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Three Lessons for the Great Debate About to Begin:
I recall very well the debates over the nominations of Robert Bork and Clarence Thomas to the Supreme Court. Both featured the most elevated public discourse over constitutional interpretation in my lifetime. Of course, both nominations were also marred by ugly personal attacks and false charges. For the upcoming nomination, we can expect both types of discourse. To that end, some may wish to review the debate I recently had with Cass Sunstein over at LegalAffairs.org. Cass and others such as Jeff Rosen have promoted the trope "Constitution in Exile" to describe those who favor enforcing the whole Constitution according to its original meaning. The alternative is to enforce only portions of the text according to whatever meaning yields "good" results.

It is useful to review this debate to see the difference in our approaches so one can better track and participate constructively in the forthcoming debate. My approach focuses on restoring portions of the "lost" Constitution that the Courts have long ignored--such as the Commerce Clause, the Necessary and Proper Clause, the Second Amendment, the "public use" portion of the Takings Clause, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. Cass consistently focused, not on the text of the Constitution, but on a list of results--either good results he favored preserving or bad results he contended that the fictitious "Constitution in Exile movement" wanted to achieve.

LESSON ONE: Watch the switch from a list of ignored textual provision to good and bad results.

This debate should not allowed to be turned into a debate over results. It should instead be a debate over constitutional method and the restoration of portions of the text that have long been discarded. This includes challenges to judicial conservatives who, like Justice Scalia, would continue to ignore the Ninth Amendment or Privileges or Immunities Clause because they fail to meet his standard for a "rule of law." Ignoring portions of the Constitution because they fail to conform to your theory of the "rule of law" is no different than ignoring portions that fail to conform to your theory of "justice."

LESSON TWO: Watch the switch from meaningful scrutiny to extremely deferential "rational basis" scrutiny, as a means of continuing to ignore portions of the text.

And by "ignoring" I include adopting an extremely deferential "rational basis" approach that yields all discretion to the legislative branches, as Justice Stevens explicitly and Justice Scalia implicitly recently did in the medical cannabis case when applying the Necessary and Proper Clause. This is a game that both "liberals" and "conservatives" can play. It is not "activist" for judges to demand of legislatures that they have a real and justified reason for restricting the liberties of the people--something more than mere assertion. Whenever legislatures need not meet any burden of justification whatsoever--e.g. Justice Stevens' approach in both Raich and Kelo--the scheme of federalism and limited enumerated powers is undermined.

LESSON THREE: Watch for an appeal to "precedent" to attack a nominee who may favor reviving the original meaning of portions of the text--e.g. the "public use" portion of the Takings Clause--that have been ignored for far too long.

Another technique for ignoring the text is to elevate the importance of past nonoriginalist judicial decisions in the name of "precedent." The "liberal" side of the Court has never accepted the "precedents" of Lopez and Morrison. Nor could "liberal" or "moderate" justice be counted on to accept any precedent that does not accord with the results that drive their approaches. For the same reason, a "conservative" (or libertarian) Justice should give little weight to nonoriginalist precedent that justifies ignoring portions of the text. It is the Constitution to which a judge (and Senator) takes an oath, not past decisions by the Supreme Court. The issue of precedent is very complicated, however. I explain some of these complications here.

On the other hand, you may expect nominees to deflect potential criticisms by embracing precedent to avoid the charge that they would revive now ignored portions of the text. Given that many originalists do favor adhering to precedent, this defense may be entirely sincere. To the extent, however, that a nominees is willing to elevate the past opinions of the Court over the text of the Constitution where the two clearly conflict, he or she would be abandoning anything like an originalist approach to interpretation. This would not be a good sign for the future. Inevitably selective reliance on precedent is one of the most common methods of avoiding the text of the Constitution when the text is an obstacle to achieving particular results--my definition of "judicial activism."

Let me offer as my hope for this forthcoming debate, the penultimate paragraph of my exchange with Cass:
Over the course of this week, Legal Affairs readers have been provided a preview of a great debate that lies ahead. As my final contribution to our discussion, let me express my hopes and aspirations for that debate. I hope that the political process upon which we rely to select Supreme Court Justices will not be thwarted by name calling, conspiracy mongering, or false claims about bad motives on either side. I hope that judicial nominees will not be presented with a laundry list of results intended to serve as a litmus test for ideological acceptability. I hope they will be asked instead about their judicial philosophy and their commitment to the rule of law. I hope that those who participate in this great debate will frame their arguments in language that clarifies the issues rather than obscures them. And I most fervently hope that the debate will not be conducted in a topsy-turvy newspeak that charges originalists with being insufficiently conservative and equates adhering to the rule of law supplied by the Constitution of the United States with activism or radicalism!
You can read the entire debate here.
Mark Olson (mail) (www):
Reading Federalist #76, it seems that questions concerning how the nominee interprets the Constitution are not relevant to the confirmation but the nomination process. The confirmation process was intended to screen out nominees deemed unfit due to "State prejudice, from family connection, from personal attachment, or from a view to popularity". Vetting nominees based on how they interpret the Constitution seems to me to be stealing the nomination process from the Executive by the Legislature.

Is this just another example of "Constitution in Exile"?
7.2.2005 1:08pm
arbitraryaardvark (mail):
Those are three good lessons, and are also applicable to the other lost constitutions - the state constitutions.
7.2.2005 2:04pm
SteveMG (mail):
This is an excellent primer.

A major problem for us, of course, is that we'll be at work and can't follow the debate as closely as the above guide would have us do. There's always C-Span if we wish to forgo sleep; but some of us do have employers who have some draconian rules about dozing at the office.

SMG
7.2.2005 2:10pm
Jake (mail):
What's the big difference between implementing natural law through the ninth amendment, and implementing natural law through the fourteenth amendment?

Also, what's the difference between arguing for policy results that you want, and arguing for a theory that has been tailor-made to produce the policy results that you want?
7.2.2005 3:47pm
Randy (mail) (www):
Jake:

Although I do not intend to get into a dialogue with readers in comments, you raise 2 good issues.

(1) Protecting unenumerated natural liberty rights is not "implementing natural law." And the Ninth Amendment applies to the national government, whereas the Fourtheenth Amendment limits the states. This is a much longer and complicated matter, of course.

(2) There are two responses to this point. First, if "the Constitution" means nothing more than "one's policy preferences" (given a policy preference method of "interpretation") then it is bootstrapping and simply falso to claim, as the Court and commentators do, that it is the Constitution that mandates their results, rather than the judges' policy preferences. And if all that matters is policy preferences, then it is not clear why judges should have a final say--or even any input. That would have been appropriate for a Council of Revision, but such was not adopted. What justifies judicial review is the assumption that there is a written constitution whose meaning is independent of the judiciary's policy preferences and that limits the power of other branches as well as the power of the judiciary itself.

Second, it is not at all fair or accurate to say that "originalism" is tailor-made to produce the policy results that I or anyone wants--or at least is should not be so if properly practiced. Originalism leads to major policy results of which I disapprove. I feel, however, that as long as I am advocating that others obey the Constitution where I do approve of the results, it is only fair for me to accept as constitutional (though objectionable) results of which I disapprove.

Of course constitutionalism is not an end in itself. Ultimately results matter. So does what a particular constitution says. If a particular constitution, properly interpreted, leads to too many seriously objectionable results, this is good reason to ignore or reject that constitution. This is the hidden position of many opponents of originalism. Ultimately, they do not like the results produced by the Founders Constitution (even as modified by the Fourteenth Amendment), but they do not wish to come out and reject it. They insist that they are "interpreting" and "following" "The Constitution" because their audience tends to like the Constitution.

And the founders thought, and I agree, that adhering to a written constitution, whose meaning remains the same until properly changed (in writing), leads to better overall results in the long run than letting legislatures do what they wish (which they had personally experienced at the state level), or letting judges freely substitute their policy preferences for those of the other branches. In this way, originalism is the means by which the structural advantages of a written constitution are obtained and preserved.

Finally and relatedly, a written constitution is needed to "lock in" a good meaning that will constrain those who are empowered by the Constitution to enact laws. If those who enact laws can define the limits of their powers, then the rights of the people will be greatly insecure. This is one of the reasons why the Kelo case struck such a nerve in the public. Essentially, the Court was saying that it would not police the outer boundaries of the power to condemn private property, but would trust local governments to do it in good faith. Many citizens do not trust local government, or any government, to define the scope of their own powers.

Is there much more to be said about all this? Of course. I refer those who are interested to Restoring the Lost Constitution: The Presumption of Liberty and to The Structure of Liberty: Justice and the Rule of Law.
7.2.2005 4:18pm
Robert Schwartz (mail):
"This debate should not allowed to be turned into a debate over results."

Dreamer. Results is all 99.9% of the population knows or cares about. Do you think Teddy Kennedy's gin addled brain can handle constitutional theory. Are you under the impression that Leahy or Dodd have anything going on between their ears?

Let us remember Teddy's famous borking:

"Robert Bork's America is a land in which women will be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens."

Just change the name, he won't have to learn any new lines.
7.2.2005 5:33pm
Jake (mail):
I ask questions during lecture classes, too, but never more than one follow up, so this shouldn't get tedious. Also, let me preface this by saying that I generally agree with you re: originalism (with some reservations on the ninth amendment), and I'm not trying to commit argument-by-obnoxious-question, but rather trying to discover good arguments that I can use to persuade others.

(1)
Unenumerated natural liberty rights seem to me to be a subset of natural law. They seem to carry with them the same set of problems (if everybody agrees on what they are, court enforcement is unnecessary; if everybody doesn't agree, in what sense are they a "natural" right?). Right now we have a court enforcing unenumerated natural law privacy rights under the 14th amendment, so I don't see how shifting to enforcing unenumerated natural law liberty rights under the 9th amendment is such a big improvement.

I can see the distinction in levels of enforcement if the 9th amendment doesn't get incorporated, but I don't see how it could be a serious substantive protection and remain unincorporated as long as the rest of the bill of rights is incorporated. If you want to undo incorporation in general, that's a whole different thing...

(2)
I apologize for the tailor-made crack, that was unfair. What I was trying to get at is, why should we prefer a value judgment that is made wholesale over one that is made retail? Even if you've accepted a package that includes things that you don't like, people will still make the charge that you only chose that package because it produces more results that you like than the other packages do.

Maybe the wholesale judgment produces the additional meta-benefit of increasing citizens' confidence in the judiciary, but the retail judgment could produce better case-by-case results. When the liberal commentators shift to the claim that their way of interpretation produces better results, I feel that an effective response has to show why the meta-benefits outweigh the supposed improvement in results, instead of simply dismissing their argument as unprincipled (which seems to be the tack taken in lesson one).
7.2.2005 5:37pm
Kevin Murphy (mail) (www):
Perhaps a better question than how to enforce emergent unenumerated rights is how to discover these new (unobvious) rights. Rather than focusing on the privacy issue, which has too much baggage, how would you deal with the potential gay-marriage right? Courts? Legislatures? State? Federal? The answer to that, it seems, would clarify how it is to be enforced (not to mention the degree of acceptance you have when you set about to enforce it).
7.2.2005 6:40pm
Daniel Chapman (mail):
Originalism is the only constitutional theory I've ever heard that can (in theory) measure the "accuracy" of a decision. Everything else requires the subjective beliefs of the Court. Textualism comes close, but the meaning of a text can change over the years, and frankly a hair-splitting literal interpretation will always produce absurd results.

I don't even see it as a matter of "choosing" a method of interpretation... no one's ever supplied another method that works!
7.3.2005 10:02am
Half Sigma (www):
You mention the "public use" clause as being a big part of the original meaning of the Constitution, however the Fifth Amendment was NOT INTENDED TO APPLY TO THE STATES, so according to original intent, the Court made the right decision in Kelo (even if for the wrong reasons).
7.3.2005 2:16pm
Challenge:
Sigma, but if the original intent of the Fourteenth Amendment was to apply some or all of the Bill of Rights to the states, then there is no folly in advocating original intent while criticizing Kelo.
7.4.2005 12:15am