The Fallacy of “Originalism”

February 6, 2017

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In my last post, I listed a number of the opinions that placed Justice Antonin Scalia on the far right of the judicial spectrum. That is the same territory where we find President Trump’s Supreme Court nominee, Judge Neil Gorsuch. I suggested that Trump could have helped bring the country together by nominating a more moderate justice, like Merrick Garland, but he chose not to do so.

Conservatives may reasonably argue that where a judge falls on some spectrum of opinion is less important than the constitutional correctness of his or her positions. We often hear the claim that conservative justices just follow the constitution, while liberal justices exceed their authority by trying to make new law to carry out some liberal agenda. Justice Scalia was the main proponent of the position called “originalism,” which holds that the articles of the Constitution have an original meaning that never changes and can be applied consistently. Less conservative judges and legal scholars say that this approach treats the Constitution as a lifeless document, instead of as a living document subject to evolving interpretation.

An original fixed meaning?

The notion that any set of words has a fixed meaning and requires no interpretive process goes against most of what I have learned as a sociologist. I believe that meaning always depends to some degree on context, and context is inherently broad and flexible. This is true even for terms in the physical sciences. Think of how quantum physics has provided a new context for understanding what an electron is (particle? wave of possibility?).

Few legal scholars would argue that the words of a law have one meaning that is obvious to anyone who reads them, or even to everyone who did read them at the time of their adoption. For one thing, getting enough votes for passage often requires using language that is vague enough to satisfy people with different views. Then of course, the courts have to figure out what the words mean in practice–that is, in the application to real situations and cases. That is the inescapable challenge of interpretation.

The First Amendment guarantees freedom of speech, but the devil is in the details. Does it mean that I am free to yell “Fire!” in a crowded theater (Justice Oliver Wendell Holmes’s famous example)? To give political speeches with a bullhorn on a residential street at 2:00 in the morning? To slander someone by telling deliberate lies about them? To trick customers into buying worthless securities with fraudulent claims? To spend millions of dollars of corporate profits to help elect candidates who promise to vote against environmental regulations?

The idea that every reasonable application was anticipated and agreed upon when a law was passed is difficult to defend. The more realistic position is that the meaning of a law becomes clearer as judges apply it to cases, but that occurs over time. When does the meaning become entirely clear–after ten years, fifty years, a hundred years? Once we admit that the meaning of a law evolved over time, we must also admit that it continues to evolve in the present era. Legal interpretation will always be a balancing act that respects original intentions and precedents, but remains open to new interpretations and applications.

When the Fourteenth Amendment was adopted after the Civil War, it was not at all obvious that the equal protection clause required racial integration. Until the Brown v. Board of Education decision in 1954, courts saw legally mandated racial segregation as compatible with the equal protection of the laws. That was the doctrine of “separate but equal” enshrined in Plessy v. Ferguson in 1896. By the mid-twentieth century, more people understood and acknowledged how segregation deprived racial minorities of equal educational, employment and housing opportunity. The legal requirements of “equal protection” changed accordingly. As Laurence Tribe and Joshua Matz say in Uncertain Justice, “Most scholars doubt that originalism, faithfully applied, can justify race and sex equality doctrines…that have become central to our national self-understanding.” I like that way of putting it: The meaning of our Constitution evolves along with our national self-understanding.

Still another example is our conception of liberty, which is explicit or implicit in many Constitutional articles. Everyone agrees that the Constitution places limits on government in order to protect the liberties of the people. In early America, those liberties were understood to include considerable freedom in economic matters, within the “laissez-faire” free market. On the other hand, strict regulation of personal sexual behavior was permissible. Maybe that made sense in a sparsely populated, predominantly rural society with a high birth rate, a high demand for labor, a strong association between sex and reproduction, and a strong expectation that women would marry and bear children. In urban industrial America on the other hand, the need for more business regulation became apparent, while the state’s need to favor marital and reproductive sex through strict sexual regulation became less clear. Along with the sexual revolution and the emancipation of women came Supreme Court cases that struck down old legal taboos–on contraception in Griswold v. Connecticut (1965), on abortion in Roe v. Wade (1972) on homosexual behavior in Lawrence v. Texas (2003). Scalia was not amused by this trend, and he challenged his fellow justices to explain how laws that were once constitutional could now be unconstitutional. But inevitably the specific rights implied by the Constitution are redefined from time to time, even as the abstract words of the Bill of Rights remain the same.

When liberal justices strike down a law they find unconstitutional, conservatives complain that they are usurping the role of the lawmakers. Just apply the law; don’t make it, judges like Neil Gorsuch say. If taken too far, that turns the judicial branch of government into a rubber stamp for the legislative branch. Interpretation and evaluation of law in the light of the Constitution is exactly what the judiciary is supposed to do. And conservatives are hardly passive in the face of laws they dislike. They are perfectly willing to strike down laws that infringe on the liberties they recognize, even if they have to engage in their own creative interpretation of the Constitution to do so.

Scalia on the right to bear arms

As a case in point, consider Justice Scalia’s opinion representing the conservative majority in District of Columbia v. Heller (2008). That decision struck down the D.C. ban on handguns as a violation of the Second Amendment.

The Second Amendment states, “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.” Before Heller, the Supreme Court had limited the right to bear arms to participation in an organized militia, which does seem to be the most obvious interpretation. The court had never before struck down a law limiting private ownership of guns, and in 1939 it upheld a law banning the ownership of sawed-off-shotguns.

By 2008, however, a stronger conservative movement was promoting a broader and more individualistic interpretation of gun rights. Public support was growing for gun ownership, not just for hunting, but for self-defense in response to high crime rates, and also (on the far right) for potential resistance to federal government tyranny.  As a conservative gun owner himself, Scalia had some sympathies with this interpretation.

In order to break with many years of judicial precedent, Scalia had to “discover” the new more individualistic right to bear arms in the Constitution. He accomplished this through historical research purporting to show that the individualistic meaning was actually the original meaning. From the beginning, people understood the Second Amendment to be conferring a personal right to own guns, whether participating in a militia or not. They knew what it meant when it was passed, even if the courts were apparently misled by the wording and wrongly narrowed it to a militia! In Scalia’s words, “Constitutional rights are enshrined with the scope that they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

While many conservatives accept Scalia’s claim that he is just reading the Constitution as it was originally intended to be read, constitutional scholars like Tribe and Matz are skeptical. They point out that in order to assert what the amendment meant in 1791, Scalia actually draws on sources from the 1600s to the 1900s, as if there were a single unchanging opinion that prevailed throughout the entire country over several centuries. Other judges and scholars can find historical materials with contrary positions. Scalia also supports exceptions to an absolute right to bear arms that were hardly obvious to all in the eighteenth century, such as the disqualification of felons (not recognized in federal law until 1938) and the mentally ill (1968). Tribe and Matz say, “It is unclear how an exception for laws born in the twentieth century could possibly accord with Heller’s claim that Second Amendment rights were forever defined in 1791.” It is also hard to see how originalism can settle questions that have only arisen recently, such as the legality of computerized background checks. Tribe and Matz conclude, “Ultimately, a close look at Heller reveals an opinion that mixes original meaning with broad national traditions and distinctly modern understandings.”

Originalism and conservatism

We shouldn’t be surprised that conservatives are fond of legal originalism, since conservatism and originalism amount to very much the same thing. Originalists like Scalia and Gorsuch go as far as they can to find the law in “national traditions” rather than “modern understandings, although they cannot quite pull it off. Essentially they are traditionalists rather than modernists. But that doesn’t mean they aren’t judicial activists at times. They are quite willing to overturn existing laws and legal precedents in order to defend tradition.

In Scalia’s case, his cultural traditionalism was so extreme that it endangered our emerging recognition of the rights of racial minorities, women, consumers, the LGBT community, and perhaps the thousands of Americans killed with firearms each year. Extending this conservative court into the future will not serve our country very well.

Another Scalia? Seriously?

February 3, 2017

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In selecting a justice for the Supreme Court, President Trump had a golden opportunity. He could have taken a big step toward his stated goal of being a president for all the people. He could have nominated someone like Merrick Garland, a moderate and centrist judge praised by leaders of both parties and acceptable to the great majority of Americans. That’s what Barack Obama did, but we all know what happened. Republicans refused to give the candidate a hearing, holding the position open for the next–hopefully Republican–president to fill. And it worked. But wouldn’t it have been great if Trump had done the right thing for the country and nominated a moderate anyway?

Instead, we are getting Judge Neil Gorsuch, one of the most far-right conservatives available. Republicans will probably get him confirmed, one way or another, but with almost no bipartisan support.

Trump selected exactly the kind of justice he said he wanted, someone as similar as possible to the man he would replace, Justice Antonin Scalia. Judge Gorsuch has made clear that he regards Scalia as his primary role model. Court watchers who have analyzed Judge Gorsuch’s opinions rate him at least as conservative as Scalia, and probably a little more so.

A good way to anticipate Judge Gorsuch’s role on the Court is to recall some of Scalia’s own positions:

Scalia supported racial and gender equality in the abstract, but put severe limits on the government’s efforts to achieve it. He was an ardent foe of deliberately increasing minority or female employment or educational admissions, even to correct an existing pattern of discrimination or to achieve the educational purpose of creating a diversified student body.

Scalia voted to eliminate the requirement of the Voting Rights Act that states with a history of discrimination get changes in their voting laws approved by the Justice Department. He did not see enough racism in today’s America to justify such a “burden”. States like North Carolina and Texas immediately rushed to pass new voting restrictions that would impact negatively on black voters.

He supported the right of states to criminalize homosexual behavior and dissented when the court put a stop to that criminalization. He supported state laws against same-sex marriage, as well as the federal law that refused to recognize such marriages even in states where they were legal.

He favored overturning Roe vs. Wade and allowing states to ban abortions at all stages of pregnancy.

Scalia wanted to strike down the Affordable Care Act, seeing no constitutional basis for its individual mandate to obtain health insurance. He did not find that basis in the federal government’s power to impose tax penalties (as Chief Justice Roberts did), or in its power to regulate interstate commerce. On the other hand, he supported using the interstate commerce clause as a justification to ban medical marijuana even in states that had legalized it.

In criminal law, he voted to overturn the Miranda decision, which requires authorities to inform arrested suspects of their legal rights. He dissented when the Court outlawed the death penalty for minors or the mentally retarded, something that most democratic countries had done years ago.

Scalia viewed most campaign finance reform as an infringement on the free speech rights of donors. He supported the right of corporations as well as individuals to spend unlimited amounts of money to promote political causes. Like his conservative colleagues, he acknowledged no danger that money would corrupt politics as long as it was spent by PACs and super PACs rather than given directly to political campaigns.

He also upheld as constitutionally protected free speech the right of businesses to market violent video games to minors without parental approval. On the other hand, he was more willing to restrict speech for students, prisoners, public employees and human rights activists. Constitutional lawyers Laurence Tribe and Joshua Matz (Uncertain Justice) see a pattern here, in that Scalia’s free-speech positions always “advantaged the powerful over the comparatively powerless.”

Scalia was one of the most pro-business justices since the 1940s. He could be relied upon to favor the interests of businesses over those of consumers or workers. One way to do so was to block class action suits in cases where alleged business misconduct affected many people. According to Tribe and Matz, “The Court has reflected that sentiment by issuing a string of opinions—all decided five-to-four and all authored by Scalia—that have the obvious purpose of destroying most consumer and employment class actions.”

Trump’s preference for judges as conservative as Scalia is further evidence that he is a very strange kind of populist. Scalia wanted to protect people against what he saw as overly regulatory federal government. But for a man of justice, he was remarkably uninterested in protecting people against injustices perpetuated by the rich and powerful. Maybe he was a man of his time, but as time marches on, the positions he held are becoming increasingly out of the American mainstream.

We keep hearing that this was a “change election.” I doubt that putting another Scalia on the Supreme Court is the change that most people want.