Sunday, February 14, 2016

Antonin Scalia and contitutional originalism

The death of Associate Justice of the Supreme Court of the United States Antonin Scalia has thrust into public conversation his dedication to the constitutional doctrine of “Originalism.”

Because of the crucial importance of filling Justice Scalia’s seat on the High Court with another Originalist, the American public must be enlightened about what that doctrine is, why it is the only legitimate method of constitutional adjudication, and thus why the next Supreme Court justice must be a rock-ribbed originalist.

In my 2012 book The Supreme Court Opinions of Clarence Thomas, 1991-2011 [Second Edition] I wrote at length about Originalism. I reprint a portion below (having deleted the extensive Chapter Notes.)

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Although the principle of originalism had been around for quite some time, not until 1985 was it formally presented to the organized bar. In July of that year, Attorney General of the United States Edwin Meese III delivered an historic speech to the American Bar Association at its meeting in Washington, D.C. Meese’s speech caused a constitutional explosion whose reverberations are still being felt, most notably in President George W. Bush’s appointments of John G. Roberts, Jr., to be Chief Justice of the Supreme Court of the United States and Samuel Alito to be an associate justice.

In his address to the ABA, Meese reminded the assembled lawyers and judges of “the proper role of the Supreme Court in our constitutional system”:
The text of the document and the original intention of those who framed it would be the judicial standard in giving effect to the Constitution.
After surveying the Court’s October 1984 term’s decisions in three subject areas — federalism, criminal law, and religion — Meese asked:
What, then, should a constitutional jurisprudence actually be? It should be a Jurisprudence of Original Intention. By seeking to judge policies in light of principles, rather than remold principles in light of policies, the Court could avoid both the charge of incoherence and the charge of being either too conservative or too liberal.
A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection. This belief in a Jurisprudence of Original Intention also reflects a deeply rooted commitment to the idea of democracy. The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is why it is the fundamental law. To allow the courts to govern simply by what it views at the time as fair and decent, is a scheme of government no longer popular; the idea of democracy has suffered. The permanence of the Constitution has been weakened. A constitution that is viewed as only what the judges say it is, is no longer a constitution in the true sense.
Disabusing his audience of the notion that a Jurisprudence of Original Intention was some newfangled fad, merely an interpretive theory du jour, the Attorney General adverted to the words of legendary Supreme Court Justice Joseph Story, written in the nineteenth century, which were applicable not only to the Constitution generally but also to statutory interpretation in particular:
In construing the Constitution of the United States, we are in the first instance to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole and also viewed in its component parts. Where its words are plain, clear and determinate, they require no interpretation.... Where the words admit of two senses, each of which is conformable to general usage, that sense is to be adopted, which without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design of the instrument.
A few months later, the Attorney General elaborated his theme:
In recent decades many have come to view the Constitution—more accurately, part of the Constitution, provisions of the Bill of Rights and the Fourteenth Amendment—as a charter for judicial activism on behalf of various constituencies. Those who hold this view often have lacked demonstrable textual or historical support for their conclusions. Instead they have “grounded” their rulings in appeals to social theories, to moral philosophies or personal notions of human dignity, or to “penumbras,” somehow emanating ghostlike from various provisions—identified and not identified—in the Bill of Rights.
Meese was referring to the Supreme Court’s liberal justices, and their allies in academia and the legal profession, who worship at the altar of a “Living Constitution.” “One Supreme Court justice,” Meese noted, “identified the proper judicial standard as asking ‘what’s best for this country.’ Another said it is important to ‘keep the Court out front’ of the general society. Various academic commentators have poured rhetorical grease on this judicial fire, suggesting that constitutional interpretation appropriately be guided by such standards as whether a public policy ‘personifies justice’ or ‘comports with the notion of moral evolution’ or confers ‘an identity’ upon our society or was consistent with ‘natural ethical law’ or was consistent with some ‘right of equal citizenship.’”

The Attorney General could have effectively quoted the “Living Constitution’s” high priest, the late Supreme Court Associate Justice William J. Brennan, Jr. “[T]he Constitution,” according to Brennan,
embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. * * * When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is ... the community’s interpretation that is sought. * * * But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. * * * Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.
Not content to loose this blather, Brennan, in a not-so-veiled reproach to originalists, referred to
those who find legitimacy in fidelity to what they call “the intentions of the Framers.” In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility.
Twenty years after Meese’s remarks, in an article for a leading Internet website— — entitled “Originalism Above All Else,” Steven Geoffrey Gieseler explained originalism this way:
Originalism alone produces a body of law evincing the will of America’s citizenry. America has assented to the Constitution as the nation’s supreme law, altered only by its own process of amendment. Every day that it remains unchanged, it is ratified again as our governing document. Any deviation from the Constitution that occurs outside of its own terms not only lacks the consent of the governed, but violates it. This includes deviation by judicial fiat. * * * An originalist judge’s opinions are moored to the intent of the drafters of the Constitution and its amendments, not the faddish slogans of the day. His or her own predilections are subjugated to our nation’s founding papers. This results in a coherent and consistent interpretation of laws. More importantly, originalism results in a canon blessed with America’s consent via its adopted Constitution.
In 2005, Robert H. Bork, former law professor, judge of the United States Court of Appeals for the District of Columbia Circuit, and cruelly defeated nominee for a seat on the Supreme Court of the United States, observed that
For the past 20 years conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that the judge must discern from the relevant materials—debates at the Constitutional Convention, the Federalist Papers and Anti-Federalist Papers, newspaper accounts of the time, debates in the state ratifying conventions, and the like—the principles the ratifiers understood themselves to be enacting. The remainder of the task is to apply those principles to unforeseen circumstances, a task that law performs all the time. Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges.
In other words, the concept of a “Living Constitution,” so central to liberal jurisprudence and evident in so much Supreme Court adjudication, means no Constitution at all.

A “Living Constitution” is anti-democratic because it removes from the public forum and from those politically accountable, and thus from the electorate itself, important issues of social, economic, and other policy, and reposes those issues in nine unelected philosopher kings and queens appointed for life.

There is no worse example of the “Living Constitution” in action than the case of Griswold v. Connecticut, to which Attorney General Meese alluded when he spoke of “penumbras.”

A Connecticut statute provided that “[a]ny person who uses any drug, medicinal article or instrument for the purpose of preventing contraception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned”—proving, once again, that in a democracy popularly elected legislators and governors can enact outrageous laws.

Because the federal Constitution does not prohibit the states from enacting outrageous laws—indeed, the Tenth Amendment expressly recognizes state power to enact laws, implicitly allowing them to affect public health, welfare, safety, and morals—the Warren Court had to find some other way to hold the Connecticut statute unconstitutional. The chief justice assigned the task to Associate Justice William O. Douglas, a darling of America’s liberals.

In a barely three-page opinion, Douglas prospected his way through the Constitution. Although what he found was fools’ gold, it glittered enough to satisfy six more of his colleagues.

According to Douglas, prior cases of the Supreme Court “suggested that specific guarantees in the Bill of Rights”—dealing with speech, press, association, quartering soldiers, search and seizure, self-incrimination, and the education of one’s children—“have penumbras, formed by emanations from those guarantees that help give them life and substance.” On the basis of these “penumbras” and “emanations”—but not a shred of constitutional precedent or other authority—the Warren Court simply invented a constitutionally guaranteed “right of privacy.”

For the seven-justice majority, Douglas wrote:
We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage [about which the Connecticut law said nothing] is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred [said the oft-married Douglas]. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Despite this pretentious mumbo-jumbo, or perhaps because of it, neither Douglas nor any of his six colleagues had an answer to a simple question asked in Justice Stewart’s dissent (in which Justice Black joined): “What provision of the Constitution ... make[s] this state law invalid? The Court says it is the right of privacy ‘created by several fundamental constitutional guarantees.’ With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.”

Despite the clarity of Stewart’s persuasive dissent — and because the Warren Court majority wanted to rid Connecticut of what Stewart rightly characterized as an “uncommonly silly law”—the Griswold majority simply invented an ersatz “right to privacy.” In a barely three-page opinion, this anti-federalism judicial construct would later be used in Roe v. Wade as a constitutional rationale for invalidating the anti-abortion laws of virtually every state.

Thus, the notion of a “Living Constitution,” the opposite of originalism, is not only an anti-democratic and intellectually dishonest way to interpret our Constitution and federal statutes. It is also demonstrably capable of manufacturing dangerous ersatz “rights” that impose tremendous moral, social, economic, and political costs on this nation and its citizens.

It is Griswold’s interpretive methodology — imposed on the basic Constitution, on the Bill of Rights, on the Fourteenth Amendment, and on federal statutes — and the invention and institutionalization of ersatz “rights,” that has made possible the decades-long metastasis of the “Living Constitution’s” malignant doctrines into most areas of American constitutional and statutory law.

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To paraphrase the penultimate paragraph of my Introduction to The Supreme Court Opinions of Clarence Thomas, 1991-2011 [Second Edition],

[I]n the name of our Founding Fathers, like Justice Clarence Thomas Antonin Scalia spent decades consistently and bravely fighting with mind and pen against this anti-constitutional disease.

The next President of the United States cannot allow Justice Scalia’s battle to have been for naught.