T Nation

Constitutional Originalism

This may be just a bit too law-dorky, but with the excitement over Raich (medical marijuana case) and Kelo (eminent domain), along with the likely upcoming brawls over USSC nominees, some people may find it of interest.

It seems to me that, despite the ridiculous non-arguments from left-wing types who try to blast originalism because it means judges can’t make up Constitutional provisions, the only manner of judicial interpretation that is truly consistent with the underpinning of our Constitutional government is in fact originalism.

This post by a law professor at USD gives a short explanation of why that is the case:

http://therightcoast.blogspot.com/2005/06/normative-basis-of-originalism-by-mike.html

The Normative Basis of Originalism
By Mike Rappaport

In arguing that the Downing Street Memo supports the impeachment of President Bush, Brian Leiter offers some criticisms of originalism ( http://leiterreports.typepad.com/blog/2005/06/can_bush_be_con_1.html#more ) that require a response. In essence, Brian contends that there are no good normative arguments for following the original meaning of the Constitution.

I must beg to differ. In the Texas Law Review, edited at Brian?s own school, John McGinnis and I have published an article ( http://papers.ssrn.com/sol3/papers.cfm?abstract_id=288344 ) that provides a normative defense of originalism. (Randy Barnett has also defended originalism in a complementary fashion in his recent book: http://www.amazon.com/exec/obidos/tg/detail/-/0691123764/qid=1119505537/sr=8-7/ref=sr_8_7/103-3866607-2238210?v=glance&n=507846 ) McGinnis and I root the normative basis for following the original meaning of the Constitution in the fact that constitutional provisions can only be enacted by passage under strict supermajority rules. (See Articles V and VII of the Constitution.)

Laws that must pass under a strict supermajority rule are apt to be better than laws passed by majority rule. While the specific effects of supermajority rules depend on the type of laws being passed, the circumstances, and the model of the legislative process that one employs, one can make certain generalizations. First, that supermajority rules require the approval of a greater percentage of the legislature operates to protect minority interests from being exploited. Second, the greater support required under supermajority rules also means that laws must in general produce significant public benefits in order to pass. (For other arguments, see the paper.) While supermajority rules don?t make sense in all circumstances, they are desirable when applied to the passage of constitutional norms that will be entrenched against change by ordinary legislative majorities.

The supermajoritarian process for enacting constitutional norms provides a reason why constitutional provisions should be preferred to ordinary statutes passed under majority voting rules: the constitutional norms are likely to be of higher quality than ordinary legislation. The supermajoritarian process also suggests that the Constitution should be given its original meaning: it is only the original meaning of the provisions that would have been reviewed by the participants in the strict supermajoritan process.

Both Brian and the paper he cites to by Andrei Marmor ( http://papers.ssrn.com/sol3/papers.cfm?abstract_id=506302 ) miss this argument. They contend that absent the people consenting to the Constitution which has not occured, there is no reason to treat its original meaning as authoritative unless the Framers had some ?special expertise.? But it is not who the Framers were that justifies following their Constitution, it is the supermajoritarian process by which they enacted the Constitution. This process also justifies not following their handiwork when the Constitution has been amended.

This supermajoritarian defense of the Constitution is reinforced by the fact that original meaning interpretation guides and constrains judges. Under the loose interpretive approach favored by Marmor and most liberal academics, there is little to stop the Supreme Court Justices from imposing their own views on the nation. Since this amounts to constitutional amendment by a majority of 9 unelected judges, as opposed to constitutional amendment by a supermajority of elected officials, this process of judicial amendment is far worse than following the original meaning.

In the end, then, originalism is justified because it enforces provisions enacted in a process that suggests they will be desirable and assigns to judges the task of enforcing, not making, the law.

Man, I hope you guys get what you are asking for one of these days.

It would be nice, wouldn’t it vroom?

For the judiciary to do only what it was designed to do and not usurp the powers given exclusively to those that are elected by the people would be a very, very good thing.

What problem do you have with that, vroomster?

Not much, just reading the home appropriations committe, oh I’m sorry, the supreme court which bends over for government big and small, ruling.

Just be glad you have the right to bear arms. You might need to.

BB, I have to ask this question. I understand the principle of judicial review was established by a USSC decision.

Where does this particular ruling fit in your scheme of non-originality?

[quote]endgamer711 wrote:
BB, I have to ask this question. I understand the principle of judicial review was established by a USSC decision.

Where does this particular ruling fit in your scheme of non-originality?[/quote]

You can think good ol’ Chief Justice John Marshall in 1803 for the power of judicial review, created via his opinion in Marbury v. Madison.
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/marbury.html

So, a mere 27 years after the nation was born came the first case of judicial activism.

A couple of interesting side notes about the case can be found here as well:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm

And what a geeky road we trod upon now…

[quote]endgamer711 wrote:
BB, I have to ask this question. I understand the principle of judicial review was established by a USSC decision.

Where does this particular ruling fit in your scheme of non-originality?[/quote]

Originalism is original intent, not necessarily textualism. Textualism is a starting point, but if all text were unambiguous and covered everything that came up, there would be no need for any interpretation whatsoever.

ADDENDUM: I want to clarify a little. Even textualism doesn’t hold that nothing can be inferred. Textualism just holds that if it can’t be inferred from the text on the page of the law/Constitution, then you can’t look to anything further. Originalism means you can go back and look at historical sources and use the context and evidence to make inferences as to what was intended by the people who passed the law – in other words, you look to what they thought they were passing when they passed it. Going beyond that, and the interpreters are doing nothing but adding their own morals/priorities on top of what was actually passed. While it may be impossible to remove completely the individual biases of those doing the interpretations, at least if they attempt to find the original intent then such biases will be minimized.

Judicial review was an established practice at the time, and while a lot of folks would have you believe that Marbury v. Madison invented the concept, it really was just the first big case in which the Court asserted its role in reviewing laws in the caselaw. It gets played up far too much.

To the extent courts had a role in the tripartate system at all, it had to be w/r/t resolving cases and controversies, with controversies encompassing ambiguities in the law.

Now, the key is how they resolve those ambiguities. And in our system democratic republic, that means by interpreting the law as passed – either by the legislature and president in the case of normal laws, or by all the participants in the Constitutional process.

It’s the process that gives the laws their legitimacy, according to our theory of government that holds the key to legitimacy is the consent of the governed, who give their proxy to the legislature for lawmaking. ANd if they don’t like the laws they make, they can vote them out. This isn’t the case with life-tenured, unelected federal judges – and they shouldn’t be making up laws based on their own moral standards.

[quote]BostonBarrister wrote:

This supermajoritarian defense of the Constitution is reinforced by the fact that original meaning interpretation guides and constrains judges. Under the loose interpretive approach favored by Marmor and most liberal academics, there is little to stop the Supreme Court Justices from imposing their own views on the nation. Since this amounts to constitutional amendment by a majority of 9 unelected judges,

[/quote]

Well today we saw 5, not 9, judges just make private property rights a thing of the past.

A sad day in this once great nation.

Side note: I find it interesting that most americans know who won American Idol but don’t know the name of their congressman.

[quote]BostonBarrister wrote:
endgamer711 wrote:
BB, I have to ask this question. I understand the principle of judicial review was established by a USSC decision.

Where does this particular ruling fit in your scheme of non-originality?

[Thoughtful explanation about how Originalism lets Marbury v. Madison through the gate, whereas Textualism wouldn’t][/quote]

But how does Originalism help us deal with divining what the framers would have thought of various passages and their applicability in present times, if only they had known what we know now?

Certainly historical context helps us better understand their intentions. But since many of their intentions were simply to pragmatically stitch together (and keep stitched) a federation of its time, in what sense should their view of constitutional provisions supersede our own?

I’m not sure I like very much of what has been put on the back of ‘interstate commerce’, but in the end advancing technology has drawn the states and their fates ever closer together.

To sum up, I’m not sure ‘federalism’ is a word whose meaning doesn’t or shouldn’t change.

Rather than approach flag marriage or gay burning in the Constitution, I wish somebody would put together a convention to discuss what is federalism, what are states’ rights.

That would be my alternative to shooting the hapless messenger, i.e. the judiciary.

Let’s stop pretending every part of the Constitution works forever. But when we do amend that wondrous document, please dear Lord can we do it with some sense of esthetics?

This is a very telling statement and one I’ll get to in a moment. I agree wholeheartedly with the Professor’s statement. And so did Thomas Jefferson, who said that the Constitution should be scrapped and re-written every so many years (I believe it was 30) to reflect the changing views of society. However, amending the Constitution, we have found out, is a pain in the ass. I can only imagine the fun of having to re-write the whole thing. Then there is the “American Idol” syndrome. This will sound elitist, arrogant, and cynical, but the majority of the population can barely manage their own lives, and have barely enough knowledge to do their jobs competently.

Some don’t have even that, and their incompetence just makes life difficult for everyone else. Do we honestly expect these people to make informed decisions about constitutional amendments? And this isn’t limited to the brain-dead. Here in Colorado, every election brings referenda and constitutional amendment. I consider myself and educated person and I am trained in the law, but half the time, I can’t even figure out what the damn proposed amendment is trying to say.

These problems are supposed to be mitigated by elected representatives who supposedly represent the people. I seriously question whether our representatives truly represent the people or special interest groups, but let’s assume they do, in fact, represent the people. These representatives will not be able to pass laws that take all interests into account. This leaves minority interests out in the cold, as Rappaport mentioned. Actually, I think perhaps having a supermajority of the legislature pass certain laws may have a place. But Congress and most state legislatures only require simple majorities.

The Founding Fathers realized the a pure democracy where the will of the majority becomes law would create a tyranny of the majority. So they came up with the Constitution – a document designed to limit the powers of government. An enlightened representative should consult the Constitution to determine if the legislative body in question has the power to pass a proposed law. Well, we know this ideal went to hell some time ago. Starting with the New Deal legislation, Congress pretty much figured it could pass whatever law it wanted. Most state legislatures think so, too.

So Rappaport suggests that if a representative passes a bad law, the people can just vote that person out. That’s a very nice theory; here’s the reality. Representatives are elected for two years and Senators for six. At a minimum, the people must wait two years to let their voice be heard. There are no gurantees that the offending representatives will be voted out, nor are there any guarantees that the new bunch of elected officials will vote to do away with the bad laws. Meanwhile, the people are stuck with bad laws.

So the question then becomes, “How do we effectively enforce the limits of government power intended by the Constitution?” There is that thing called judicial review. On the one hand, the Constitution never contemplated judicial review. On the other hand, the Founding Fathers came from England which had a tradition of common law. Common law, as we are taught in civics class, is, quite literally, law made by judges. So, would the Founding Fathers be totally shocked that the courts have taken it upon themselves to pass judgment on the constitutionality of legislation? I don’t know.

Here’s the bottom line: judicial activism ain’t good, but legislative activism ain’t good either. When a court finds that a law is unconstitutional, it is, in effect, telling the government that it doesn’t have the power to make that law because that type of decision is reserved for the people. When a court takes away power from the government and gives it back to the people, that’s good. Even if a court “finds” rights not listed in the Constitution, that’s still good - more rights to the people equals less power for the government. By the way, the 9th Amendment says that the rights listed in the Constitution are by no means the only rights that people have. The eminent domain case totally failed in this regard because it gave government more power. Other cases, despite being labelled as judicial activism and criticized as being liberal, have accomplished this goal. The results in these cases were not good, but the principle of less power for the government was upheld. That’s an important principle.

[quote]endgamer711 wrote:

But how does Originalism help us deal with divining what the framers would have thought of various passages and their applicability in present times, if only they had known what we know now?

Certainly historical context helps us better understand their intentions. But since many of their intentions were simply to pragmatically stitch together (and keep stitched) a federation of its time, in what sense should their view of constitutional provisions supersede our own?

I’m not sure I like very much of what has been put on the back of ‘interstate commerce’, but in the end advancing technology has drawn the states and their fates ever closer together.

To sum up, I’m not sure ‘federalism’ is a word whose meaning doesn’t or shouldn’t change.

Rather than approach flag marriage or gay burning in the Constitution, I wish somebody would put together a convention to discuss what is federalism, what are states’ rights.

That would be my alternative to shooting the hapless messenger, i.e. the judiciary.

Let’s stop pretending every part of the Constitution works forever. But when we do amend that wondrous document, please dear Lord can we do it with some sense of esthetics?[/quote]

endgamer,

You have an unstated proposition with which I disgree – namely, that the Constitution has to have an answer for every problem. It doesn’t, and it can’t.

Sometimes the answer is relatively easy – internet commerce that reaches between states is interstate commerce even if they didn’t know what the internet was.

However, that’s not always the case. If there are problems that the current Constitution didn’t anticipate and cannot accomodate, that is why we have an amendment process. When there is an issue of first impression that doesn’t fall under the Constitution or its principles – or when “society” has changed its mind concerning what the Constitution meant when it was passed, then it should be amended.

Allowing 5 unelected judges out of a group of 9 unelected judges to circumvent that amendment process and give their own personal mores the force of Constitutional law isn’t a good solution. The amendment process is long because it represents a broad, large-scale consensus – if an issue doesn’t have that, it should stay in the realm of the normal political process, and redress for that issue should be sought from the legislature or the executive branch, as appropriate, not from the courts.

It’s only the case that the federal courts are the proper place for redress for a wronged individual if the Constitution authorizes the federal courts to provide that redress and Congress has included the area within their jurisdiction (except for certain items over which the Supreme Court has original jurisdiction). If the courts aren’t authorized, he has to get satisfaction in the political arena (or in state courts).

[quote]BostonBarrister wrote:
You have an unstated proposition with which I disgree

[/quote]

Nope, you read too much into what I wrote. Nice launching ramp though.

Anyhow, what about getting federalism spelled out, and we can forget these judicial approximations? Which was after all the main point of what I wrote.

[quote]BostonBarrister wrote:
When there is an issue of first impression that doesn’t fall under the Constitution or its principles – or when “society” has changed its mind concerning what the Constitution meant when it was passed, then it should be amended.
[/quote]

To clarify, I am not talking about direct issues of interpretation, but issues of application. The meaning remains the same, but the application may advance with advancing knowledge.

As I read the end of what you wrote, I gather the impression you believe the Schiavo case could never possibly have been redirected into the Federal courts by the Congress?

[quote]endgamer711 wrote:
As I read the end of what you wrote, I gather the impression you believe the Schiavo case could never possibly have been redirected into the Federal courts by the Congress?[/quote]

Not “couldn’t” – shouldn’t. THe federal government doesn’t have a general police power, and it would be unthinkable that it would if one were going by original intent – though apparently now, since everyone is happy to live under judicial oligarchy, Congress does have a general police power under the Commerce Clause after Raich.

[quote]
BostonBarrister wrote:
You have an unstated proposition with which I disgree

endgamer711 wrote:

Nope, you read too much into what I wrote. Nice launching ramp though.

Anyhow, what about getting federalism spelled out, and we can forget these judicial approximations? Which was after all the main point of what I wrote.[/quote]

Federalism was protected nicely under the original Constitution – its real death came with the direct election of Senators via the 17th Amendment. After that, there was no voice in the national government to protect states’ interests, and it’s been a downhill slide ever since then.

The other aspect of federalism that has been completely eviscerated is the idea that the federal government’s legislative power was NOT general – that the Commerce Clause actually only gave Congress lawmaking power with respect to items directly related to interstate commerce. Intrastate matters were beyond the pale. Two separate qualifiers, both of which have been read out of existence by the U.S. Supreme Court: “interstate” and “commerce.”

Now, apparently, that restriction is dead letter. And so, in most respects, is federalism – unless people make a big enough effort to get it back. It looks as if, going forward, federalism means that states and localities can pass laws on anything the federal government doesn’t care about, but any federal law overpowers any state law. It might not be precisely correct yet, but that’s the trajectory.

[quote]BostonBarrister wrote:

Not “couldn’t” – shouldn’t. THe federal government doesn’t have a general police power, and it would be unthinkable that it would if one were going by original intent – though apparently now, since everyone is happy to live under judicial oligarchy, Congress does have a general police power under the Commerce Clause after Raich.[/quote]

I understand the gist, but I’m a bit confused on this point. The entire FBI is hung from the Commerce Clause? Even when they are going after a civil rights violation? Or espionage?

They sure act like they were a general police power. Of course, now we have the Patriot Act.