US Constitution: Originalism means the Constitution is a "living document"
Kevin Drum, over at the Washington Monthly, wades into the issue of originalism. Why we who support New Deal sensibilities buy into the garbage from rightwingers that they are the originialists is one of my most profound disappointments regarding our public discourse. Here is what I emailed to Kevin (and those who wish to peruse a prior post on the subject at MF blog, see here):
(UPDATE: Kevin linked to me in a follow up post. Thanks Kevin! And thanks to the commenters who found me from Kevin's posting.)
Take a gander at Federalist paper no. 37. Then, read M'Colloch v. Maryland and Gibbons v. Ogden. The point of Madison (in Fed 37) and Chief Justice Marshall in the two decisions is that the use of broad terms in the Constitution recognized differences among the founders and that only experience will provide a sense of meaning to the broad terms. In fact, in M'Colloch, Marshall states the constitution must be a living document to have a fealty to it.
The three citations above also, somewhat paradoxically, posit a strong federal presence in the area of economic regulation passed by legislatures--as opposed to courts, which is what makes Scalia, Thomas, Roberts and the 19th Century Justices of the US Supreme Court so anti-originalist when they knock down economic regulations particularly designed to ameliorate capitalism's adverse effects on people. Really, now: The US Supreme Court, in M'Culloch sanctions a federally-owned bank for goodness sakes! A socialist system of banking? But of course. The Founders were mercantilists, not capitalists, which is a big difference as you well know.
About 10 or so years ago, I went toe to toe with Scalia on this when he was in Orange County. When I pointed this out, he agreed with me to the extent that, too often, we have no idea what "the Founders' intent" was in deciding a particular case. That is why, however, Scalia is a mess and not very bright in his thinking. His texturalism is a way to avoid messy constitutional history, but he has no problem pulling the rug out from under texturalism when he decides to wade into legislative and constitutional history in say...school prayer (though we know that Souter's concurring opinion in Lee v. Weisman (1991) had a great take down on Scalia's history). And worse, when it came to state sovereignty cases, he pulled out a theory (with his brethren, O'Connor, Kennedy, Rehnquist and Thomas) that made advocates of the right of privacy and a living constitution wince in pain (I note for example that Eugene Volokh and other "conservative" law professors are appalled by the reasoning of the state sovereignty five). Worst, when faced with the rejection of the Virginia Plan for term limits of Congressmen, Scalia ignored that in his support of Thomas' dissent in the term limits case in the mid-1990s. What happened to original intent there, Tony?
If I mean to say anything, it is this: Just as "liberal" and "conservative" are meaningless without a qualifier of "cultural" "economic" or "political" in front of those words, so too are averments that one is a "strict constructionist" or "originalist." The key issue for any judge who wants to be a great justice is understanding the deep and often contradictory currents that run through the history of our nation. To be an honest judge, one should always make sure, before one signs off on the opinion, to go through the exercise of how one would feel if one was on the losing end of the decision--and then going further to understand what is the potential abuse from the rule of law one is affirming. Stanley Mosk, the great and honest justice of the California Supreme Court, once remarked to me at a dinner we attended that my analysis of great and honest was the best he'd heard. I was very proud to hear that from him as I consider Mosk one of the best justices ever.
Yes, I'm a lawyer, gosh darn it! And I also think Bush has no "right" in a close election to put up for a nominee someone as extreme in his views as Roberts. It's that simple and the Dems should filibuster the heck out of that nomination."
End of email to Kevin Drum.
Note to readers: The key quote in Federalist Paper 37:
"All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated."
I love that last line as it puts to rest what Madison would have thought of the Pat Robertson crowd who claim the Bible is perfectly understood or even understandable.