Convictions : originalism

Will Heller Implode?

Eric Posner — Mon, 30 Jun 2008 03:25:00 GMT

Revolutionary ideologies always look good until they prevail; then their latent seeds of destruction sprout and conflagrate. Such is the case with originalism, and Heller provides an opportunity to see this process in action. To see why, imagine that, to the surprise of everyone, Clarence Thomas retires from the court next year and President Obama replaces him with a moderately liberal lawyer whom I will call X. In X's first term, another Second Amendment case reaches the Supreme Court. X reads the majority and dissenting opinions of Heller and decides that Justice Stevens' dissent makes the better originalist case. He writes a new majority opinion that adopts Stevens' dissent and overturns Heller.

What is the Heller-supporting originalist to say about this behavior? He can argue until blue in his face that Scalia was right and Stevens was wrong, but Stevens' account was plausible enough to obtain the support of three other justices and various knowledgeable commentators. What he can't plausibly argue is that X should have respected the Heller precedent. After all, if originalism means anything, it must be that precedents should be given no, or little, weight. This idea is the source of originalism's power and radical nature, but it also ensures that originalist opinions will, as precedents themselves, be short-lived. And because the constitutional text is ambiguous and the contemporary setting is remote from our understanding, it will always be as easy for liberals as for conservatives to generate whatever results they want in the originalist idiom, which guarantees that the triumph of originalism, if that is what Heller represents, will have no particular political implications for American government that cannot be traced to the ideological leanings of whoever happens to sit on the Supreme Court. Policy and political judgments will continue as before muffled underneath a new blanket of rhetoric. That faint sound you hear is laughter echoing in the tombs of the legal realists.

Justice Scalia, aware of this problem, calls himself a "faint-hearted" originalist and acknowledges that certain precedents must be obeyed. But which? Why should his Heller opinion constrain a future liberal justice who thinks that its originalist interpretation is wrong? If the answer is that this justice should follow it just because Scalia was there first, then it is inevitable that, as precedents reflecting good-faith but erroneous interpretations of original sources or bad-faith manipulations of them pile up, doctrine will eventually diverge from origin, and originalism will become moot. If the answer is that he shouldn't, then precedents will last only as long as the current majority on the Supreme Court, and the Heller precedent, too. Either way, originalism cannot last.

Originalism Wounded! Justice Scalia Wanted For Questioning

Doug Kmiec — Thu, 26 Jun 2008 15:44:00 GMT

"Wrong, All Wrong," said Edmund Randolph about the handiwork of John Marshall in Marbury, but "no man in the country knows why or wherefore." The originalist mistake of Heller is much more patent, and it is sad to think that a method of interpretation so well advocated by Justice Scalia should be wounded by his own hand....(read more)

Another guest post from Richard Schragger at UVA

Dahlia Lithwick — Tue, 01 Apr 2008 18:34:00 GMT

Rich Schragger responds to Jack Balkin:

Because Jack was so kind as to respond to my prior post, I thought I’d pile on once more. I must admit that I am still a bit puzzled by Jack’s line between prescription and description. Jack’s account of living constitutionalism as a system seems again to conflate is and ought – in that sense it is quite panglossian. His analogy to the market (and his embrace of “structure”) is instructive; as long as the system is working, all is well with the world. But that seems to me to be a defense of constitutionalism, not a defense or a specific articulation of a constitutional theory. Indeed, it seems to me to be a defense of the rule of law, which is also fine, in that it gives us reasons for why we should consider decisions by a constitutional court “law.” But I’m still not sure what follows from an account that understands constitutional change as a process that turns politics into law over time. From what I can tell, such a process is legitimate not because it enhances certain basic values, or because it is a correct reflection of democratic will, but because it works.

In other words, Jack’s account (like many process accounts of constitutional legitimacy) needs to rest upon some more foundational value. For Jack, the system is legitimate if it “preserves rule of law values, maintains the benefits of constitutional government, and is roughly responsive to democratic politics.” I’m not sure exactly what this means, though. I assume that Jack would say that our current constitutional system achieves roughly these ends, but did it during slavery, or before women got the vote? In a world of Dred Scott, does one have a legitimate system of constitutional government? How would one know, unless the mechanisms of legal order had collapsed altogether, or the system had become so infused with corruption that it was untenable, or had become so evil that it was morally indefensible?

For those of us who believe that a constitutional regime is legitimate when it advances certain ends, the fact that politics will –as a systemic matter – turn into law over time is not enough. “Law” must be consistent with (some set of) constitutional commitments; it cannot simply be the name we give to political judgments (filtered through professional norms) that produce a roughly functional “rule of law” system.

As for living constitutionalism, it doesn’t seem to me that it fails if it doesn’t account for constitutional change. The tradition of common law adjudication has always “kept up with the times” with little loss of legitimacy. The idea of reasoning from general principles to particular outcomes in light of new evidence and new technologies is deeply embedded in the Anglo-American legal tradition. Whether a court is appropriately engaged in such an enterprise will turn on its articulation and defense of the general principles themselves. Originalism sometimes offers the false hope that we can put aside our differences about the content of those principles. By asserting that the framers “intent” takes care of all disputed questions and the court need only to “discover” it, originalism gives the appearance of judges behaving neutrally and lets them avoid articulating and defending their particular constitutional commitments. Both insiders and outsiders to the constitutional system can critique individual judicial opinions on that basis--which is what I took Dahlia to be doing when she expressed concern about the Justices's lack of consistency in the Heller case.

Will To Power

Adam J. White — Fri, 21 Mar 2008 03:22:00 GMT

George Will touched a nerve among conservatives today. In his new column, he called for judicial intervention to thwart local regulations limiting dancing at a restaurant, in the name of the Fourteenth Amendment. This embrace of judicial activism certainly didn't please my friends Matt Franck, Ed Whelan, or Steve "Feddie" Dillard.

Steve and Ed seemed a bit surprised by Will's position; I must say, though, that I find it fairly consistent with Will's prior writings. Will's view of the role of the courts is no different from his view of the role of government generally his primary concern is that government should minimize interference with personal liberty (particularly on matters of speech). At the same time, he he opposed judicial disruptions of well-established societal institutions. (Thus, when the Supreme Court ruled in the VMI case, he famously decried "our robed masters.") Can these two priorities come into conflict? Of course. I've not seen Will wrestle with that point.

Even though (or perhaps because) his own instincts are less-than-systematic, Will loves to pick fights with conservatives on questions of the role of the judiciary. He is not a fan of "originalism"; he associates it with the Dred Scott decision and the Alien and Sedition Acts. He seems to go out of his way to accuse conservatives of celebrating a brand of "judicial restraint" that is inconsistent with judicial enforcement of the Takings Clause; he accuses conservatives of preaching "dogmatic majoritarianism."

Quite obviously, I have a few qualms with Will's arguments. That said, I won't go so far as to say that his generally-libertarian views aren't "conservative." They certainly don't constitute the current maintstrean modern American conservative jurisprudence; that mantle belongs, as we all know, to a Scalia/Thomas-style Originalism. Nevertheless, Will's modified libertarianism is a conservative jurisprudence, as are popular constitutionalism, "Lochnerianism" (to butcher a term), and perhaps others.

An unoriginal thought about Heller

Diane Marie Amann — Fri, 21 Mar 2008 00:30:00 GMT

Musing on the oral argument in Heller, which I just found time to digest (check out the read-along-picture-book-like function at Oyez.org):

Anyone else struck by the oddity of an originalist focus with regard to the existence vel non of an individual right, followed by a 20th century fast-forward with regard to application? On the 1st point, nearly all (though not all) Justices spent the 1st third of the argument plumbing what words in the 2d Amendment used to mean, as far back as 1689. Then, at p. 40, Justice Antonin Scalia: "And yet we've never held that simply because it was pre-existing and that there were some regulations upon it, that we would not use strict scrutiny. We certainly apply it to freedom of speech." Litigants and Justices alike -- with the notable exception of Chief Justice John G. Roberts, Jr. (p. 44) -- seemed to accept that some "level of scrutiny" applied.

No great thoughts here about what the Court ought to do, but was struck by this juxtaposition in 1 case of discourse from 2 eras.