Originally it was not Originalism (concluded)

I am not suggesting answers to these various questions about the text of the Second Amendment or that Heller’s outcome was wrong, but rather I am claiming that interpreting the Constitution is not as simple as Alito would have us believe. Alito seems to say, “Just read the words and you can understand the right.” I am suggesting, instead, that we remain skeptical when a judge or anyone else states that the other guy’s method of constitutional interpretation is really a disguise for personal preferences, but his method is pure and neutral and keeps out personal predilections. Heller was not decided, in spite of Alito’s implications, without many, many interpretive choices, and perhaps, just perhaps, those choices allowed for personal preference. And maybe, just maybe, practitioners of originalism and its cousin, textualism, are not as innocently disinterested in the outcomes as they pretend to be. (Jack Rakove in his Pulitzer-Prize winning book, Original Meanings: Politics and Ideas in the Making of the Constitution, after giving reasons to doubt originalism as a viable theory of constitutional interpretation states, “On the other hand, I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcomes I favor—and that may be as good a clue to the appeal of originalism as any other.”)

The Constitution does not allow for a merely mechanistic method of interpretation that insures judicial neutrality and guarantees that personal values of a judge will not enter into judicial decisions. The Constitution itself makes it impossible. That document contains broad or vague words, terms, or phrases, and not all reasonable people will agree on their meaning when applied to a particular circumstance. For example, Congress has the constitutional power “to regulate commerce . . . among the several states . . . “ (what is often called the Interstate Commerce Clause). Under this provision, can Congress regulate commerce between just two states, or does “among” require the involvement of multiple states? Does the term “commerce” require a commercial transaction? For example, if I take a pleasure trip from Brooklyn through New Jersey to Pennsylvania, has there been “commerce” that Congress can regulate? (Did I really just use “pleasure” and “New Jersey” in the same sentence?) Relying on the Interstate Commerce Clause, Congress prohibits the growing of marijuana, but does the power to “regulate” mean the power to “prohibit”? If I grow wheat and consume it myself, I will no doubt buy less grain from the national market for wheat. Can Congress regulate my personal garden because my wheat cultivation affects interstate commerce? The Supreme Court has addressed questions like these many times, and the answers could not have come from a judicial automaton. They could come only from justices exercising judgments, and those judgments may be influenced by personal values.

The Constitution is filled with terms that are even more open-ended than the Commerce Clause. Article I lists specific congressional powers and then goes on to state that Congress has the power to enact laws that are “necessary and proper” for carrying out the enumerated powers. Article II states that the “executive power” is vested in the President. Not all will agree in a particular circumstance as to what is “necessary and proper” or what is an “executive power.” What does “due process” or “equal protection” mean.  And so on; and so on; and so on. The Constitution cannot just be read and mechanistically applied. Constitutional decisions require contemporary interpretations of the words and phrases written centuries ago, and in spite of what some conservatives say, that will always permit personal values to affect the outcome. We can hope that a judge will select a reasonable method for interpreting the Constitution, but no method, including trying to fix its meaning in the amber of 1787 or some other time, will eliminate the opportunity for personal values to affect the outcome. (The distinguished and learned conservative judge Richard Posner has stated, “It is questionable whether there has been anyone in the history of law who could really divorce his jurisprudential views from his personal and political ones. . . . It’s hard to get excited about judicial conduct that violates principles unless it is bringing about results you don’t like.”)

It is noteworthy, however, that one of the earliest Supreme Court pronouncements about how the charter should be interpreted did not proclaim it as a document with an unchanging meaning. Having been present at its creation, Chief Justice John Marshall knew as well as anyone how the framers and adopters wanted the Constitution interpreted. When the Constitution was proposed, he advocated its adoption, and as a delegate to the Virginia convention, he voted in favor of it. When he was on the Supreme Court, Marshall gave his view on how the Constitution should be interpreted. He said it was a document “intended to endure for ages to come, and, consequently, to be adapted to the crises of human affairs.” (Emphasis added.) Constitutional provisions do limit constitutional interpretations, but Marshall recognized that the document has many generalities and interstices that must be refined and filled in by judges. Constitutional meaning was not rigidly fixed in 1787. Rather, that meaning needs to adapt and evolve in light of “the crises of human affairs” if that document is to endure. This really addresses the most fundamental question about our fundamental charter. Is our Constitution only backward looking giving true sovereignty over us to the people of 1787 or did the framers of the Constitution, in the words of the recently retired Justice Anthony Kennedy at his confirmation hearing, “make a covenant with the future”? Are the framers to be admired because they thought they had the answers to whatever might arise, or should they be admired because they were trying to build a nation that would endure for generations?

The originators did not tell us how to interpret the Constitution. Each generation must decide for itself what method or methods are to be used. This generation of conservatives has concocted a method that supposedly gives our fundamental law a meaning fixed from generations ago and supposedly removes a judge’s values from constitutional interpretation. This method is not constitutionally required, and its goals cannot be met. When a judge tells us that he acts merely as an umpire having removed his values from his decisions, he is either delusionally naïve or disingenuous.

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Originally it was not Originalism (continued)

Some justices now seem to have morphed originalism even further to lessen a reliance on the old dictionaries. They simply pronounce that the constitutional text controls without ever referring to the original meaning of the words. This approach is evident in Supreme Court Justice Samuel Alito’s opening address to the Federalist Society convention a year or so ago. He paid tribute to the Supreme Court’s 2008 decision of District of Columbia v. Heller guaranteeing an individual’s right to own guns. Alito criticized Justice Breyer’s dissent in that case. Breyer had proposed a balancing test that would weigh self-defense against public safety. Alito stated that if a judge uses such a balancing test, the balance will almost always come to rest where the judge wants it to. Instead, Alito told this conservative group, “Heller, I am sure you know, holds that the Second Amendment actually means what it says.” Breyer was allowing personal values to control the constitutional right. Alito, certain that he knew the “proper” interpretation of the text, claims an unbiased conclusion.

This is not the place to trace the history of the Second Amendment’s interpretation or what it now does or does not mean. Instead, I am struck by the implications of Alito’s statement. He implies that those who would allow some gun control are using Breyer’s balancing test, and that means that they are relying on their own preferences rather than adhering to the Constitution. The conservative majority in Heller, Alito maintains, was not following individual preferences but was simply reading and enforcing the words as written. We in the majority are constitutionally pure (he implies); the dissent is not. (Thought experiment: For how many of the justices in the majority did the outcome in Heller fail to coincide with their individual preferences?)

But how should we interpret the words as written? The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” I don’t mean to delve into those opening “militia” words about which much has already been written. (Reports state that that first clause is not reproduced in the lobby of the NRA headquarters, only the last part of the provision. Why is that?) Instead, I ask whether there is one, single unambiguous meaning for “the right of the people to keep and bear arms, shall not be infringed”? (I will also ignore the intriguing question of why that last comma exists.)

For Alito the Second Amendment words say unambiguously that individuals have the right to own guns. Period. Full stop. The end. The provision, however, does not expressly grant rights to individuals as Heller held it did. It states that it is a “right of the people.” Wouldn’t the Amendment more clearly have granted an individual right if it had said, “No one’s right to keep and bear arms, shall be infringed”? (Okay, we’ll keep the mysterious comma.) Or perhaps it would have been even more clear if the Second Amendment read: “Every person has the right to own and use firearms.” But it does not make these more unambiguous assertions. Instead, on its face, the provision grants a collective right, not an individual one.

The text also does not grant a right to “own.” Instead it says there is a right to “keep and bear.” Does “keep” mean the same as “own”? Have you never kept something without owning it? And you can keep an object in many places. I might keep a boat at the marina. I keep my tools at work. If a law required me to remove my Winchester or Glock from my home and store it at an armory, wouldn’t I be keeping a gun at the armory?

The Second Amendment right, however, is not just to “keep” guns; it is to keep and bear them. Why the conjunction? The right is not just to keep but to keep and somehow use. “Use,” however, is not the word in the text. Instead, it specifically reads “bear.” That could imply that only those arms are protected when they are “borne,” which seems a narrower word than “use.” And what does it mean to “bear arms”? What did it mean then? What does it mean now? Do we “bear arms” outside the military? When I go deer hunting, do I “bear arms”? (If so, don’t hunting seasons and other hunting restrictions infringe on my right to keep and bear arms?) When I grab the revolver because I think I hear a burglar, do I “bear arms”? Did Aaron Burr and Alexander Hamilton “bear arms” in their famous duel? If I drunkenly point a pistol at my spouse during an argument, am I “bearing arms”? (That last one was a hypothetical; the spouse and I never argue.)

Furthermore, the Amendment does not directly refer to guns. It reads “arms.” The Supreme Court shrugged off an originalist notion that “arms” must be limited to eighteenth century weapons. In this instance, Heller allowed the word “arms” something other than an originalist meaning, but then how are we to decide what arms are now included in the protection? Perhaps the 1828 Webster’s dictionary would provide an approximation of what is meant. If so, “arms” are defined there as “Weapons of offense, or armor for defense and protection of the body.” If a rifle (clearly a weapon of offense) is protected, why not a machine gun, a flamethrower, a cannon, a killer drone, a switchblade, and so on? Aren’t they all “weapons of offense”? Does the text really make it simple to decide what kinds of firepower and killing machines are protected?

Finally, the Second Amendment on its face does not create a right. Instead, it indicates that a right is not to be violated. This, of course, only raises the question, “What was that right?” It is not spelled out in the Constitution, only that the right “to keep and bear arms” shall not be infringed. The scope of that right is not actually in the Constitution’s text, and we must have to look outside the document to find it.

(Concluded August 29)

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Originally it was not Originalism (continued)

Original public meaning at a superficial glance is a more promising method of constitutional interpretation than original intention and original understanding. It would have the Supreme Court use the original meaning of the words and phrases in the Constitution to interpret it. This interpretive method has judges jiggling off to ancient dictionaries to find that original meaning, but problems still appear. Perhaps Samuel Johnson’s dictionary, published in 1755, was the most well-known one in the founding era, but Johnson’s definitions were often as prescriptive as descriptive. That is, in the opinionated Johnson’s opinion, he listed what a word should mean, not necessarily what it did mean to all or even most English speakers of the day. And, of course, what really should matter for the United States Constitution is what words meant in America, not England. This is made more difficult because the first relatively complete American dictionary of English was not published until 1828, some four decades after the Constitution was adopted.

Other difficulties with the ancient dictionary approach have also emerged. The Constitution includes the word “emoluments,” but what does that mean? In a lawsuit involving that seldom-considered part of the Constitution, the Justice Department said that it applies to benefits to the President from services rendered by the President in his official capacity. Georgetown Law Professor John Mikhail along with student Genevieve Bentz examined forty regular dictionaries and ten legal dictionaries published from 1604 to 1806 and concluded that 92% of the dictionaries had a broader definition of “emoluments” than what the Justice Department contended. But the remaining ones did have the definition that favored the president. How then should we determine the original meaning of “emoluments”? Do we say it was what the majority of the dictionaries say? Would we come to that same conclusion if the split had been 60-40? Are seventeenth century dictionaries really relevant? And language is always in flux. Was that true for “emoluments”? In a summary of Mikhail’s research, no dictionaries define the word as a benefit, profit, or advantage without linking it to an office, as the Justice Department sought to do, until 1759. But in that dictionary and ones published in 1761 and 1774, the definitions specifically say an “emolument” is a “profit from an office or employ.” Around the time of the Constitution, the meaning of the word might have been narrowing. Indeed, 20% of the dictionaries published between 1759 and 1787 when the Constitution was written had the definition of “emolument” Trump’s Justice Department favors. Can we really be positive that the office-linked definition was not the one being used in the Constitution? It turns out that even using a comprehensive set of dictionaries does not eliminate choices, and when choices must be made, personal values, predilections, and experiences may influence a judge’s selection.

(In a constitutional area where I have researched and published, Justice Antonin Scalia quoted Noah Webster’s dictionary for a definition of “witness” that supported the conclusion he reached [sought?]. That was only one of Webster’s definitions for that word, and some of the other definitions seemed to require a different result from Scalia’s. Scalia did not address the alternative definitions or explain why he had plucked the definition he had. But, while perhaps pretending otherwise, he had made a choice.)

(Continued August 27)

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Originally it was not Originalism

With the United States Senate about to consider a nominee to the Supreme Court, we can expect to hear about “originalism,” a philosophy or method for interpreting the Constitution. Conservatives often assert it is the only way to properly interpret the Constitution. The originalism label makes it seem as if this interpretive method was the one our founding fathers mandated. Not so. The Constitution itself does not say how it should be applied to any particular dispute, and those who framed our fundamental charter in the Constitutional Convention and those who adopted it in the states were silent about the “proper” method, if any, for later generations’ constitutional interpretations.

Originalism, instead of being an eighteenth-century doctrine, only emerged in the 1980s when President Ronald Reagan’s Attorney General Edwin Meese started advocating the constitutional jurisprudence of “original intention.” He asserted that a constitutional provision should be interpreted today to reflect what the drafters and adopters of the Constitution intended for it when the charter was adopted. This interpretive method, according to its proponents, gives a fixed meaning to the Constitution, thereby preventing “activist” judges from breathing their changeable, subjective predilections and values into our fundamental law. They believe that judging can and should be essentially a mechanical affair. The judge seeks out the original intention of the constitutional provision at issue, applies that intention to the case’s facts, and an inevitable result will be apparent. Only by applying the constitutional meaning that had been unbendingly established in the eighteenth century, the cant goes, can judges remain neutral.

The jurisprudence of original intention, however, never passed its beta test. Whose intention or purpose? That was left unstated. Perhaps the original originalist meant those who drafted the document, but problems quickly appeared with that idea. The historical record of the drafters’ intention is sketchy. James Madison kept notes of discussions at the Constitutional Convention, but we have no verbatim transcript. Madison could only record a fraction of what was said, and we don’t know what he left out. Furthermore, his notes were not published until decades after the convention and by then many of the framers had died. Others who might have corrected or added to what Madison wrote could not do so. And the framers’ thoughts had often been affected by readings of enlightenment thinkers—Locke, Hume, Montesquieu, and others. How should this affect any conclusions about original intentions?

Besides these difficulties another fundamental issue arose. The Constitution was written in the Constitutional Convention, but it was not adopted there. The draft was sent to state conventions where upwards of two thousand Americans considered and adopted it. We know little about the discussions in most of these conventions other than, usually, the final votes. Even if we would find more records of the state conventions, however, they would likely say little about specific constitutional provisions. The states were only allowed to accept the Constitution as written or to reject it as written, although many states did suggest amendments which led to the Bill of Rights Discussions of many specific provisions that might now be under dispute were unlikely under these terms. If we are to look at original intentions surely it is the intentions of those who adopted it that should count the most, but finding an “intention” out of the collective will of thousands is, to put it politely, a fiction.

With these shortcomings apparent, originalism morphed. Of course, that it morphed says something about the assertion that this is the only proper way to interpret the Constitution, but now the originalism advocates dogmatically asserted we needed to examine not the original intent but the original meaning (sometimes amended to the original public meaning) or the original understanding of the fundamental charter. Original understanding seemingly refers to the impressions, views, and interpretations of the original readers of the Constitution who were part of the adoption process, including not just those who drafted or voted on the document, but also those who wrote about or advocated for rejection or ratification of it. Seeking a common understanding from this broad group is even harder than finding an original intention out of the delegates to the state conventions.

(Continued August 24)

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Originally It Was Not Originalism

In my post last week, I suggested that we be skeptical of those who proclaim a method of interpreting the Constitution that insures judicial neutrality and guarantees that personal values of a judge will not enter into judicial decisions. This cannot be done. The Constitution itself makes it impossible. That document often uses broad or vague words, terms, or phrases, and not all reasonable people will agree on their meaning when applied to a particular circumstance. For example, Congress has the constitutional power “to regulate commerce . . . among the several states . . . (what is often called the Interstate Commerce Clause). Under this provision, can Congress regulate commerce between just two states, or does “among” require the involvement of multiple states? Does the term “commerce” require a commercial transaction? For example, if I take a pleasure trip from Brooklyn through New Jersey to Pennsylvania, has there been “commerce” that Congress can regulate? (Did I really just use “pleasure” and “New Jersey” is the same sentence?) Relying on the Interstate Commerce Clause, Congress prohibits the growing of marijuana, but does the power to “regulate” mean the power to “prohibit”? If I grow wheat and consume it myself, I will no doubt buy less grain from the national market for wheat. Can Congress regulate my personal garden because my wheat cultivation affects interstate commerce? The Supreme Court has addressed questions like these many times, and the answers could not have come from a judicial automaton. They could come only from justices exercising judgments, and those judgments may be influenced by personal values.

The Constitution is filled with terms that are even more open-ended than the Commerce Clause. Article I enumerates congressional powers and then goes on to state that Congress has the power to enact laws that are “necessary and proper” for carrying out the enumerated powers. Article II states that the “executive power” is vested in the President. Not all will agree in a particular circumstances as to what is “necessary and proper” or what is an “executive power.” Today we might ask whether “emolument” is a term so clear that we can’t expect different interpretations of it. And so on; and so on; and so on. The Constitution cannot just be read and applied. Constitutional decisions require contemporary interpretations of the words and phrases, and in spite of what some conservatives say, that will always permit personal values to affect the outcome.

We can hope that a judge will select a reasonable method for interpreting the Constitution, but no method will eliminate the opportunity for personal values to affect the outcome. Moreover, no method is mandated by the Constitution itself. That document is silent on how it should be interpreted. Those who framed it in the constitutional convention and those who adopted it in the states were also silent about the “proper” method, if any, for later generations’ constitutional interpretations.

It is noteworthy, however, that one of the earliest Supreme Court pronouncements about how the charter should be interpreted did not proclaim it as a document with a meaning fixed in the eighteenth century. Having been present at its creation, Chief Justice John Marshall knew as well as anyone how the framers and adopters wanted the Constitution interpreted.  When the Constitution was proposed, he advocated its adoption, and as a delegate to the Virginia convention, he voted in favor of it. When he was on the Supreme Court, Marshall gave his view on how the Constitution should be interpreted. He said it was a document “intended to endure for ages to come, and, consequently, to be adapted to the crises of human affairs.” (Emphasis added.) Constitutional provisions do limit constitutional interpretations, but Marshall recognized that the document has many generalities and interstices that must be refined and filled in by judges. Constitutional meaning was not rigidly fixed in 1787. Rather, that meaning needs to adapt and evolve in light of “the crises of human affairs” if that document is to endure.

The originators did not tell us how to interpret the Constitution. Each generation must decide for itself what method or methods are to be used. This generation of conservatives has concocted a method that supposedly gives our fundamental law a meaning fixed from generations ago and removes a judge’s values from constitutional interpretation. This method is not constitutionally required, and its goals cannot be met. When a judge tells us that he acts merely as an umpire having removed his values from his decisions, he is either delusionally naïve or disingenuous.

Originalism to Textualism

 

Thirty or forty years ago conservatives started maintaining that “originalism” was the only way to properly interpret the Constitution. This meant that a constitutional provision should be interpreted today to reflect what the drafters and adopters of the Constitution intended when the charter was adopted. This interpretive method, according to its proponents, gave a fixed meaning to the Constitution, thereby preventing “activist” judges from breathing their changeable, subjective predilections and values into our fundamental law. Only by applying the constitutional meaning that had been unbendingly established in the eighteenth century, the cant went, could judges remain neutral.

Originalism, however, never passed its beta test. Its practitioners quickly realized that uncovering one single intent from the incomplete historical record of the Constitution’s drafting and adoption was impossible. Worse, the ability to ascribe a single intent to the myriad framers and the many more adopters was mere fiction.

With these shortcomings apparent, originalism morphed. Now it was not original intent but the original meaning of the Constitution’s words that should control a constitutional decision’s outcome. This set a jingle of judges jiggling off to ancient dictionaries. They found, however, that the lexicographic business at the end of the eighteenth century was, to say the least, a bit sketchy. Samuel Johnson had published his dictionary in 1755, but his definitions were as much prescriptive as descriptive. That is, in the opinionated Johnson’s opinion, he listed what a word should mean, not necessarily what it did mean to all or even most English speakers of the day. And, of course, what really should matter for the United States Constitution is what words meant in America, not England. This is made more difficult because the first relatively complete American dictionary of English was not published until 1828, some four decades after the Constitution was adopted.

So, another morphing was needed. Conservative judges now would simply pronounce that the constitutional text controls without ever referring to the original meaning of the words. This approach is evident in Supreme Court Justice Samuel Alito’s opening address to the Federalist Society convention last fall. He paid tribute to the Supreme Court’s 2008 decision of District of Columbia v. Heller guaranteeing an individual’s right to own guns. Alito criticized Justice Breyer’s dissent in that case. Breyer had proposed a balancing test that would weigh self-defense against public safety. Alito stated that if a judge uses such a balancing test, the balance will almost always come to rest where the judge wants it to. Instead, Alito told this conservative group, “Heller, I am sure you know, holds that the Second Amendment actually means what it says.”

This is not the place to trace the history of the Second Amendment’s interpretation or what it now does or does not mean. Instead, I am struck by the implications of Alito’s statement. In essence he says that those who would allow some gun control are using Breyer’s balancing test, and that means that they are relying on their own preferences rather than adhering to the Constitution. The conservative majority in Heller, Alito maintains, was not following individual preferences but was simply reading and enforcing the words as written. We in the majority are Constitutionally pure (he implies); the dissent is not. (Thought experiment: For how many of the justices in the majority did the outcome in Heller fail to coincide with their individual preferences?)

But how should we interpret the words as written? The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” I don’t mean to delve into those opening “militia” words about which much has already been written. (Reports state that that first clause is not reproduced in the lobby of the NRA headquarters, only the last part of the provision. Why is that?) Instead, I ask whether there is one, single unambiguous meaning for “the right of the people to keep and bear arms, shall not be infringed”? (I will also ignore the intriguing question of why that last comma exists.)

For Alito the Second Amendment words say unambiguously that individuals have the right to own guns. Period. Full stop. The end. First, nowhere does the provision expressly grant rights to individuals as Heller held it did. It states that it is a “right of the people.” Wouldn’t the Amendment more clearly have granted an individual right if it had said, “No one’s right to keep and bear arms, shall be infringed”? (Okay, we’ll keep the mysterious comma.) On its face, then, the provision grants a collective right, not an individual one.

Neither does the text state the right to “own.” Instead it says “keep and bear.” Does “keep” mean the same as “own”? Have you never kept something without owning it? And you can keep an object in many places. I keep my boat at the marina. I keep my tools at work. If a law required me to remove my Winchester or Glock from my home and store it at an armory, wouldn’t I be keeping a gun at the armory?

The Second Amendment right, however, is not just to “keep” guns; it is to keep and bear them. Why the conjunction? The right is not just to keep but to keep and somehow use. “Use,” however, is not the word in the text. Instead, it specifically reads “bear.” That could imply that only those arms are protected when they are borne. And what does it mean to “bear arms”? What did it mean then? What does it mean now? Do we “bear arms” outside the military? When I go deer hunting, do I “bear arms”? (If so, don’t hunting seasons and other hunting restrictions infringe on my right to keep and bear arms?) When I grab the revolver because I think I hear a burglar, do I “bear arms”? Did Aaron Burr and Alexander Hamilton “bear arms” in their famous duel? When I drunkenly point a pistol at my spouse during an argument, am I “bearing arms”? (That last one was a hypothetical; the wife and I never argue.)

Furthermore, the Amendment does not directly refer to guns. It reads “arms.” The Supreme Court shrugged off an originalist notion that “arms” must be limited to eighteenth century weapons. In this instance, Heller allowed the word “arms” something other than an originalist meaning, but then how are we to decide what arms are now included in the protection? Perhaps the 1828 Webster’s dictionary would provide an approximation of what is meant. If so, “arms” are defined there as “Weapons of offense, or armor for defense and protection of the body.” If a rifle (clearly a weapon of offense) is protected, why not a machine gun, a flamethrower, a cannon, a killer drone, a switchblade, and so on? Aren’t they all “weapons of offense”? Does the text really make it simple to decide what kinds of firepower and killing machines are protected?

Finally, the Second Amendment on its face does not create a right. Instead, it indicates that a particular right is not to be violated. This, of course, only raises the question, “What was that right?” It is not spelled out in the Constitution. We have to look outside that document to find it.

I am not suggesting answers to these various questions nor that Heller’s outcome was wrong (well, maybe, but I am warning that interpreting the Constitution is not as simple as Alito would have us believe. Alito seems to say, “Just read the words and you can understand the right.” I am suggesting, instead, that we remain skeptical when a judge or anyone else states that the other guy’s method of constitutional interpretation is really just a disguise for personal preferencs, but his method is pure and neutral and keeps out personal preferences. Heller was not decided, in spite of Alito’s implications, without many, many interpretive choices, and perhaps, just perhaps, those choices allowed for personal preference. And maybe, just maybe, practitioners of originalism and its cousin, textualism, are not as innocently disinterested in the outcomes as they pretend to be.

Principles and Partisanship

 

When Congress abandons legislating, power flows to the president, upsetting the separation of powers the founders sought to constitutionalize. Kaiser notes, “The preeminence of presidents had been a widely accepted proposition for half a century, despite the founders’ clear expectation that Congress would be the most influential branch of government.” We now expect that the president will set the agenda, legislative and otherwise, and the executive branch, not Congress, primarily drafts the legislation.

This accretion of presidential power has occurred no matter who occupies the White House, but this shift has also been pushed by a brand of conservativism. These ideologues speak of the “unitary executive.” On one level this is a constitutional truism. Our constitution does vest the executive power in a president, not in a group.  Section 1 of Article II of the Constitution states, “The executive Power shall be vested in a President of the United States of America.” But when these conservatives support the “unitary executive” they promote their theory that presidential power is expansive, perhaps unlimited, when it comes to national security and that Congress cannot interfere with what these conservatives consider to be executive power. This is not the place to explore these concepts and their apparent contradiction with constitutional originalism except to note that the president, who now has powers never dreamed of by the founders of our country, should have even more under the “unitary executive” theory.

Power has also flowed from Congress to the president because Congress has expressly ceded power to the president. An example came after 9/11 when Congress authorized the president to use force against anyone person or entity the president “determines planned, authorized, committed, or aided” the terrorist attacks. The president was granted the power to take warlike actions if the president found certain facts to be true—in this case that a country, organization, or a person was involved in 9/11. Congress placed no restriction on this presidential factfinding and provided for no review of the decision. Congress washed its hands of determining who or what is our enemy and left it to the president to tell us who we will try to kill and subvert. Instead of checks and balances, instead of separation of powers, Congress decided to honor Ricky Nelson: “I will follow you/Follow you wherever you may go. . . .”

We see a similar pattern in one of the significant present controversies—the setting of tariffs. Tariffs have been a recurrent issue in this country’s history, but these were congressional battles because the Constitution gives Congress the authority, and no other body, the power to set tariffs. Section 8 of Article I states, “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises. . . .”

However, today we have the president unilaterally determining the existence and level of tariffs. This is because Congress passed a law that grants the president tariff-setting power when it is necessary for “national security.” Congress neither told the president how to determine when the national security was at stake nor set up a review mechanism for that determination. The president apparently was granted total discretion. Congress may have assumed that a president would only exercise this power in good faith, but it did nothing to insure good faith. Instead, simply by invoking national security, the president can take over the legislative tariff authority. If, as apparently was determined by the president, Canadian pine boards and two by fours are a national security concern, then anything that we might levy a tariff on must be a national security issue. Congress may have thought that it made a limited grant of power to the president by including the national security limitation, but in fact, the way President Trump has used the authority, Congress has ceded its legislative power over tariffs to the president. In essence, Congress amended the Constitution with the act.

The Constitution gives Congress the power of the purse. Section 9 of Article I states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . .” The border wall dispute raises the issue whether Congress has ceded this fundamental power to the president, too.

(concluded April 1)

Borked! Really? (Concluded)

To many, Bork had adopted positions in order to be noticed by the right wing with the goal of being nominated for the Supreme Court. His ambition had long been apparent. A Yale Law School skit well before his nomination said, “Bork would do anything to get on the Court.” As a judge on the Court of Appeals, he gave many speeches to right wing groups leading some to conclude that he was trying to curry favor with the Reagan administration. A speech at Carleton College delighted a brand of conservatives when he said that egalitarianism rejects hierarchies. Such rejection of hierarchy lead to moral relativism and denies the right of society to impose moral standards (unless, of course, those standards include rights for minorities, women, and people engaging in sex). Such moral relativism, Bork maintained, leads to business regulations to redistribute wealth. Instead, Bork said, inequality is, and should be, the natural condition.

The conservative University of Chicago Law School professor Philip Kurland, my teacher who had a deep intellectual influence on me, said what many believed: Bork adopted views that pleased the right to promote himself. Bork certainly led conservatives to believe that he was ready to overturn many despised Court decisions despised by the right. A few months before his nomination he had said that an originalist judge should have no trouble in overruling non-originalist decisions because such precedent “has no legitimacy.” A few years earlier he had said, “I don’t think precedent is all that important.” Again, however, as with other views that now seemed to impede his path to the Supreme Court, he changed. At his confirmation hearing he said that “great respect” must be given to precedent.

Bork’s positions and their changes led many—I am included in this—to believe he was unprincipled. Bork had attracted the attention of conservatives, and had secured his nomination, by criticizing Supreme Court decisions that, he proclaimed, needed to be overturned by a Court that based its decisions on original intent, the only valid method of constitutional interpretation. But at the confirmation hearing, Bork again and again said that many of those decisions were now acceptable as firm precedent, or they now represented his views, or they could be reached by different reasoning. As Senator Patrick Leahy satirically said, Bork often had a “confirmation conversion.”

Another senator asked Bork why he wanted to be on the Supreme Court. Bork replied that he hoped that he could contribute to our constitutional governance, but he also said that he enjoyed the courtroom and the “give and take and the intellectual effort involved.” He continued that “the Supreme Court has the most interesting cases and issues, and I think it would be an intellectual feast just to be there. . . .” Ethan Bronner comments: “Bork’s ‘intellectual feast’ line would live in infamy. . . . The bearded egghead from Yale just wanted to play with ideas. He didn’t understand that beyond those elegant intellectual constructs, the lives of real people hung in the balance.”

A Supreme Court justice should have more than an intellect. A justice should understand society and history, not just constitutional decisions. A justice should have empathy and not just bloodless legal smarts. Time and again in the confirmation process—when he discussed his civil rights, privacy, and free speech positions—he indicated abstract intellectual views that were divorced from the impact his positions would have on everyday Americans.

Bork’s confirmation process brought out things that were unfair, but it also brought out an extensive examination of his views that were relevant in determining whether he should be on the Supreme Court. Bronner summarizes: “Bork answered questions for thirty hours over five days. Inside the hearing room there was posturing, but there was also real intellectual give and take. Bork had the opportunity to lay out his constitutional vision. The dispute over Bork can be summed up as a substantive debate with some slander.”

Rereading Bronner’s Battle for Justice again, I concluded, again, that Bork was not borked. Instead I was reminded of what William Blake said: “The fox condemns the trap, not himself.”

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Borked! Really? (continued)

Bork’s civil rights stances concerned many during his 1987 confirmation process. He had not challenged Brown v. Board of Education, but when Congress considered the Civil Rights Act of 1964, Bork wrote a magazine article opining that while segregation was morally wrong, we should not have laws enforcing morality. He stated, “The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. This is itself a principle of unsurpassed ugliness.” He used examples of barbers and chiropodists as those who should not be forced by legislation to serve blacks. As Bronner states, “those were codes at the time for the feelings of racists who did not want to have to touch blacks.” Labeling the desegregation of hotels, restaurants, gas stations, grocery stores, and other places open to the public as a principle of unsurpassed ugliness haunted him in the confirmation process.

At the Senate hearings, he said that while he had changed his mind about the Civil Rights Act even earlier, he had announced this change in 1973 at his confirmation hearing for Solicitor General. He said that his original stance was fueled by his concern over the coercion of individuals but had no good answers when asked if he had ever thought that segregation coerced black individuals. It was noticed that he publicly stated his changed mind only when his old views might have stood in the way of getting a position he sought.

Doubts about his sincerity and his civil rights views deepened in an exchange with Senator Arlen Specter at the hearing. Brown v. Board of Education was based on the Equal Protection clause, which applies to the states but not to the District of Columbia. The Supreme Court, shortly after Brown, used due process to hold that segregated schools in the nation’s capital were unconstitutional. When pressed by Specter, Bork said that he could not think of a rationale for Bolling v. Sharpe, the D.C. desegregation decision. At a break that occurred shortly thereafter, Bork’s advisers cautioned that he could not let his answer stand, and when the hearings resumed, he announced although he did not have a rationale for the decision, that “does not mean that I would ever dream of overruling Bolling v. Sharpe.” A calculated change of heart? It looked that way.

To many his civil rights stances seemed as to be abstract positions divorced from the harsh realities of America and its history. Bork’s views of constitutional privacy evoked similar reactions. In a 1971 law review article, Bork denominated himself a strict constructionist and said that only liberties explicitly protected in the Constitution could have constitutional protection. If the Constitution does not address a value, it must be left to the federal and state legislatures. He went on to attack Griswold v. Connecticut, a 1965 Supreme Court decision. Connecticut law forbade the use of contraceptives. That law had not just forbidden them for unmarried couples. No one could use them. It was a crime for a married couple to slip on or slip in a condom or diaphragm. The Supreme Court held this law unconstitutional, and many besides Bork found its reasoning troubling. The Court relied on a right to privacy that is not explicitly stated in the Constitution.

Bork’s criticisms of Griswold, however, went beyond what others had said. In what was an awkward analogy (to put it generously), he found identical a couple’s desire to use banned contraceptives and a company’s wish to defy a smoke pollution law. He wrote, “There is no principled way to decide that one man’s gratification is more worthy than another.” He went on to mock the Fourteenth Amendment’s Equal Protection clause by stating that the Court had created the “Equal Gratification” clause. (His analogy was remarkably bad. When a company pollutes, others must deal with the dirt and health effects of what is spewed into the air. Pollution is not a private affair. There are not similar external consequences when I hurriedly pull on a ribbed-for-pleasure Trojan.)

Bork’s view on privacy also appeared inconsistent with some of his other beliefs. Protected liberty, Bork maintained, was limited to what was enunciated in the Constitution, and that category could not be constitutionally expanded. He felt that individual liberties impeded the liberty of the majority. If I have a constitutional right to read pornography, the right of the majority to determine the community it wants is denied. But, of course, just as the Constitution does not explicitly give me a right to dirty movies, it does not explicitly give a right to the majority to ban them. Either right is an expansion from what is in the Constitution. Why one expansion and not the other? Bork was unclear of his choice of one over the other.

Bork was also asked about another inconsistency. The Constitution’s framers sought an executive with limited powers. Bork, however, claimed that the executive power was not static but was meant to evolve. Certainly, the Constitution does not explicitly grant evolutionary powers to the executive. So, of course, Bork was asked if executive power was not static and could evolve, why can’t liberty and other parts of the Constitution also evolve? Bork had no cogent answer. For many, Bork’s determination of what could grow and evolve was not based on any real constitutional principle. Instead, it was driven by a slightly disguised authoritarian agenda.

Bork’s privacy analyses took on some rather ridiculous solutions. If the community outlawed contraceptives, Bork maintained, the objector could move to another state as if this were as easy as going to the corner drugstore to get a cigar. When the Ku Klux Klan controlled Oregon in the early twentieth century (do schools in Eugene and Portland teach this history?), the state prohibited private education because it did not want Catholic schools. Moreover, due to differing prejudices, states had prohibited the teaching of certain foreign languages. The Supreme Court struck down these laws using a privacy analysis. For Bork, however, all those Oregonians who wanted a parochial education should have left the state and Nebraskans could move to get German classes.

But, again, Bork waffled. Although he had frequently attacked Griswold in uncertain terms, in the Senate hearing he became mealy-mouthed. He said that while the right-to-privacy rationale of Griswold failed, perhaps there was a more constitutional way to reach its result. He had never before suggested that.

Bork’s free speech views may have gotten even more attention than his civil rights and privacy positions. He had contended that only political speech was protected by the First Amendment. Artistic or personal speech could be regulated. This standard brought on many questions. For example, it is often hard to determine what is political speech. Was Upton Sinclair’s novel The Jungle about the meat industry political? If the cattle industry in Texas had controlled the legislature could that state have validly banned the book? And if nonpolitical speech is not protected, art books containing photographs of Michelangelo’s David could be banned if they offended officials’ sensibilities.

Furthermore, Bork maintained that the First Amendment did not protect all political speech. Speech advocating the government’s overthrow or advocating the violation any law could be suppressed. Bork was asked: Doesn’t this mean that Dr. Martin Luther King’s advocacy of violating segregation laws could be suppressed or even made criminal? Bork’s answer, according to his previously stated opinion, should have been “yes,” but again there was waffling. He now said that King’s speech was protected because King was testing the constitutionality of the segregation laws and because those laws were later found to be unconstitutional. This “new” position meant that King’s urgings would get First Amendment protection if they were not meant to provoke a constitutional test but not if were only aimed at getting a legislature to change the laws. And as Senator Patrick Leahy pointed out, Bork’s new position failed as a sensible legal standard—how could a person know in advance whether speech was protected if it took a later finding of a law’s unconstitutionality for protection?

Bork changed his position at the confirmation hearing on equal protection, too. Before his confirmation hearing, he had maintained that the original intent of the Equal Protection clause meant it only applied to race. It definitely did not apply to women, but now he enunciated a “reasonable basis” test for gender discrimination, a position he had never before mentioned. All these changes raised concerns about his intellectual integrity.

(Concluded on September 10)

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Borked! Really? (continued)

The conservative lament that Robert Bork was treated unfairly in his nomination to the Supreme does have some validity. Liberals did launch an intensive campaign against the nomination. This campaign may have seemed unprecedented to some, but it did have seeds in previous nominations. It was not unusual before the twentieth century for the Senate to reject Supreme Court nominees. A nominee was turned down as early as 1797, and one in four nominees was rejected in the nineteenth century.

In the first half of the twentieth century unsuccessful campaigns were mounted against nominees Louis Brandeis and Thurgood Marshall. On the other hand, the 1930 opposition to John J. Parker portraying him as a racist and anti-union was successful. However, the reaction to these nominees did not produce the frenzy that would later be seen with Bork. Nevertheless, that frenzy had roots going back to President Johnson’s nomination of Abe Fortas, then an Associate Justice of the Supreme Court, to Chief Justice. There were legitimate issues about Fortas, but the opposition went beyond them. Bronner, after discussing the Fortas controversy, concludes that it was “plagued by partisan politics, ideology, character concerns, and closeness to LBJ.” As partisans often do, some looked for the opportunity to respond, and that came with President Nixon’s nomination of Clement Haynsworth to the Supreme Court. (You can look him up, and G. Harrold Carswell, too.)

The Bork nomination, then, was not the only time partisanship took the stage with a Supreme Court nomination. But the Bork controversy was unprecedented in the media campaign mounted against him. Press and TV ads were not used against other nominees as they were against Bork, and as we see in political advertising today, much that was said so grossly oversimplified Bork’s views that the content was unfair.

Such attacks, however, did not start in the media, but with Senator Ted Kennedy, who on the Senate floor, said, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

The conservative outrage over this attack increased with an ad by the People for the American Way featuring Gregory Peck. A family gazed at the slogan “Equal Justice Under Law” chiseled on the Supreme Court building while Peck on the sound track, as Bronner summarizes it, “accused Bork of opposing civil rights, privacy, and much free speech protection.” Peck continued, “Robert Bork could have the last word on your rights as citizens, but the Senate has the last word on him. Please urge your senators to vote against the Bork nomination, because if Robert Bork wins a seat on the Supreme Court, it will be for life—his life and yours.”

The ad may have been powerful, but it was aired little and probably would have drawn minimal attention. Then a White House spokesman attacked it, and the ad got widespread notice as it was played again and again on news programs, which brought more examination of Bork’s positions. Many came to think that the ad was not really unfair, for Bork had opposed civil rights laws and Supreme Court privacy decisions, and he had announced a position that would drastically limit free speech.

The borked view of history fixates on Kennedy’s speech and sees only partisanship. It cites the Gregory Peck ad and sees simplistic, inflammatory summaries of what Bork believed. It dwells on irrelevancies that come up, such as discussion of his beard and what movies he had rented. But that history ignores Bork’s actual views and how they were explored at some depth by many noted lawyers and scholars before the confirmation vote and at the five days of the Senate hearing, which was akin to a constitutional law seminar exploring Bork’s views. The confirmation process, in fact, was filled with substance. It provided good reasons why Robert Bork should not have been on the Supreme Court.

(Continued on September 7)

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