Monday, September 1, 2014

A Brilliant Denunciation of Originalism

Following up on my post on law office history, during my research I came across this brilliant piece on why we should take originalism out behind the barn and shoot it.  Originalism was proposed by conservative legal theorists as a way of reigning in activist judges.  Instead of allowing judges to impose their own policy preferences, make them follow what was meant when the Constitution (or the relevant amendment to it) was enacted.  Simple. The problem has turned out to be that it does nothing of the kind.  The historical record is often far from clear, so instead of binding judges by history, originalism simply encourages law office history, i.e., cherry-picking historical evidence and citing it out of context to make a legal argument.
Or, as the author of the article says:
[H]istory shouldn’t be irrelevant to constitutional analysis. It can be a valuable tool when the historical record is fairly clear. . . . But the value of history to constitutional interpretation largely vanishes when the historical record isn’t clear – e.g., when it plausibly supports both interpretations. At this point, courts lack the institutional competence to decide which side’s cherry-picked history citations are more accurate. Judges aren’t historians. They haven’t been trained that way. They have no idea whether the subset of materials being presented is representative and sufficient and so on. Thus, when it’s close, courts need to move on to other interpretative methods.
I will concede history can stop a lot of judicial activism that we have experienced.  The author says that basic history shows that references to "domestic tranquility" (or "domestic violence") clearly refer to insurrection and rebellion and not to wife-beating.  I will add that the historical record provides no support for constitutionalizing the issues of abortion or same sex marriage.  But then again, one could figure that out simply by reading the text of the document.

This leads to another point the author seeks to make.  Appeals to history and originalism reduce, rather than increase, the Constitution's accessibility.  The Constitution is written to be accessible to enlightened layperson (i.e., a moderately educated person with no special training in law or history, who has nonetheless read the Constitution itself).  It uses remarkably simple and accessible language with very little legalese.  Supreme Court interpretations of it should be accessible to an enlightened layperson as well.  IMHO (perhaps not shared by the author) that rules out using the Constitution to uphold abortion or same sex marriage, since it says nothing whatever on either subject.  But the author is quite right to point out that if interpreting the constitution requires a detailed study of conditions in the 17th and 18th Century, it ceases being accessible to the general public, or to lawyers and judges, for that matter, and becomes knowable only to professional historians.  "[D]ebates about text and structure and policy and institutional allocation of power are least potentially accessible to the public." More controversially, he argues that being bound by the historical record prevents judges from taking policy into account.  I am not altogether sure I agree.  I basically share the opinion that policy making should be left to the elective branches of the government and not the courts.  On the other hand, to the extent that originalism means that all branches of the government must address the issues of 1787 rather than the issues of today, or that the purpose of the Constitution is to ensure that if anything new and unexpected comes up, the government's hand will be tied and it will be forbidden from dealing with it barring a constitutional amendment, then the point is well taken.

Actually, the warning that mere appeals to originalism are not sufficient to prevent judicial activism should have been apparent for a long time.  Just read the Dred Scott decision. Often I think that debates on the role of judges should have their own equivalent of Godwin's Law -- whoever first compares an opposing viewpoint to Dred Scott loses.  Conservatives use Dred Scott as a code word for Roe v. Wade.  Robert Bork's The Tempting of America holds up Dred Scott as the first example of substantive due process and thus the precursor of all judicial activism.  And these accusations are justified to the extent one means that the Scott is a terrible example of what happens when judges decide the outcome in advance based on their own policy preferences and then seek a rationalization for them.  But it is also a prime illustration of why originalism will not prevent such activism.  Justice Taney's reasoning rests almost exclusively on originalism:
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
A better expression of originalism could hardly be found.  Taney goes on to say:
It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
Taney then goes on to cherry pick every historical source he can find, from the Articles of Confederation up through 1848 to show that that black people had none of the rights of citizenship when the Constitution was written and were scarcely even considers as persons.  It is as egregious an example of law office history as one could possibly ask for.  And it ends with as fine a statement of originalism as anyone could ask for:
If any of [the Constitution's] provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.
Clearly, then, lip service to originalism does nothing to restrain activist judges.  And, indeed, in Scott, one can see why they felt the need to rely so heavily on originalism.  The Supreme Court was making a morally indefensible argument.  Unable to make any plausible case on the merits, the Supreme Court passed the buck to an earlier generation, claiming that its hand were bound by their decisions.  Thus if Dred Scott offers any plausible argument it is this -- if your case cannot be made on the merits, maybe you shouldn't be making it.

Oceana Has Always Been at War with Eastasia

One of the most striking things about people most vociferously calling for some sort of military intervention against ISIS -- they have a strong overlap with the people most vociferously calling for intervention to bring down Assad in Syria just last year, and ignoring warning that bringing Assad down would most likely benefit -- well, not ISIS which had not yet been formed, but definitely people a lot like ISIS, who definitely did exist at the time.  Such fears tended to be dismissed.

The sight of people who just last year called for intervention on one side of a civil war now calling for intervention on the other side puts in mind nothing so much as 1984.  The world is divided into three great powers, Oceana, Eurasia, and East Asia that are in a constant state of war and shifting alliances. We see things from the perspective of Oceana (which includes England).  Invariably Oceana is always allied with one of the Asian powers and at war with the other.  (Whether Eurasia and East Asia ever join forces against Oceana is not addressed).  Every few years, the alliances change and suddenly Oceana goes from being at war with Eurasia and allied with East Asia to being at war with East Asia and allied with Eurasia.  Whenever that happens, all the back records have to be changed to deny the shifting alliance and make it appear that Oceana has always been at war with East Asia, and before long everyone (including most people who altered the records) starts believing it.

As recent events have shown, this is depressingly plausible. It was presumably inspired by the Nazi-Soviet Pact, when the Soviet Union went overnight from being allied with Nazi Germany against the Western Allies to being allied with the Western Allies against Nazi Germany.  And, of course, the Pact came as a complete shock, since up until then the two countries had been mortal enemies.
Nor did it begin with the Nazi-Soviet Pact.  Try reading about the countless wars that went on in Europe in the 17th and 18th Centuries over the balance of power.  The shifting alliances are enough to make your head spin.  This is strongly hinted at in the late 18th Century poem The Battle of Blenheim, about the War of Spanish Succession in the early 18th Century.  (Try reading an account of the war and see if you can straight all the Eurasia-East Asia moments).

"My father lived at Blenheim then,
Yon little stream hard by;
They burnt his dwelling to the ground,
And he was forced to fly;
So with his wife and child he fled,
Nor had he where to rest his head.

"With fire and sword the country round
Was wasted far and wide,
And many a childing mother then,
And new-born baby died;
But things like that, you know, must be
At every famous victory.

"They said it was a shocking sight
After the field was won;
For many thousand bodies here
Lay rotting in the sun;
But things like that, you know, must be
After a famous victory.

Even in the Napoleonic Wars, when there were real ideological and social issues at stake, the frequency of shifting alliances is shocking.  And, well, consider the Nazi-Soviet Pact.

In short, our current Eurasia-East Asia moment is not so extraordinary  Quite the contrary, it is all to ordinary.  But that doesn't mean that we have to let our leaders get away with it.