Wednesday, August 24, 2005

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 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.



At August 24, 2005 at 1:06:00 PM PDT, Anonymous Josh said...

I'm a young(ish) lawyer and this post has convinced me to bookmark your blog.

At August 24, 2005 at 5:08:00 PM PDT, Anonymous Anonymous said...

Thanks for a really enlightening post. Federalist #37 is now an instant reference when dealing with my 'Strict Constructionist' freinds that insist the Constitution be read literally - like some sort of recipe.

Please finnagle an invitation to appear on the Sean Hannity show and beat him to a pulp with his "Originalism". And while you're at it do the same to Mark Levine, that jack-booted little worm.

At August 24, 2005 at 5:09:00 PM PDT, Anonymous Anonymous said...

Thanks for a really enlightening post. Federalist #37 is now an instant reference when dealing with my 'Strict Constructionist' freinds that insist the Constitution be read literally - like some sort of recipe.

Please finnagle an invitation to appear on the Sean Hannity show and beat him to a pulp with his "Originalism". And while you're at it do the same to Mark Levine, that jack-booted little worm.

At August 24, 2005 at 5:10:00 PM PDT, Anonymous Anonymous said...

Thanks for that quote from the Federalist.

I think most of the big name Founders thought a constitution had to adapt to the times. As I remember, Jefferson was more radical, and also more rigid about adapting constitutions to the times. He wanted a more fixed interpretation than Madision, something that in a well defined sense was closely attached to the intention that could be read behind the words, so he was closer to modern originalism. Except he realized that would produce an inflexible, unworkable government. So, hes said, let's have a constitutional convention every 20-30 years! A kind of legal Jubiliee year. Some say this was youthful exuberance (except I think he was in his 40s when he wrote it). But you see the associated "earth belongs to the living" theme several times in his letters, into the second decade of the 19th century. So even Jefferson realized constitutions have to adapt.

There is also the passage by Madison (I forget where it is) that says any sense of the original meaning you have to understand the popular sense among the US population, as well as the state conventions where it was ratified. Wow! That gives plenty of scope for interpretation, doesn't it. And that was the old Madison writing, not the more Federalist young Madison

At August 24, 2005 at 10:51:00 PM PDT, Anonymous Shermaclay said...

Your citation to Federalist 37 is very telling. Another great argument against originalism is the Ninth Amendment itself, which states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In other words, the Constitution itself says there are rights to be protected other than those set forth in the text. If one is to be true to the text, therefore, one must follow its directive to go beyond the text. Hence, those Originalists who want to limit enforcement of constitutional rights to those set forth in the rest of the Constitution, other than the Ninth Amendment, are contravening rather than following the intent of the Framers.

At August 25, 2005 at 7:31:00 AM PDT, Blogger Mitchell J. Freedman said...


I have never heard that particular interpretation of the Ninth Amendment before. Does the Ninth Amendment's use of the word "people" allow Congress to have unenumerated power, for example, if we conclude the Ninth Amendment is a source that allows one to go beyond the text? If we're saying that as with any Amendment, it must be consulted, then that is less controversial.

If we're talking about the right to privacy, then perhaps you are referring to Justice Goldberg's concurring decision in Griswold v. Connecticut (1965), which relied upon the Ninth Amendment to support a constitutional right to privacy. I must revisit that particular opinion, though at the time I read it in law school, I will admit feeling Goldberg's use of the Ninth Amendment was questionable due to the dearth of case law or reliable or authoritative history as to its particular intent.

As for my perhaps New Deal obsession with the "commerce clause" or more broadly, "enumerated" vs. "unenumerated" powers of Congress, I am satisfied with the precedent from Gibbons v. Ogden (1824), which states Congress' power is implied and unlmited in interpreting the original Constitution. Chief Justice Marshall did not refer to the Ninth Amendment, though if he would have found a persuasive way to invoke that amendment, I would find it more compelling as it was much closer in time to those who framed that amendment and the Constitution.

At August 25, 2005 at 4:47:00 PM PDT, Anonymous Anonymous said...

A large proportion of the founders attending the Constitutional Convention were lawyers trained in the Common Law. The rest were businessmen and land owners familiar with the legal methods of the time. They wrote a common law statute, intended to be interpreted in varying ways over time, just as every other common law statute had been for hundreds of years.

I have heard many folks (and politicians with JDs who should know better) talk about the Courts not making law. This argument is usually intertwined with a textual argument stating that there is no express authority in the Constitution for x, y or z. This approach ignores the fact that the common law consisted almost entirely of laws made by judges. The founders were immersed in this legal method and would have said so, if they were suddenly adopting a radically new approach.

At May 3, 2009 at 11:02:00 PM PDT, Anonymous Anonymous said...

^^ nice blog!! ^@^

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