Trump Beyond Reach of Law

February 3, 2020

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Let me get this straight. The House of Representatives has impeached President Trump for abuse of power and obstruction of Congress. The abuse of power is that he allegedly made assistance to Ukraine–a contrary invaded by Russia–conditional upon its government’s initiation of investigations that would help Trump’s reelection campaign. That scheme included illegally holding up military aid already authorized by Congress. The obstruction of Congress involved refusing to comply with lawful subpoenas for witnesses and documents related to the investigation of the abuse of power.

The response of Senate Republicans to the obstruction charge is to assist Trump in the obstruction by blocking any attempt to obtain the very witnesses or documents that Trump is withholding. That makes Senators accomplices to the obstruction. Majority Leader Mitch McConnell admitted as much when he promised to coordinate the Senate trial with the White House to get Trump acquitted, just before he raised his right hand and swore an oath to consider the evidence impartially.

The response of Senate Republicans to the abuse of power charge was first to deny that it happened. Now it has evolved into an admission that it happened, but Trump should be acquitted anyway. Why? Because his intent was only to get reelected, which he thought was in the “public interest.” And because the people should decide his fate in this year’s election. You know, the same election that Trump has been trying to corrupt. And what’s to stop him now? We have a justice department that says that a sitting president cannot be indicted. We have a Senate majority that says that he shouldn’t be impeached. We have a Congress that can’t even exercise oversight because Trump acknowledges no obligation to provide witnesses or turn over documents.

The Senate has failed to fulfill its constitutional obligation for a fair trial. That’s not too surprising, considering that it has not been functioning as a democratic institution for some time. The Majority Leader refused to provide even a hearing for a highly respected, moderate Supreme Court nominee who had previously been praised by both parties, despite the constitutional obligation to “advise and consent.” Meanwhile, he fills the courts with judges whose views are far to the right of most Americans. Few bills passed by the House or sponsored by Senate Democrats are even debated in the Senate. That includes bills to protect the integrity of our elections against foreign interference. This Senate will go down in history as an enabler of the most serious assault on our democracy in our lifetimes.

One can only hope that our faith in democracy–although shaken by this administration and its congressional enablers–will not be destroyed. Very often in public affairs, the tide does turn. Truth comes out; corruption is revealed; the rule of law is strengthened; would-be dictators fall; and commitments to democratic principles are renewed.

Don’t forget to vote, or at least try to!

The Attorney General vs. the Rule of Law

May 3, 2019

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A pretty strange headline, yes. But what can I say? Attorney General William Barr’s Senate testimony provided more insight into his thinking about the Mueller investigation, and what he thinks is troubling.

Who decides?

Recall that Robert Mueller stopped short of deciding whether or not the President had committed a crime. He accepted the Justice Department guideline that a sitting president cannot be indicted. He also believed that it would be unfair to accuse a president of a crime without indicting him, since the president would be deprived of the opportunity to clear his name in court. So he just laid out the facts, and then left it to Congress to begin an impeachment proceeding if the facts warranted it.

Attorney General Barr sees it very differently. He told Congress that a Special Counsel investigation is no different than any other criminal investigation. “Once a prosecutor has exhausted his investigation into the facts of a case, he or she faces a binary choice, either to commence or to decline prosecution. At the end of the day, the federal prosecutor must decide yes or no.” Barr went so far as to say, “I think that if he felt that he shouldn’t go down the path of making a traditional prosecutive decision, then he shouldn’t have investigated”!

Apparently, Barr sees no value in an investigation that might lead to Congressional action rather than Justice Department prosecution. He prefers to keep a legal decision about the executive within the executive branch itself.

Since in Barr’s eyes, Mueller failed to do his job by not making a decision, Barr felt justified in making the decision for him, instead of referring it to Congress. In fact, he rushed to make it before Congress had a chance to see the report. He even referred to the case as “my baby.”

No obstruction?

Attorney General Barr’s judgment is that the President committed no crime. He bases his judgment of “no collusion” on Volume I of the Mueller report, which failed to find sufficient evidence of a criminal conspiracy. He bases his judgment of “no obstruction” on Volume II…or does he?

Actually, his four-page “summary” of the Mueller report says that the lack of conclusive findings in Volume I eliminates the “underlying crime” that is relevant to the President’s intent. If there was no conspiracy, what corrupt motive would the President have to obstruct the investigation? That enables him to clear the President without taking very seriously the voluminous evidence of obstruction in Volume II.

There is a gaping hole in this logic. If the evidence in insufficient to establish conspiracy, that could be largely due to a successful coverup. Mueller reported that “several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference.”

One can easily imagine a scenario in which the President does something wrong, but then obstructs the investigation so well that the wrongdoing cannot be firmly established. His Attorney General then concludes that the President couldn’t have had a motive to obstruct justice, since he hasn’t been proven to have done anything wrong!

But it gets worse. In response to Senate questioning, Barr also took the position that the President can rightfully terminate an investigation if it is based on “unfounded allegations.” Who decides if the investigations are unfounded? The President, of course. So an investigation to determine if the allegations are true becomes unnecessary.

That assumes that the President is the best judge of the legality of his own conduct. It also assumes that he is omniscient enough to know what everyone else in his campaign or administration is doing. For Barr, it is justification enough that President Trump had a “sincere belief” that his administration was unfairly under attack. How many of us would be willing to place our trust in this president’s sincerity?

The implications of this line of legal reasoning are mind-boggling. The Chief Executive gets to decide whether an investigation is warranted of allegations against himself and his associates. If he ends such an investigation, the Justice Department is fine with that, and Congress is deprived of the information it needs to exercise its impeachment authority under the Constitution. The idea that the administration can also stonewall Congress and not respond to legal requests for information is consistent with this reasoning. The supposedly co-equal lawmakers take a back seat to the executive, no matter how incompetent or corrupt. Goodbye rule of law, welcome back George III.

The Mueller Report–Attorney General Barr’s Distortions

May 1, 2019

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On March 22, Special Counsel Robert Mueller submitted his report on Russian interference in the 2016 election to Attorney General William Barr. Unfortunately, Barr did not just release the report and let it speak for itself. Before putting out a redacted version, he rushed to conclusions that differed in important respects from the report itself.

Two days after receiving the report, Attorney General Barr released a four-page document that he said was intended “to describe the report and to summarize the principal conclusions reached by the Special Counsel and the results of his investigation.” When complaints began to surface that his summary was incomplete and misleading, he backtracked and denied that it was really a summary.

Barr’s conclusion on conspiracy

Recall what Mueller’s own summary said about a possible conspiracy between the Russians and the Trump Campaign:

As set forth in detail in this report, the Special Counsel’s investigation established that Russia interfered in the 2016 presidential election principally through two operations. First, a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton. Second, a Russian intelligence service conducted computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and then released stolen documents. The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

Attorney General Barr repeats what the report says about the Russians. But then he skips over the part about the links between the Russians and the Trump Campaign, as well as the part about the mutual benefits the parties were expecting. Barr goes right to his conclusion, “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election.” In case anyone missed it, Barr repeats the conclusion in each of the following two paragraphs. Apparently, all the wrongdoing was by the Russians, and no misdeeds by Americans are worth mentioning.

Barr also leaves out Mueller’s qualifying statements: first, that a failure to establish facts does not prove the absence of those facts; and second, that the lies told by many suspects impeded the investigation in finding the facts.

At his press conference before he released the report, Barr did exactly what Mueller warned against, turning insufficient evidence of criminal conspiracy into a flat-out judgment of “no collusion,” Trump’s favorite talking point.

President Trump faced an unprecedented situation. As he entered into office and sought to perform his responsibilities as president, federal agents and prosecutors were scrutinizing his conduct before and after taking office and the conduct of some of his associates….At the same time there was relentless speculation in the news media about the president’s personal culpability, yet as he said from the beginning, there was, in fact, no collusion.

Barr’s conclusion on obstruction

Mueller had found considerable evidence of obstruction of justice by President Trump. But he believed that Justice Department regulations prevented him both from indicting the President and from accusing him of a crime. “[W]e determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”

In his summary (or non-summary), Attorney General Barr just says, “The Special Counsel…did not draw a conclusion–one way or the other–as to whether the examined conduct constituted obstruction.” That’s technically true. But since Barr does not mention that Mueller was prevented by Department regulations from reaching a conclusion of criminal conduct, he leaves the reader to think that the evidence must have been inconclusive. Note that Mueller was not precluded from clearing the President of wrongdoing, and he says that he would have done so if the evidence supported that conclusion.

Then Barr asserts:

The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.

His determination is that the evidence is not sufficient to establish obstruction of justice.

But Mueller had said nothing about leaving it to the Attorney General, who would be subject to the same regulations that tied Mueller’s hands. In Mueller’s view, it fell to Congress, or to federal and state prosecutors after Trump left office, to make the appropriate legal judgments.

What Barr does is take advantage of Mueller’s restraint, turning a policy of not accusing a sitting president into a conclusion of insufficient evidence, a conclusion that Mueller never reached about obstruction. As Senator Angus King put it, “Mueller passed the obstruction question to the Congress, and Barr intercepted the pass….”

Barr’s willingness to go beyond the report to conclude that Trump and his associates had committed no crimes enabled the President to claim complete exoneration, while characterizing the entire investigation as a witch hunt and an attempted coup against his presidency. Then he proceeded to obstruct any possible Congressional investigation by vowing to resist all subpoenas.

Mueller’s response to Barr

Three days after Attorney General Barr released his misleading “summary”, Special Counsel Mueller wrote him a letter characterizing it this way:

The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this office’s work and conclusions….There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.

Barr kept Mueller’s letter secret and later testified before Congress that he didn’t know what Mueller thought of his conclusions.

In his handling of the Mueller Report, Attorney General Barr did a disservice to the Justice Department and the American people. He acted more like Trump’s personal slick attorney, spinning the evidence for the jury in order to create the best impression of innocence he could. I’m glad that Mueller called him on it, and I continue to hope that the full truth will come out.

The Mueller Report–Volume II

April 29, 2019

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In the first volume of his report, Special Counsel Robert Mueller reported that the investigation failed to establish a conspiracy between the Trump Campaign and Russians hackers, although it did establish that the Russians interfered in the 2016 election in many ways. The second volume finds significantly more evidence that Trump tried to obstruct the investigation itself.

Legal limitations

In reaching any conclusion about obstruction of justice, the Office of Special Counsel was restricted by Department of Justice regulations, which prohibit indicting a sitting president. Not only that, the report refrained from even accusing President Trump of obstruction, arguing that it would be unfair to accuse someone of a crime without indicting them. As Mueller explained:

[W]e determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person’s conduct “constitutes a federal offense.”…Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

The implication is that no matter how much evidence of crime he found, Mueller was not going to conclude that a crime had been committed! He was only going to put the evidence out there and let someone else draw the appropriate conclusion and take the appropriate action. Given the Department of Justice’s prohibition on accusing or indicting a sitting president, only two possible ways of bringing a president to justice remain: an accusation of “high crimes and misdemeanors” by the House of Representatives, or prosecution by state or federal authorities after he leaves office.

The Trump administration has been quick to declare the case closed because the Mueller report failed to conclude that the President had committed a crime. That is ridiculous, since the investigation was restricted from reaching such a conclusion before it began (although the public was not very aware of that). What it did do was look for but fail to find sufficient evidence of conspiracy, but find ample evidence of obstruction.

Evidence of obstruction

The report summarized the evidence of obstruction this way:

Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations. The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.

Here are some of the conclusions from the section, “Factual Results of the Obstruction Investigation.”

After Michael Flynn was caught lying to the FBI about his discussion of sanctions with the Russian ambassador, Trump met privately with FBI Director Comey and asked him to let Flynn go. “Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russian investigation and that he believed…that terminating Flynn would end ‘the whole Russia thing’.” Shortly afterwards, he fired Comey.

When Attorney General Jeff Sessions told the President that a Special Counsel had been appointed (in May of 2017), he was extremely upset. He blamed Sessions for losing control of the investigation by recusing himself, and asked for his resignation. Trump relented and didn’t accept the resignation at that time, but continued to criticize Sessions’ recusal, eventually firing him the following year.

One month after the Special Counsel was appointed, Trump directed White House counsel Don McGahn to tell Deputy Attorney General Rod Rosenstein to fire Mueller. McGahn resisted the order and decided to resign, but was talked into remaining by Reince Priebus and Steve Bannon. Trump later told McGahn to deny that he had been ordered to fire the Special Counsel, but he refused.

Trump also tried to curtail the investigation by asking former campaign chair Corey Lewandowski to convey a message to Attorney General Sessions. “Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign, with the Special Counsel being permitted to ‘move forward with investigating election meddling for future elections’.”

When the Trump Tower meeting was made public, the meeting in which Russians offered information on Hillary Clinton in return for assistance in ending sanctions, the President dictated a statement claiming that the meeting had only been about “Russian adoption.”

When former campaign chair Paul Manafort was charged with making false statements and other crimes, Trump did not want him to cooperate with the investigation. “The President and his personal counsel made repeated statements suggesting that pardon was a possibility for Manafort, while also making it clear that the President did not want Manaford to ‘flip’ and cooperate with the government.” Manafort told his co-conspirator Rick Gates, who later told investigators, that “it was stupid to plead, saying that he had been in touch with the President’s counsel and repeating that they should ‘sit tight’ and ‘we’ll be taken care of’.” Trump praised Manafort for refusing to “break”.

The President personal lawyer, Michael Cohen, was only in Trump’s good graces as long as he lied for the President. He lied to Congress about how long Trump continued to pursue his Moscow project while denying it during the campaign, and also about the payment of hush money to the porn star with whom Trump had an affair.  “Before Cohen began to cooperate with the government, the President publicly and privately urged Cohen to stay on message and not ‘flip’. Cohen recalled the President’s personal counsel telling him that he would be protected so long as he did not go ‘rogue’.” After he started cooperating with prosecutors, Trump called him a “rat”, attacked his family, and tried to undermine his credibility.

Issues to be resolved

Three elements have to be present to support a charge of criminal obstruction: “(1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent.”

Knowing what the President intended when he did what he did is especially tricky, considering that he lies so often, and that he refused to answer any of the Special Counsel’s questions on the subject of obstruction.

For example, what was Trump thinking when he fired Comey? Did he really think that Comey was so essential that this would stop the entire Russian investigation? And even if he did want to stop the investigation, was it because he was covering up a conspiracy, or was it just that he was afraid of other embarrassing revelations, such as the Trump Tower Moscow deal that he had lied about?

The Mueller Report did not have to answer all these questions, since it was precluded from accusing the President of a crime anyway, as explained above. But Congress would have to address them if it chose to pursue the matter further. This is as far as the Special Counsel could go:

Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Now President Trump is refusing to allow anyone in his administration to testify to Congress, even in response to a legal subpoena. This applies not only to a possible impeachment hearing but to any oversight committee of the House. Even Richard Nixon never went that far. One can only conclude that the obstruction continues.


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.