposes or the purpose of the majority. I cannot accept your reading of the takings clause because it ignores the plain text of the amendment and in doing so, removes a major restriction on the ability of government to harm an individual, even if purportedly for the benefit of the majority, something which seems to me to be completely at odds with the focus of the Bill of Rights on protecting the minority from the majority.
1.20.2006 1:05pm
SimonD (www):
Chris,
I remember thoroughly enjoying but really struggling to understand your paper, most liklely because I'm not a linguist. I'd certainly suggest others download it and read it.

I'd suggest, though, that bad precedent actually is more of a problem for originalists than for living documentarians. Stare decisis, as I see it, is a doctrine which elevates the authority of a decision without reference to its intrisic merits or its pursuasive ability, in the name of ensuring stability and predictability in the law. If you believe in an evolving Constitution, this is par for the course - but it does create a problem for the originalist Judge, who must inevitably face (sometimes longstanding) precedents which were flat-out wrongly decided as an original matter. What the judge does next - does she take the Thomascene "overrule the bad precedent" approach? Accept it as a matter of precedent? Circumscribe its future application? - is a central problem for a judicial theory which often likes to tout its determinacy and discretion-reducing capacity. In my view, as much as it pains me to say it, originalism will be at severe risk of being a theory "that knows how to die but not how to govern" - that is, a gloriously pristine academic concept, but not a practical playbook for the practising judge - if it cannot adequately address stare decisis.

My own view is as follows. I do not believe that stare decisis can be followed to a result which cannot be reconciled against the original meaning of the Constitution. However, it seems to me that the purpose of stare decisis is stability in the law, and it further seems to me that Originalism is not always determinative; judging is not a mechanical business, because it must take generally-applicable text (the Constitution, statutes, agency rules and so on) and apply them to a specific case or controversy which is before the Court. Two originalists can reach different results in the same case, without either engaging in bad originalism, as Justice Scalia and Thomas have repeatedly demonstrated.

Now, when the Court faces a case and finds that there is a line of precedent which could lead the court, in this case, to a result which simply can't be squared against the original meaning of the constitution (or indeed, the plain meaning of the staute), in those circumstances, I would rule in line with the Constitution. But originalism is a theory of interpretation, not of construction, and simply discerning the original meaning of a certain clause is not the same thing as deciding how it relates to a concrete case. Let's consider a hypothetical case which comes before the Constitution. This case implicates a particular clause of the Bill of Rights - it doesn't matter which one - and having carried out an originalist inquiry into the original meaning of that clause, we reach the conclusion that there are three different, more-or-less equally reasonable ways which one could decide the case while still remaining within the ballpark of the original meaning of the clause. What I would do next is to look at the precedents of the court: how has the court applied this clause to similar cases in the past? And if I discovered that for a hundred years, with only minor and occaisional departures, the court had consistently applied one particular of those three ways, even if that's not the way I would prefer to rule were there no applicable precedent, I think that stare decisis should be followed, and the case decided based on the line of precedent which does not compel an unconstitutional result.

In other words, I think that stare decisis should generally hold sway whenever the result is reasonable and comports with the original meaning, even if that result is not the result I would prefer as an original matter. I do not believe that every day should be a new day in the interpretation of the Constitution; while precedent can never trump original meaning, I think that stare decisis does have a valuable role to play, even for Originalists.
1.20.2006 1:06pm
SimonD (www):
Marcus,
Respectfully, while I readily agree that it is well-meaning (see brief comment here), I do assert that it is meritless.

As you aptly demonstrate by your support for Kelo, though, they are not constrained by "the extent of ambiguity in the text" - as they did in Maryland v. Craig, the majority reached its verdict only by reading certain terms out of the text, just as it reaches other verdicts by reading other terms and rights into the text. Or look to the decade-and-a-half in which two Justices of the Court insisted that a punishment explicitly sanctioned in the text of the Constitution is actually unconstitutional; you just couldn't make this stuff up, and although none of the current liberal bloc are quite so breathtakingly audacious in the eighth amendment sphere as Brennan and Marshall, they're doing their best in their nascent effort - led by Justices Stevens and Breyer - to allow prisoners to run out the clock on their death sentences (see discussion here and in follow-up post linked from there).

Once you have a judiciary that is free to, in effect, have only the most esoteric relationship to the text (granted, they are not truly free to legislate in the manner of kings, in the sense that they would presumably not have the nerve to attempt to apply the principles of the reapportionment cases to the United States Senate), you are essentially giving them the discretion to make it up as they go along.

In any instance, when Judges are free to make law, they arrogate to themselves a power explicitly reserved by Article I to the Congress, and when they attempt to change the provisions of the Constitution - which is a very distinct business to the creation of doctrine to give effect to constitutional principles, see comments here - they arrogate to themselves a oiwer explicitly reserved by Article V to the states. The Constitution is addressed from us, to the government, not vice-versa; it is a charter from the people: we assent to the government doing these things and surrender as much of our freedom as is necessary to do those things. But if government can alter the terms of that charter - and the courts are part of the government - then the relationship fundamentally changes. Originalism is important because otherwise - under the cover of the best intentions - the power of the people to govern themselves as they see fit is ceded. We focus on the historic meaning rather than the contemporary meaning not because what the people want today is irrelevant, but because the people have already agreed to certain ground rules in the historical meaning, and those alive today have a well-defined method of changing those rules if they wish.

If the people want a right to an abortion, for example, they can create one. Nothing in the Constitution forbids the protection of that right by a state; nothing in the Constitution forbids its amendment to include such a right. I would oppose such an amendment, but I would not regard it as fundamentally invalid, as Roe is. Likewise, nothing in the Constitution requires the use of the death penalty; you don't like it? Abolish it! My constitution is very flexible, but only to a point: its words still have meanings.

To me, this creates a much more effective balance of powers, because it ensures that the people will continue to govern themselves; a majority may not impose itself on a minority without following the formal supermajority requirements of the Constitution. The problem is that, while your description of paternalism is terribly benign, when you say that your form of judicial activisim "allows an infusion of the knowledge, wisdom and serious thinking that goes on in the judiciary into the political process, while this power is still effectively limited if the popular will is sufficiently there to overturn it," what this actually amounts to is this: judges can make any decision they like unless massive popular outrage can be mobalized to stop it. So, for example, five Judges can amend the Constitution to delete the public use requirement out of the takings clause, but unless massive public outrage can be mobilized to such extent as to use the Article V amendment process. Surely you can see the absurd asymmetricality of this proposal.

And of course an originalist will "try to completely stamp this process out" - that process is, in practise, government by judiciary, and I am absolutely certain that it is not what the framers envisioned. As you say, they were well aware of the potential "tyranny of the majority," which is precisely why they made it very hard to amend the constitution, and may well be why they declined to add a quick-n'-easy bypass mechanism through which Judges could insert the views of the majority, let alone a minority. In the end, it doesn't matter whether judges are abusing the constitution to please their own views or those of the majority (see comments here, the fact remains that they're abusing their power.
1.20.2006 1:48pm
Marcus1 (mail) (www):
SimonD,
I think it's very clear that the takings clause requires the taking to be for public use, and I don't think even the Kelo majority disputes as much: they simply argue that the taking in that case is a public use.
At the same time, I think they are well aware of the interpretive gymnastics required to say that, not only is "public use" a requirement of congress despite the clause not saying so, but we're then going to interpret "use" very narrowly such that anything merely for a public "purpose" is not good enough. They didn't come out and note the textual problem, because unlike Scalia, that's not really their style. If Scalia happened to be on the other side politically, I have no doubt that this would be one of his crusades.
You might think - as the Kelo majority contends - that if I wanted to knock down your house and build a WalMart in its place, that I could simply bribe the local government to exercise its emminent domain power, and that use would be valid...
No, I think bribing public officials is invalid. That would clearly violate my right against deprivation of property without due process of law. If they paid just compensation, though, it wouldn't violate the eminent domain clause any more than it violates the interstate commerce clause.

Interestingly, I've fairly recently learned that the "public use" requirement was in fact born out of a "due process" theory, and was only later trasnfered over to the eminent domain clause. This helps explain why it now makes so little textual sense.

So I think the answer to your question is that the Due Process clause is a much more plausible restriction on Government's power to corruptly take property for a particular crony's private benefit. Or to punish an enemy, for that matter, such as the attempts to take Souter's house. Unfortunately, Conservatives are hostile to the due process clause for other reasons, which I think is why they do not take this approach.
1.20.2006 2:13pm
Chris24601 (mail):
SimonD,

I don't think we're very far apart on methodology. I think that the original meaning must be combined with an assessment of the reference-yielding facts in order to yield constitutional outcomes, and I think that earlier cases are an important resource for help in assessing the reference-yielding facts.

I do think, though, that any theory of interpretation that does not simply say that judges can do whatever they want with the Constitution will have a problem with erroneous precedents. Ronald Dworkin, for instance, wants to read clauses as if they were moral commands, and he has a problem with the precedents that don't do that.

The question of what to do if earlier precedents are "in the ballpark" has to do with questions of constitutional ignorance. If we don't know that the Constitution requires one particular result rather than another--that is, if we can only say with confidence that it requires something within a particular set--then we aren't in any position to use the Constitution to make an assertion of authority. Gary Lawson's Legal Indeterminacy paper has some useful thoughts along these lines on what to do if we're ignorant of what the Constitution requires.
1.20.2006 2:53pm
Marcus1 (mail) (www):
SimonD,
As you aptly demonstrate by your support for Kelo, though, they are not constrained by "the extent of ambiguity in the text"
No, my argument re: "public use" has nothing to do with my belief in a living Constitution. It is a purely textual argument. I do not find the eminent domain clause ambiguous at all. Your attempt to paint this as related to my liberalism is typical.

As to the rest of your argument, it just strikes me as very weak. You essentially claim that my view is undemocratic and gives judges too much power. That hardly amounts to a refutation.

1. We do not live under a purely democratic system. Many checks were deliberately included to limit majoritarian power. The judicial power was designed with this very much in mind.

2. You fail to acknowledge the power of the majority to overturn judges through laws or amendments. Your fear, thus, of judicial tyranny is highly exagerated. The judiciary doesn't send us to war or set our taxes. Its power is only at the very edge of the law, only to the extent majorities are not willing to overturn it.

In sum, I still don't see your case for why a living constitution is invalid. You have a couple of arguments for why it's undesirable, like I have arguments against originalism. As such, your claim of "the one true view," is completely unsupported, and, moreover, is discredited by your attempts to use it as a weapon even where you are advocating the more liberal position.
1.20.2006 3:22pm
SimonD (www):
Marcus,
I'm several posts behind now, so please bear with me as I try to catch up.
I think they are well aware of the interpretive gymnastics required to say that, not only is "public use" a requirement of congress despite the clause not saying so, but we're then going to interpret "use" very narrowly such that anything merely for a public "purpose" is not good enough.
But the clause does say so, and while you say that opponents of Kelo are demanding a "narrow interpretation" of "public use" to exclude "public purpose," that instantly recalls Justice Black's warning in his Griswold dissent that "One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning." I suppose that if it said public purpose, one might adopt a more latitudinarian interpretation, since I suppose it's not unreasonable that encouraging economic development is a public purpose - it most certainly, though, is not a public use.

The due process argument is interesting, although I should say at the outset that I don't think conservatives (still less originalists) "are hostile to the due process clause" - we are hostile to substantive due process, to expansive readings of a criminal process clause to include substantive limitations on government, and a fortiori when the claimed "liberties" are entirely novel. See, e.g., Connecticut v. Doe, 538 U.S. 1, 8-9 (Scalia, concurring). To my reading of the due process clauses, it seems clear that they should be understood to mean that you may not be incarcerated, fined or executed except after the due process of law.

Perhaps by trying to be glib with my implication of coprruption, I let you out of that hypothetical a little too easily. So allow me to rephrase: out of the goodness of their own hearts, can the county take your property and give it to me for a purely private use?
1.20.2006 4:59pm
JunkYardLawDog (mail):
Marcus1 said:

Well, that's obviously not true. A living constitution is still a Constitution; it's simply more flexible. It uses ambiguity to inject a degree of case-by-case and day-by-day reasonableness into Constitutional interpretation. But the extent of the ambiguity is still the limit of its power.


Well, I think it obviously is true. Textualism/Originalism is flexible. Its flexible in the sense that the specific power or right can be applied to new things. 1st amendment and TV is a common example. There is nothing anti-textual or anti-Originalism or requiring of a living constitution to apply the principles of the first amendment to TV, etc. That's flexibility. What you call flexibility is making up out of thin air rules of government policy not enacted by Congress or other legislative process and NOT consented to by the people.

Rules/laws are consented to by the governed ONLY when voted upon by the governed or when voted upon by the citizens through their elected group of proxies. When judges use what you call flexibility and what is really just "making up what they want as they go along", such rules/laws of the land DO NOT DERIVE THEIR POWER FROM THE CONSENT OF THE GOVERNED. Therefore, such rules or laws created by these unelected high priests of law dressed in black robes are extra-constitutional or unconstitutional. Lawyers and judges have no problem understanding or asserting the concept that the co-equal branch of government known as the Congress can take actions or enact laws which are unconstitutional. Likewise they have no problem understanding or aserting the concept that the co-equal branch of government known as the Executive branch can take actions which are unconstitutional. However, never have I seen it discussed or even acknowledged by the more learned members of our profession that the co-equal branch of government known as the Judiciary can take unconstitutional actions, or attempt to fulfill its functions in an unconstitutional manner by issuing rulings/opinions whose holdings and rational are unconstitutional or extraconstitutional if you like. In fact, I'm confident many here will find the mere expression of the thought that the Supreme Court could issue an unconstitutional opinion to be complete heresy.

However, I say that the people of the Supreme Court become no less fallible than the other co-equal branches of government when it comes to taking unconstitutional actions. Putting on those black robes doesn't confer devine infallibility. In fact it is quite clear from looking at many decisions of the Supreme Court where they have overruled prior constitutional precedent with NO intervening change in the language of the constitution that either the first decision was unconstitutional or the overruling decision was unconstitutional or they were BOTH unconstitutional. It could not be any other way.

I'm not confused here about whether an unconstitutional decision of the Supreme Court is going to be enforced through the MIGHT of the federal police power. I am saying that the fact that the Supreme Court can usually get its decisions enforced by federal agents, officers, and the like through the use of deadly or coercive force, should NOT be mistaken for a finding in reality that said action or decision of the Supreme Court was in fact constitutional.

To the extent a Supreme Court holding derives from "flexibility" or as I call it "writing on the blank piece of paper by a 5 out of 9 vote" then the holding is NOT constitutional and IS NOT A RULE OF LAW OR POWER OF THE GOVERNMENT THAT IS DERIVED FROM THE CONSENT OF THE GOVERNED.

So to close, I'll repeat what I wrote in the first message as I think it remains the correct response to your response to me:

Unless and until the consent of the governed is obtained with regard to changes in the rules previously consented to, then the citizens have no moral or civic obligation to follow constitutional rules to which neither they nor any of their ancestors have consented. In such a case these extra-constitutional or unconstitutional rulings of the supreme court are enforced by the might of the federal government and not by the right of the federal government.


Says the "Dog"
1.20.2006 6:08pm
Marcus1 (mail) (www):
>So allow me to rephrase: out of the goodness of their own hearts, can the county take your property and give it to me for a purely private use?<

Still violates due process, I think quite clearly. I mean, although it's not the prettiest argument, the fact is that it HAS to. This is where the Kelo critics are right. Our framers couldn't possibly have intended that my land could simply be given by the government to you. The due process clause, though, is the obvious answer that they ignore.

Let's say the government decides to make me mow your lawn. What does that violate? I'd say the liberty porrtion of the due process clause. The simple decision that you would be better off having me mow your lawn does not constitute due process of law for depriving me of my liberty. Am I right? If so, then likewise, simply deciding that you would be better off with my house does not constitute due process of law for depriving me of my property. That's just taking my sh--, and putting a fancy name on it.

Again, though, if just compensation is paid, then the eminent domain clause isn't violated. These kinds of general cases of people getting screwed over by the government, I think, were intended to be addressed under the due process clause.

>But the [eminent domain] clause does say so...<

Not any more than my sign says you can't play croquet. You may think it's implied, but it certainly does not say so. If you were totally honest, I think you would admit that you are arguing for an implication, not an explicit prohibition.

And this is key in determining whether the phrase should be read broadly or narrowly. Because it's hard to paint strict construction of an implication as deriving from a conservative judicial philosophy. That's just like "strictly construing" the "separation of church and state" or the "right to privacy."
1.20.2006 6:37pm
Marcus1 (mail) (www):
JunkYardLawDog,

>What you call flexibility is making up out of thin air rules of government policy not enacted by Congress or other legislative process and NOT consented to by the people.<

This is extreme hyperbole.

>Rules/laws are consented to by the governed ONLY when voted upon by the governed or when voted upon by the citizens through their elected group of proxies.<

The governed have constructively consented to living under the Constitution. The Constitution does not specify a conservative or a liberal judicial philosophy. I do not believe it was the intent of the framers, either, that 200 years from then people should limit their interpretations strictly to their intent, or the strict "meaning" at that time.

>To the extent a Supreme Court holding derives from "flexibility" or as I call it "writing on the blank piece of paper by a 5 out of 9 vote" then the holding is NOT constitutional and IS NOT A RULE OF LAW OR POWER OF THE GOVERNMENT THAT IS DERIVED FROM THE CONSENT OF THE GOVERNED.<

I think most people, as a general matter, are ok with a judge considering not only what a word meant two hundred years ago, but also what makes sense today in the given case. I think most people understand that judges will incorporate real life judgment along with purely academic and robotic interpretation. I think this has always been the role of the judiciary, and has been understood since the time of our nation's founding. Judging involes judgment, not just robotic deciphering of law. Of course, conservative court bashing has diminished people's acceptance of this role to a degree, but not enough to reverse it.

The Conservative characterization that this means judges simply invent the law from whole cloth is exagerated to the point of ridiculousness. It's the same as saying that because the President breaks a law now and again, that our entire legal system is utterly meaningless. This kind of black and white portrayal is characteristic of conservative thinking, but it's rarely if ever true.
1.20.2006 6:54pm
SimonD (www):
Chris:
The question of what to do if earlier precedents are "in the ballpark" has to do with questions of constitutional ignorance. If we don't know that the Constitution requires one particular result rather than another--that is, if we can only say with confidence that it requires something within a particular set--then we aren't in any position to use the Constitution to make an assertion of authority.
This is essentially the argument I think Lee J. Strang has made; he has a very interesting paper (available through SSRN) about originalism and predecent, and one of the things he talks about is exactly what you're saying, I think, except Strang labels it "underdeterminacy." He argues that:
when the original meaning of the Constitution is determinate, judges will have no discretion and will instead be bound by that meaning. For example, in a case challenging Congress' Commerce Clause authority to regulate shipment across state lines of agricultural products, even if the judge presiding over the case believes that the statute in question is very bad policy, the judge is bound to rule that Congress has the Commerce Clause authority to enact the statute.

However, like all language the original meaning of the Constitution has limits. When, as often occurs in constitutional cases, the Constitution's text and original meaning does not provide sufficient guidance, that is, when a case is underdetermined by the original meaning, the Court's warrant to strike down acts of the elected branches has reached its limit. In the constitutional context, the Court must defer to the legislature's determination—or what, following other scholars, I shall call a constitutional construction — when the original meaning of the text of the Constitution is underdetermined.
Strang, supra, at 21. I am not yet willing to sign on to this theory, for several reasons; I don't entirley agree with some of Strang's underlying premises, and I think that the idea that the courts should defer to Congress in any instance where the Constitution does not clearly establish a command is far, far too broad. Too broad because, ironically enough, I entirely agree with something Marcus wrote: "[m]any checks were deliberately included to limit majoritarian power. The judicial power was designed with this very much in mind;" I will talk about this in more depth when I get to reply to Marcus' post later later. But in any instance, Strang's essay is very good and well worth a read, and does at least try to make a case for something that needs to have a case for it, and I think in a more watered down form (e.g., other factors such as precedent and tradition having been weighed), his idea of underdeterminacy creating a case for deference is probably about right.
1.20.2006 7:22pm
Chris24601 (mail):
SimonD,

Sounds like Strang &Lawson have similar positions. Lawson uses the term "indeterminacy" too. I prefer "ignorance," just because I think the range of permissible understandings of the original meaning will depend on how much historical &fact-finding work we've done. Doing more work can narrow the range of permissible interpretations as we learn more.
1.21.2006 10:03pm
SimonD (www):
I've been unable to get to a computer for the weekend, so I will try to pickup my replies to Marcus this morning. In this post, I will offer comments on this post.

Strangely, I think this post is mainly going to agree with yours. As I suggested in my reply to Chris, I entirely agree with you that we do not live in a pure democracy. The Constitution is an explicitly countermajoritarian device, which is designed to ensure that certain protections are safeguarded even against popular pressure. And I agree that it is the function of the judiciary to protect those rights, even when it is unpopular to do so (for example, I would have joined Justices Scalia and Stevens in Hamdi, not the plurality, and certainly not Justice Thomas), which is why I am uncomfortable with Strang's theory of deference whenver there is Constitutional underdeterminacy.

This is precisely why it doesn't matter if 66% of the country want there to be a Constitutional right to an abortion - we don't live in a democracy, we live in a Constitutional Republic, and if you want to add a Constitutional right (or, for that matter, delete one), there is a mechanism to achieve this. It isn't a majority vote of the nation, and it isn't a majority vote of the Supreme Court.

However, I disagree with your second point, that I "fail to acknowledge the power of the majority to overturn judges through laws or amendments." Once liberated from the text, the power of the judiciary becomes assymetric, precisely for the reasons noted above: when the judicary gets it wrong on Constitutional questions, those very safeguards that protect us against a tyranny of the majority turn into the prison cell of a tyranny of the minority. It is true that, if Congress disagrees with Gonzales v. Oregon, it can pass legislation to moot that decision. But the bar is considerably higher for amending the Constitution; yes, of course a sustained majority can amend the Constitution, but there is a grossly asymetrical nature to a situation where what can be done by five Justices can only be undone by three-quarters of the states in concert with supermajorities of both Houses of Congress (or, as an alternative, the potential suicide pact of a new Constitutional Convention called by two thirds of the states).

The Framers made it difficult to amend the Constitution; the Supreme Court is supposed to be the defender of the Constitution, but to do so necessarily places it in a position to do great harm, and do great harm it has. It is, of course, the age old problem: qui custodes custode. The most controversial decision of our time is Roe, yet in over three decades, neither side has been able to marshall sufficient force to legitimize or repudiate the decision by amending the Constitution, despite the easy bandying of majoritarian claims. If even this decision - still unsettled after so many years - cannot yield an amendment, how can the possibility of reversal by amendment be taken any more seriously as a check on the Supreme Court than impeachment? The system you describe is neither democratic nor constitutional: it is essentially rule by lack of revolution. If the Constitution were easier to amend, the power of a rogue Court might be less of a concern - but then, if the Constitution were easier to amend, perhaps there would be less concern on the part of the Court to stamp their views on it.

In any instance, I agree with you that the Court is supposed to defend the Constitution, from minorities and majorities alike. I suppose I'm confused, then, as to how that's an argument for your position rather than mine.
1.23.2006 10:18am
Marcus1 (mail) (www):
>If even this decision - still unsettled after so many years - cannot yield an amendment, how can the possibility of reversal by amendment be taken any more seriously as a check on the Supreme Court than impeachment?<

But what if Roe is a good thing? The lack of amendment, one would presume, would show that it is a fairly effective reconciliation of constitutional guidelines.

My point is that it's not very often that the Supreme Court overcomes majoritarian will. In the few times that it does, it's generally been a good thing. Thus, the liberal system works. If it didn't, we would see more liberal decisions overturned by amendment (whatever those liberal decisions are...)

Your system, on the other hand, is to require a constitutional amendment for any subtle advance in society. The difficulty of passing an amendment is exactly why that is a bad scheme. Also, it is bad, because it prevents any input at all from the judiciary, which has a generally less political and more insightful perspective.

The fact that most people support Roe shows that the decision itself didn't upset our generally democratic system. In any case, though, I'm not sure there is anything meaningful in calling Roe a liberal decision. And, incidentally, I think conservatives are just as activist as liberals; they simply deny it.

If you'd like to check it out, in relation to the Kelo decision, I put up a post on my blog explaining my position.
1.25.2006 11:26am