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Disconnect on the Role of the Courts.

I am struck, watching the hearings, at the complete disconnect between the criticisms of many of those opposing Judge Roberts and a cogent view of the role of the courts. It seems that many of the criticisms are policy based — x or y rulings would lead to bad RESULTS — and make no reference whatsoever regarding whether such results are in fact the correct interpretation of the law (or the Constitution). Judge Roberts's repeated point was that he was committed to the law, and not to a political agenda, yet most of the criticism seems to be that he lacks a particular favored agenda on things like civil rights, the environment, etc. But certainly the critics cannot have it both ways, pissing and moaning that he might reject a substantive conclusion that they favor, yet demand that he not bring his personal views into the judging process. Unless they think that he will misinterpret the law in a way that follows his allegedly retrograde views and opposes their more "enlightened" views, it seems that their criticism should be about the laws as written, or the Constitution itself, and not about the jurist who interprets them faithfully. Demanding a Justice that would distort the laws to serve a particular end, be it civil rights, the environment, or what have you, is basically demanding a jurist who would be dishonest and violate his oath of office. Judge Roberts has naturally refused to be goaded into such silliness. The fact that folks like Kennedy and Schumer and Durbin keep settting that up as the test for their willingness to support him is appalling and speaks to the bankruptcy of their philosophies of government. (Not to be biased, several Republicans also seem to fall into the same exact trap regarding abortion, flag-burning, and the pledge of allegiance. They seem to think that the fact that they do not LIKE the results of various cases has something to do with whether they were rightly decided under the laws and the Constitution, and seem to think that their strong emotions on such issues should have some influence on Judge Roberts's future rulings. They are, of course, mistaken and equally suspect in their philosophies of government.)

In any event, I think Roberts comes out of this looking like the consumate jurist who knows precisely where his duties and loyalties must lie — to the law and the Constitution. Most of his critics come off looking like they are pandering to folks who don't know about or don't care about the proper functioning of the courts, and most of the Senators just come off looking ridiculous. It is particularly ironic to hear the demands of Senators (most notably Specter) that they not be treated like children when they seem so intent on acting like children. If they had the slightest inclination to follow the Constitution on their own accord, and to take seriously the limitations on their powers, they would not need to be rebuked quite so often and perhaps when the Court was forced to overturn some piece of legislation they would get more slack for an honest disagreement or mistake rather than whacked on the wrist for making a power grab.

Related Posts (on one page):

  1. Disconnect Part 3.
  2. Disconnect Part 2.
  3. Disconnect on the Role of the Courts.
Jake:
Aren't these substantive criticisms consistent with the worldview expressed in Tushnet's quote that the first test of any theory of constitutional interpretation is that it justifies Brown v. Board of Education?

I agree with the critique, but I don't think that the view denounced is limited to Senators...
9.15.2005 4:26pm
Goober (mail):
Your criticism is dependent, as I'm sure you're aware, upon the assumption that there is a sole "correct" interpretation of the Constitution, and the correctness of that interpretation is independent of the results of such an interpretation. You may as well have said that, rather than ask whether the nominee would vote to ban, say, school segregation, the Senators ought to inquire as to whether the nominee's interpretation of the 14th Amendment is correct. That the questions actually asked are harder ones does not change the odd nature of your argument.

Oh, and it's question-begging to argue that a judge who would "distort the laws" is dishonest and dishonoring his oath of office. Yes, distortion is dishonesty, and the judge will take an oath to faithfully uphold the laws. But you haven't shown any more than that.
9.15.2005 4:35pm
SimonD:
I agree with all of this. It was almost painfull to watch Dick Durbin this morning, asking Roberts about his level of sympathy for the little guy, and when Roberts explains that when the Constitution says the little guy wins, then the little guy wins in his court, and when the constitution says that the big guy wins, then the big guy wins in his court, and Durbin just sits there shaking his head with a kind of vague sadness and distaste, as if Roberts has just opined that eating babies is a fun and profitable way to spend an evening.

It just goes to show how utterly standardless substantive due process really is, which is why I'm deeply disturbed that Roberts has explicitly bought into that doctrine during these hearings. What potential "liberties" are not protected under substantive due process, and why? Why shouldn't abortion be protected under substantive due process if anything else is? What, other than the imagination and preferences of the judge in question, is the criterion for deciding which liberties are and are not protected?

Scalia is absolutely right. When you buy into a doctrine that permits Judges to make up rights out of thin air, it will destroy the confirmation process, because each side will want Judges who find the rights that they want in the constitution. This pernicious doctrine is corrupting the court, the law, and by necessity, the nomination process.
9.15.2005 4:39pm
Ken Willis (mail):

...the assumption that there is a sole "correct" interpretation of the Constitution,...


There certainly is a sole interpretation that is within a range of reasonableness. To say that the pledge of allegiance is unconstitutional, for example, falls outside any reasonable range of correctness because there is neither any evidence that any of the original words of the Constitution were considered to have any bearing on the issue at the time the words were written, nor is there any historical basis for this new and strange interpretation.
9.15.2005 4:43pm
Erik Jaffe:
Jake, if I sought to denounce everybody with dubious views on the role of the courts and the Constitution the post would have been epic in scope and length. For brevity, you can take my indictment to apply to the named parties and those unnamed parties with similar philosophies.
9.15.2005 4:47pm
KenB (mail):
I suspect that the senators' apparent misunderstandings are shared by the bulk of the electorate. Relatively few people seem to be able to distinguish between a "correct" result and a "desired" one. I suspect that even those senators who understand this may feel that it would be politically preferable to pretend otherwise.
9.15.2005 5:05pm
Observer (mail):
It is true that many lawyers like Judge Roberts believe that "the correctness of [a Constitutional] interpretation is independent of the results of such an interpretation." Sadly, liberal lawyers have for the most part abandoned any effor to find a jurisprudence that is value neutral and instead openly proclaim their allegiance to a results-oriented jurisprudence. This is the only way to explain Sens. Schumer and Biden. Whatever their motivations for doing so, one result has been to deeply discredit and weaken the authority of the courts.
9.15.2005 5:05pm
Vijay:
What I learned from the confirmation hearings:
1) Roberts rejects Lochner v. New York
2) Roberts believes that there are unenumerated rights
3) Roberts believes in substantive due process
4) Roberts believes the Constitution provides a right to privacy, though he did not articulate the scope of this right
5) Roberts values precedent and believes in judicial modesty
6) Roberts thinks Brown was correctly decided and accepts Bolling v. Sharpe

Taken together these help illustrate the boundaries of Roberts' jurisprudence. They do not indicate how he would come out in a particular case, but affirm that he is not an "activist" in the mold of Janice Rogers Brown or Earl Warren.

Perhaps we could have condensed the hearings to 6 to 8 questions. But I believe the "childlike" prodding by senate democrats was necessary to extract this basic information from Roberts.
9.15.2005 5:07pm
SacSays (mail):
The most imporant point to me in this post is the word "disconnect" in the headline. Senators, like other elected legislators are always subject to the political passions of the moment, including excessive sympathy for some named individual or group of individuals. Such emotionalism should not affect a judge's decisions. In fact, federal judges are not elected, and serve as long as good behavior warrants precisely to serve as a check on political passions.

Much of the discussion (or, more accurately, posturing) in these hearings was a clear disconnect between those two quite different job descriptions. Too many of the senators seemed to assume that the judge's job would be like theirs.

It is to Judge Roberts' credit that he held his own in this conversation where two different and incompatible languages were being spoken.
9.15.2005 5:13pm
magoo (mail):
Erik -- Since you specifically mentioned the environment, it might be worth noting for the record that neither Carol Browner's testimony nor the ltr from the national green groups opposes Judge Roberts, suggets he should be voted down, or uses the environment as a result-oriented litmus test. Carry on.
9.15.2005 5:23pm
TNugent:
With the pledge case in the news (the stupid question pledge case, not one with any real constitutional significance), it's timely to re-read Justice Frankfurter's dissent in the last pledge case that actually meant something--Barnette, in 1943. Frankfurter held the quaint belief that responsibility for constitutional interpretation did not fall exclusively on unelected, life-tenured judges, but was also within the charge to our legislators, who make their own interpretation as to the constitutionality of each law they pass. His refusal to strike down W.Va.'s compulsory pledge recitation law was based on this sort of humble deference to our elected legislatures, and he voted not according to his policy preference, but to what he viewed as his larger duty to uphold the constitution. Justice Rehnquist took a similarly humble approach in his dissent in Roe v. Wade. Early indications are that Roberts, who has a wit that brings Robert Jackson's writings to mind, will be this sort of judge. And he's using that wit, along with what seems to be a vast reserve of patience and self-discipline, to turn the confirmation hearings into the Dems' joyride in Fat Ted's Oldsmobile, only this time, Durbin and Biden also get turns behind the wheel. Their party is semi-conscious in the passenger seat -- guess who won't make it out when the Olds goes for a swim?
9.15.2005 5:25pm
Bob Davis (mail) (www):
The real question is judicial philosophy, and we are lucky that those who know him best all agree that he is a very conservative, tho' not quite strict constructionist, jurist who will likely overturn Roe v. Wade. I wish he was more like the originalists who would take a strict view of property rights and overturn environmental regs like the endangered species act and those who would not just allow, but require letting prayer back into the schools along with ID. But you go to court with the jurists you have.

a modest experiment
9.15.2005 5:26pm
Lab:
Some "results" are simply unnaceptable to the American public, regardless of the theories invoked to justify them.


We went through this back in 1930s the last time around.
9.15.2005 5:39pm
Scott Pearson (mail):
Are you the same Erik Jaffe who did NDT at (I believe) Dartmouth?
9.15.2005 5:46pm
Non-originalist (mail):
Ken Willis writes:

falls outside any reasonable range of correctness because there is neither any evidence that any of the original words of the Constitution were considered to have any bearing on the issue at the time the words were written, nor is there any historical basis for this new and strange interpretation.

Ignoring arguendo the standard critique that a group of politicians chooses words as a political compromise and cannot possibly have a unified intent, where is the evidence that the Framers intended an originalist interpretation? Somehow that has been left out of my law school's curriculum....

As a side note, I'm amused to learn that non-originalists are not only wrong but unreasonable.
9.15.2005 5:48pm
RogerA (mail):
As a lay person in the law, I confess to not understanding much of what the posters have said.. But I do understand the basic notion that there are policy considerations and legal considerations and the two are not connected. I am sure this is a naive approach from a citizen, but I expect the executive and legislative branches to deal with policy and the judicial branch to deal with the legality of the legislation and enforcement. I do NOT want a judge to deal with policy.
9.15.2005 5:56pm
Bob Davis (mail) (www):
Legislative branch also has to deal with legalities - they're not supposed to be passing unconstitutional laws, but they do sometimes because they know they'll be overturned. Congressmen do swear to uphold the constitution after all.

That's why there's a move to hold judges accountable by not letting them overturn all of congress's laws. If congress says something is constitutional the US system before Marbury said that was enough.

a modest experiment
9.15.2005 6:14pm
SimonD:
Repetition of the standard nonsense that originalism = original intent by "Non-originalist":
Ignoring arguendo the standard critique that a group of politicians chooses words as a political compromise and cannot possibly have a unified intent, where is the evidence that the Framers intended an originalist interpretation? Somehow that has been left out of my law school's curriculum....
Most serious originalists - and even Robert Bork - have rejected original intent for nearly twenty years. Somehow, the implication of Scalia spending almost half of A Matter of Interpretation explaining why legislative intent is irrelevant seems to have entirely gone over the heads of most of his detractors, including at least two who wrote replies in that book.

Quoth Nino:
"The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."
The reason that it bothers me is that original intent - which does actually exist as a theory - is an absurd and contradictory position that has been roudly repudiated by virtually every reputable originalist since the mid-80s. But here's the clever thing: because it's one branch of originalism, people like Jack Balkin can write cleverly duplicitous articles on Slate that ignore the fact that saying original intent IS originalism is like saying "sport involves hitting balls with bats". Sure, there are specific SPORTS that do involve HITTING BALLS WITH BATS, and sure, HITTING BALLS WITH BATS describes some sports, but the two aren't synonyms, and neither are originalism and original intent.

Ah, but here's the trick: if you can con people into thinking originalism and original intent ARE synonyms, then you can spend the rest of your article castigating originalism in general using arguments which are very valid against original intent, but that are utterly meaningless against any other form of originalism, and most of your audience will never know the difference!
9.15.2005 6:15pm
SimonD:
Roger,
I am sure this is a naive approach from a citizen, but I expect the executive and legislative branches to deal with policy and the judicial branch to deal with the legality of the legislation and enforcement. I do NOT want a judge to deal with policy.
Many sophisticated people may well tell you that this is indeed a naive approach, Sir, but I think your instincts serve you well. Those of us who do not live in living constitution-land, to borrow from Scalia's phrasing, "must pray for the courage to endure the scorn of the sophisticated world".
9.15.2005 6:21pm
eng:
There are really two problems here.

One is how the constitution regulates and prohibits conduct of the National Government, and the other is how the constitution does the same for the States.

Professor Barnett's argument that the first case is better solved by a strict(er) enumerated powers doctrine seemed quite compelling. I don't wish to butcher his argument, but in short, one point of it is that it is better for the burden of proof to be against the government's exercise of power--that the government has to come into court and argue why the laws and their execution are constitutional rather than imposing upon citizens--who do not perpetually retain their own equivalent of the solicitor general and assistants (and not everyone gets to have a Roberts work on their case)--the responsibility of discovering a positive liberty with which to shield themselves against the law.

This dovetails nicely with some of the original arguments against the bill of rights. For example, wherein does the constitution does it say that Congress may regulate speech?

This is not to say that the first amendment is vacuous under a strict enumerated powers approach, but rather that it merely closes some marginal cases.
9.15.2005 6:36pm
TomH (mail):
It should also be pointed out that many of the learned Senators (Sen. Coburn at the end is one that I recall) really tried to get at J. Robert's personal views by questioning the nature of his clients and clients' cases when he was in private practice. From the questions and responses, it seems that J. Roberts was on both sides of the fence on most social issues, at one time or another.

But as with Senator Biden's "little guy" query, it seemd that some Senators felt that some clients do not deserve representation. Sen. Coburn asked where J. Roberts would "draw the line" in terms of what cases to take.

Does this imply that a certain group of Senators feel that there are persons out there who do not deserve a lawyer in Court? Perhaps they do not believe that a lawyer who has ever defended a Jefferey Dahmer-esque murderer, or a pedophile should be a Supreme Court Justice because in their flawed analysis, this equates with supporting the idea that what your client does is ok.

I agree with the prior comment that the good Senators are pandering to their constituencies by taking this intellectually bankrupt and demagogic position. They are mostly attorneys (or have been at one time in their careers) and know or should know that the position is wring.

My question is whether it is a disservice to the American People for them to deliberately act like ignoramuses (sp?) rather than educating the people as to the correct roles of the Courts.

IMHO it is a disservice.
9.15.2005 6:47pm
dk35 (mail):
Erik is being rather silly here. I mean, what is the problem with asking a justice if he believes that the constitution allows for the right of women to control their own bodies? That is not a policy question, it is a question that demands an answer reflecting his/her interpretation of the constitution.

Let us please be spared from another Scalia, who talks of a formalist approach while essentially voting his religious biases (read any of his cases regarding gay rights and tell me with a straight face that he isn't voting on the bases of his bigotry).
9.15.2005 6:51pm
News to Tom (mail) (www):
I wonder if the nature of these hearings arose simply because there existed a widespread belief that Roberts would be confirmed no matter what happened in the Senate hearings, barring any massive skeletons nobody knew about. What the Senators are doing then, is using the hearings not in an attempt to change a result that is essentially foreordained, but instead to maximize their own power, by clearly expressing to a sort of national forum what results they desire. Thus, our criticisms of them are irrelevant to their methods and goals.
9.15.2005 7:27pm
David M. Nieporent (www):
Vijay, you didn't learn any of those things from the confirmation hearings; you learned that Roberts was willing to say those things at confirmation hearings. You know no more now than you did a few weeks ago; if that was sufficient for you to make up your mind, then great, but if it wasn't, then how can you be any more comfortable with him now?
9.15.2005 7:56pm
eddie (mail):
This is an interesting if somewhat one-sided debate.


To say that the pledge of allegiance is unconstitutional, for example, falls outside any reasonable range of correctness because there is neither any evidence that any of the original words of the Constitution were considered to have any bearing on the issue at the time the words were written, nor is there any historical basis for this new and strange interpretation.


By hiding behind a purely textualist mode, this person belies all of the handwringing about "pure" interpretations of the law that are somehow devoid of an interest in the outcome, in this particular instance, the ability of the government to require the recitation of a pledge that includes a reference to a supreme being. Is there a constitutional basis for the government forcing me to make such a recitation or isn't there some proscription (and more than a reasonable basis) to argue that the first amendment precisely prohibits any such law?

A. There is no such thing as a pure interpretation or even the ability to have an "originalist" interpretation that is pure. Law is not simply the exposition of mathemmatical equations. So please enough with this talk of purity and letting the chips fall where they may.

B. Results do matter and the constitution itself is concerned with results. Remember Gore vs Bush.

C. Please someone "intrepret" for me these words: originalists don't care about original intent, but original meaning. Especially in the context of creating a constitution how can these be separated? More importantly doesn't making such a statement already tell one that it's always about the results, and any of this abstract baloney regarding the purity of my method merely a gloss.

Let's take a simple yet bery controversial example:

Should it be up to the legislature or the courts to define what a person is, or more pointedly, if today certain living human beings are not considered persons who should enjoy the protections of the constitution, can a simple legislative act change all of that? Would a court be impotent to rule that my sperm cannot constitute a person?

And in all of this, especially from the "originalists" I never hear any disdain for the encroachments upon individual liberties that are created by legislation. Doesn't the constitution expressly say that any rights not reserved to the states or the federal government should remain with the individual? In the interest of "values" so much of this protection is ignored in the interest of results, irrespective of that actual words in the constitution, but with a wink and a nod at our "cultural" background (i.e. history of the world until the lat 17th century).

There is the pooh-poohing concerning our Judeo-Christian roots and that somehow this is a valid source for "originalist" interpretation, even thought no where in the constitution do I find the words, when in doubt consult your friendly bible.

But I will stop here so that this is not interpreted as a rant: That, I will say explicitly, was not my intention.
9.15.2005 8:01pm
magoo (mail):
I think originalists have only themselves to blame for the failure of "originalism" to take hold on a more widespread basis. They do very lousy marketing. The very term -- originalism -- invites parody and mischaracterization. They shouldn't put such a stupid label on it; they should say that they merely want to employ the interpretive methodogy generally used for the vast bulk of our nation's history. Moreover, as Professor Harrison at UVA frequently notes, the meaning of the words in the Constitution hasn't changed that much folks. You don't need to use easily parodied labels to get you where you want to go, 95% of the time.
9.15.2005 8:31pm
SimonD:
Results do matter and the constitution itself is concerned with results. Remember Gore vs Bush.
It pains me to say this, but I'm not convinced that Bush v. Gore was correctly decided, from an originalist perspective.

Please someone "intrepret" for me these words: originalists don't care about original intent, but original meaning. Especially in the context of creating a constitution how can these be separated?
Intent, obviously, refers to what the writer is trying to do. But to do that, they need to translate intentions into concrete words, and words are not always as narrow or as broad as intentions in the abstract. When we talk about original meaning, we mean, what do the words the Framers actually chose to use as a vehicle for their intentions mean, in that context, at that time, in normal educated public discourse? I would distinguish this from original intent and original understanding. The framers may or may not have intended to outlaw segregation, and neither the Congress which passed that amendment nor the state legislatures ratifying it might have understood it to mean that, but when those words became part of the fabric of our constitution, they have a certain objective meaning in public discourse at the time, and that is what is binding.

As a result of any number of factors including the strictures of compromise and linguistics, and even flat-out incompetent drafting, the statute that emerges may not do exactly what it was intended. If this all sounds a little too clever, put it like this: you're be aware of the law of unintended consequences, right?


in all of this, especially from the "originalists" I never hear any disdain for the encroachments upon individual liberties that are created by legislation. Doesn't the constitution expressly say that any rights not reserved to the states or the federal government should remain with the individual?
Any powers which are not granted to the Federal government in the constitution are between the people and their states, by the vehicle of their state constitution. The Federal government cannot infringe - even in pursuit of a power it has been granted - the rights guaranteed in the bill of rights. Nor can a state excercise a power it is forbidden in the constitution, or - per the 14th amendment - abridge the priveleges and immunities of citizens of the united states, viz., those listed in the constitution itself and the first eight amendments. The people retain everything which has not been surrendered to the Federal government, including the right to organize their state governments as they wish, within certain strictures.
9.15.2005 8:36pm
Liberty Clause:
I hope Roberts was lying about his "liberty clause" beliefs, because I really like him. And giving judges (himself) such a broad grant of authority (to decide which "liberties" apply substantively) is scary
9.15.2005 8:38pm
Justin (mail):
There are serious originalists? Really?????

To think of Scalia as anything other than silly or results minded (out of power, he's the former, in power, he's the latter), you have to get past Alexander and Prakash's unrebutted takedown of him in the San Diego Law Review. More to the point, you have to believe that words are completely divorced from any intent to communicate. You would have to believe that, should we have found out that parts of the Constitution were made by lightning bolts and nobody noticed, that the fortunate fact that the lightning marks look exactly like modern English words and made it on to the parchment means that the lightning's "original meaning" should be followed.

Words, once we divorce them from intent, are no longer words. You could not graduate an undergraduate degree in linguistics without understanding that. Thankfully for Scalia, and the right, most Americans haven't taken a linguistics class.

Besides, its SOOOO much easier to get angry about Kelo (only Volokh, in DEFENDING KELO, seems to even tackled the correctness rather than the popularity of the opinion), because THEY TOOK OUR JOBS ;)
9.15.2005 8:55pm
RJL (mail):
Are you really, honestly, operating under the delusion that when a senator opens his or her mouth in this hearing, they are doing anything other than making speeches for the benefit of the interest groups that finance their campaigns?
9.15.2005 9:41pm
SimonD:
Words, once we divorce them from intent, are no longer words.
Are you kidding? I mean, does this really make any sense? Have you never read something and inferred from it something different to what the writer intended to say?

Let me give you a more concrete example. The 16th amendment, which legalized the income tax, was originally proposed by a member of Congress who had the sole intention of embarrassing the Republican party by making them vote against it. This is a widely-known story, so I won't recount the details here. So the author no intention whatsoever to create a power of Congress to levy a federal income tax. Does that mean that the words of the 16th amendment - which does exactly that - have no force, because their author never intended for them to pass? Words have an objective meaning in a public context, REGARDLESS of what the author intends to say. You'll be familiar, of course, with the scene in the princess bride, where Inigo Montoya warns Vizzini that he "keeps using that word, but it does not mean what I think you think it means" - you cannot randomly and arbitrarily decide to reassign new meaning to a word (unless you're a hip hop performer, in which case all bets are off). You use words that have a generally accepted public meaning.

If you misuse those words, through ignorance, oversight or just sheer bloody-minded stupidity, and therefore the words you write do not reflect the meaning you intended, of course they still have a public meaning - they bare the meaning that a reasonable speaker of the English language would assign to those words. If I read the sentence "what's up, dog?", I presume that the author is asking his canine companion to define the meaning of a word establishing a vertical spacial relationship - a quite purposeless and futile task if you ask my opinion. If the author meant something else, there are words available in the English language which convey his actual meaning somewhat more clearly ("good afternoon, my friend, how are you feeling?", perhaps, would better suit his intent), but in any instance, he wrote what it wrote, and it means what it means in the usual public discourse.

Words have an objective meaning in the time they are used, and hypotheticals about how all words are ultimately abstractions if looked at from the perspective of an alien, and philosophical ruminations on the nature of written linguistic communication can't change that fact.
9.15.2005 11:27pm
mrsizer (www):
I rarely post here - since I'm not a lawyer, nor do I play one on TV - but I have to point out that I think Justin says all that needs to be said about the state of education in our country.

Words, once we divorce them from intent, are no longer words.

So, instead of taking the words at face value - that is the author intended to say what he actually said - we must divine what the author intended to say but for some reason did not?

How is that divination to take place? Mind reading? Raising the dead?

Authors, unless they are incompetent, use words that convey what they intend.
9.15.2005 11:43pm
Ken Willis (mail):

Ignoring arguendo the standard critique that a group of politicians chooses words as a political compromise and cannot possibly have a unified intent, where is the evidence that the Framers intended an originalist interpretation? Somehow that has been left out of my law school's curriculum....

As a side note, I'm amused to learn that non-originalists are not only wrong but unreasonable.


I don't see any need to devine what the framers may have intended. What is called "originalism" is merely a proper way to read a historical document. The words found in the document will either carry the same meaning today as they did when written or, those same words may have been understood differently at the time they were written. If the latter, and if the meaning of the words can be reconstructed in some reliable manner, that should control. The second leg of making a reasonable interpretation of any historical document, whether a constitution or a statute, is to ask if there is a well established historical tradition that has arisen and been consistently followed and which imparts a certain meaning to the words and the document.

Is is unreasonable not to be an "originalist?" Yes, I think so. Because not to be an originalist means that you are willing to attribute something to the words of the document that they don't now nor ever have been understood to mean. Why would anyone do that? To impose their agenda on others is the only reason I can think of. That is unreasonable, to say the least.

I'm not surprised you did not learn this law school. Neither did I.
9.15.2005 11:52pm
Bruce Hayden (mail) (www):
mrsizer

Let me suggest though that even though authors try to use words to convey what they intend, they often fail. Maybe one reason that this gets played out more in law than in many other realms is that this is the area where it really matters.

For example, you have a contract between two people. Both think that they know what they agreed to. But, to no one's real surprise (at least their lawyer's surprise), they end up disagreeing as to the interpretation of that contract. This happens far more than you would expect.

In my job as a patent attorney, I see this sort of thing on a routine basis. I know what I thought I said. But the examiner reads someting quite different into it. That, to some extent, is his job - expanding what you said in an application during prosecution, rather than having it done later during litigation. No matter how hard I try though, I, along with probably every other patent attorney, face this on a routine basis in our practices.

But I think that you are agreeing with Justice Scalia here that looking for hidden meaning is fruitless. Rather, you look at what is said. Trying to interpret hidden meanings is, in the end, fruitless, since none of us are clairvoyant, and even if we were, no one else would accept that we were.

I thus take the more pragmatic approach. While I believe that many don't express themselves as well as they might, to me, it is mostly irrelevant. Rather, what has meaning are the meanings of the words spoken or written to others. If I have a hidden or personal meaning to some word, that is irrelevant. Rather, what matters is what that word means to others.
9.16.2005 12:12am
Robert Schwartz (mail):
"It is particularly ironic to hear the demands of Senators (most notably Specter) that they not be treated like children when they seem so intent on acting like children."


Repeal the 17th!
9.16.2005 1:34am
AST (mail):
Conservatives have complained for a long time about judges "legislating from the bench." You'd think that legislators would be a little more jealous of their prerogatives. Only a reckless ideologue would want to expand the powers of the only branch that isn't accountable to the people. If Roe v. Wade had stated that fetuses' right to life outweighs the right of a woman to choose, which is a dishonest way of saying to back out of her choices, would Kennedy have been defending that as an established part of the Constitution?

That's the point. If the court takes sides on an issue that is so divisive, especially when it has to stretch the text of the Constitution to far to justify it, it makes itself into a political arena instead of an impartial resolver of disputes. There are certainly areas where the Constitution limits what legislatures can do, such as establishing apartheid, or enacting laws against publishing certain opinions, but the circuses of our current confirmation hearings ought to be a warning to all Justices that this is still supposed to be a democracy, if still a limited one, and that they must be constantly on guard against being used by activists to achieve political ends they don't have to votes to achieve. Not every political defeat and lost cause is a denial of fundamental right. In fact, most aren't.

I think John Roberts sees this and hence the need to proceed cautiously when people want him to use the unappealable power of the court to resolve divisive social issues. Perhaps that's why it took the court so long to rule against the abuses of black citizens' rights. That was too cautious, but I have the impression that too many judges have come to see themselves as guarantors of "social justice," which, like "progress," is a slippery concept. Is it justice to punish people for the wrongs their ancestors did, or to reward them for the wrongs done to their ancestors? It all depends on how one formulates the argument.

Our republic is based on the belief that the people are more entitled to make rules for themselves than some autocrat, but Senators Kennedy, Biden and Schumer seem ready to hand that power to judges on whom, in Biden's words, they are rolling the dice.
9.16.2005 3:04am
AST (mail):
Conservatives have complained for a long time about judges "legislating from the bench." You'd think that legislators would be a little more jealous of their prerogatives. Only a reckless ideologue would want to expand the powers of the only branch that isn't accountable to the people. If Roe v. Wade had stated that fetuses' right to life outweighs the right of a woman to choose, which is a dishonest way of saying to back out of her choices, would Kennedy have been defending that as an established part of the Constitution?

That's the point. If the court takes sides on an issue that is so divisive, especially when it has to stretch the text of the Constitution to far to justify it, it makes itself into a political arena instead of an impartial resolver of disputes. There are certainly areas where the Constitution limits what legislatures can do, such as establishing apartheid, or enacting laws against publishing certain opinions, but the circuses of our current confirmation hearings ought to be a warning to all Justices that this is still supposed to be a democracy, if still a limited one, and that they must be constantly on guard against being used by activists to achieve political ends they don't have to votes to achieve. Not every political defeat and lost cause is a denial of fundamental right. In fact, most aren't.

I think John Roberts sees this and hence the need to proceed cautiously when people want him to use the unappealable power of the court to resolve divisive social issues. Perhaps that's why it took the court so long to rule against the abuses of black citizens' rights. That was too cautious, but I have the impression that too many judges have come to see themselves as guarantors of "social justice," which, like "progress," is a slippery concept. Is it justice to punish people for the wrongs their ancestors did, or to reward them for the wrongs done to their ancestors? It all depends on how one formulates the argument.

Our republic is based on the belief that the people are more entitled to make rules for themselves than some autocrat, but Senators Kennedy, Biden and Schumer seem ready to hand that power to judges on whom, in Biden's words, they are rolling the dice.
9.16.2005 3:05am
AST (mail):
Conservatives have complained for a long time about judges "legislating from the bench." You'd think that legislators would be a little more jealous of their prerogatives. Only a reckless ideologue would want to expand the powers of the only branch that isn't accountable to the people. If Roe v. Wade had stated that fetuses' right to life outweighs the right of a woman to choose (which is a dishonest way of saying to back out of her choice to engage in sexual intercourse) would Kennedy have been defending that as an established part of the Constitution?

That's the point. If the court takes sides on an issue that is so divisive, especially when it has to stretch the text of the Constitution to far to justify it, it becomes just another venue for politics instead of an impartial resolver of disputes. There are certainly areas where the Constitution limits what legislatures can do, such as establishing apartheid, or enacting laws against publishing certain opinions, but the circuses of our current confirmation hearings ought to be a warning to all Justices that this is still supposed to be a democracy, if still a limited one, and that they must be constantly on guard against being used by activists to achieve political ends they don't have to votes to achieve. Not every political defeat and lost cause is a denial of fundamental right. In fact, most aren't.

I think John Roberts sees this and hence the need to proceed cautiously when people want him to use the unappealable power of the court to resolve divisive social issues. Perhaps that's why it took the court so long to rule against the abuses of black citizens' rights. That was too cautious, but I have the impression that too many judges have come to see themselves as guarantors of "social justice," which, like "progress," is a slippery concept. Is it justice to punish people for the wrongs their ancestors did, or to reward them for the wrongs done to their ancestors? It all depends on how one formulates the argument.

Our republic is based on the belief that the people are more entitled to make rules for themselves than some autocrat, but Senators Kennedy, Biden and Schumer seem ready to hand that power to judges on whom, in Biden's words, they are rolling the dice.
9.16.2005 3:09am
AST (mail):
Conservatives have complained for a long time about judges "legislating from the bench." You'd think that legislators would be a little more jealous of their prerogatives. Only a reckless ideologue would want to expand the powers of the only branch that isn't accountable to the people. If Roe v. Wade had stated that fetuses' right to life outweighs the right of a woman to choose (which is a dishonest way of saying to back out of her choice to engage in sexual intercourse) would Kennedy have been defending that as an established part of the Constitution?

That's the point. If the court takes sides on an issue that is so divisive, especially when it has to stretch the text of the Constitution to far to justify it, it becomes just another venue for politics instead of an impartial resolver of disputes. There are certainly areas where the Constitution limits what legislatures can do, such as establishing apartheid, or enacting laws against publishing certain opinions, but the circuses of our current confirmation hearings ought to be a warning to all Justices that this is still supposed to be a democracy, if still a limited one, and that they must be constantly on guard against being used by activists to achieve political ends they don't have to votes to achieve. Not every political defeat and lost cause is a denial of fundamental right. In fact, most aren't.

I think John Roberts sees this and hence the need to proceed cautiously when people want him to use the unappealable power of the court to resolve divisive social issues. Perhaps that's why it took the court so long to rule against the abuses of black citizens' rights. That was too cautious, but I have the impression that too many judges have come to see themselves as guarantors of "social justice," which, like "progress," is a slippery concept. Is it justice to punish people for the wrongs their ancestors did, or to reward them for the wrongs done to their ancestors? It all depends on how one formulates the argument.

Our republic is based on the belief that the people are more entitled to make rules for themselves than some autocrat, but Senators Kennedy, Biden and Schumer seem ready to hand that power to judges on whom, in Biden's words, they are rolling the dice.
9.16.2005 3:10am
Phil (mail):
dk35 and Justin
If Scalia is results minded, he is the lousiest results minded Justice in history
He protects flag burners in Johnson v. Texas (and its progeny), thieves in Hicks v. Arizona, criminals in general in Blakely, and (would have) protected child molesters in Craig (and similar cases). Moreover, in Hubbell v. US, he and Thomas were willing to consider the possibility that the majority opinion did not give enough 4th Amdt protection to subpoenaed documents.
Finally, his public pronounsemtns about the right-to-die cases seem to indicate that his view is that in a democracy, the demos get to go to hell in a handbasket, unless htere is a specific constitutional prohibition.
Of course, there may be pro-flag burning, pro-stealing, pro-child molesting conservatives, BUT I need to meet one, before I believe it.
9.16.2005 6:32am
dk35 (mail):
Phil, I'm surprised at you. I mean, look at this weblog. It is created and perpetuated by conservatives (oh, I'm sorry, they call themselves libertarians) who mostly support the right to burn flags.

But that aside, my point was that on the issues that seem important to Scalia personally (i.e. keeping women in the home, denying basic liberties to people who choose to sleep with and enter relationships with people of the same gender) he seems to be results oriented.
9.16.2005 9:52am
Phil (mail):
dk35
You may be correct, but that does nothing to undermine the legal analysis, or lack thereof. Of course, it may take near heroic levels of virtue to take a case in a direction you do not like when it truly is important to you personally. (Interestingly enough, the best example may also be from the flag burning case: the dissent by J. Stevens.) To the extent that Scalia may be the best of a bad lot (which is roughly my view), it may be only because there are many areas of law where he does not (really) care. I also must confess that this squares with my own prejudice that what renders J. O'Connor (oddly enough the only justice that I have ever met) so mediocre, her concern about others. Such concern explains the twisted interpretation of "confrontation" in Maryland v. Craig, at least if we assume the defendant was guilty.
9.16.2005 10:29am
SimonD:
I'd only add to Phil's last reply that I agree that from time to time, Scalia does get led astray by considerations other than originalism.

In The Tempting of America, Robert Bork makes the point that to write Marbury, John Marshall had to perform some extraordinary leaps and bounds over issues such as mootness and the text of the Judiciary Act, but he did so because he believed there was a serious and very imminent threat to the Republic if he did not act to counterbalance Jefferson. I don't know if that's historically accurate to ascribe to Marshall, or even whether he was justified in doing so even if it is - but it seems at least plausible. As mentioned above, I think it's very hard to justify Bush v. Gore from an originalist perspective, and neither Scalia nor Thomas have written in its defense (indeed, Nino makes a habit of avoiding the issue, which is the only time I think I've ever seen him try to avoid an issue), at the time or since. I would like to think that they had motives as high-minded as those which Bork ascribes to Marshall, in that Gore had threatened to appoint Judges who espouse a judicial philosophy that Scalia thinks - and I agree with him - will destroy the Constitution. Time has born out that the 43d President has gotten to appoint a significant percentage of the Federal Judiciary, including at least two members of the Supreme Court, and in retrospect, the prospect of Gore or Kerry appointing these Judges is too terrifying to even contemplate seriously. So maybe the case was wrongly decided, but as Scalia said in his confirmation hearing, "on some level, even at the supreme court, government is a practical enterprise, and when some things are done, they're done and you move on". He was talking about Marbury, but I think when he retires, he'll say the same thing about Bush. It may not have been his finest moment, but it was something that he felt was necessary.

The reality is that every Judge is sometimes led astray. I was watching the testimonies to SenJuCom yesterday afternoon, and one of the speakers was Beverly Jones, who had been in a litigant in Tennessee v. Lane. I'm telling you honestly, if I had been a Justice in Tennessee v. Lane, I'd likely have found some excuse, any excuse to rule in this lady's favor, constitution, law and natural law be damned. I'd have invoked substantive due process - and y'all know that I've unhesitatingly castigated SDP at every opportunity - to find a liberty right to be beautiful and eloquent, or something. So we can say Scalia is more principled than I am (or, at least, that he needs stronger glasses). Likewise, there have been cases where I think it's hard to understand where Scalia is writing from, where his policy preferences have gotten the better of him. Raich isn't one of those cases, in my opinion, by the way. But anyway, the point is, Scalia may occaisionally stray off the reservation, but I'd rather a Scalia who sometimes strays off the reservation than a Souter or a Ginsburg who have only very infrequently even set foot IN the reservation.

Originalism - or, per magoo, whatever you'd like to call it - is not perfect. I don't say it's perfect. I just say that it's better than anything else, and that's enough. It remains "the lesser evil".
9.16.2005 11:11am
Justin (mail):
Since most of the responses to my argument are trivial or obviously silly, I'm only going to address the misinterpretation of my argument which has led to the only interesting responses.

1) Just to be clear. Words do "matter". The Court's statement in Bedroc, although taken too far even in the context of that case, was (mostly) correct. The plain meaning of a group of words is far and away the best evidence of the legislative intent. Nobody's arguing to the contrary, except straw men.

2)" So, instead of taking the words at face value - that is the author intended to say what he actually said - we must divine what the author intended to say but for some reason did not?"

No. You really do look at the body of information any historian has at its disposal, including (far and above everything else) the text of the statement, the political context of the time, the "legislative history", contemporous statutes, etc., to determine what the statute represents. The words put up on the statute were designed to convey a message, an order of what to do (think of Hart's "fetch the soup" example). That order is not neccesarily defined by the words, and can even be contradictory to the message that another person in another context to another messengee may mean with the exact same words.

One could even imagine that in the country of Xibit, there is a phrase saying "Drive on the left side of the road, or go to jail", which means in English, "Drive on the right side of the road, or go to jail". Now, if a clerk from Xibit somehow, accidentally, wrote the Xibitian language into an English-speaking statute, what side of the road would you drive on? And if you're Scalia, and the answer is clearly the left, who the hell are we taking orders from? Not the legislature, who wants us to drive on the right side, that's for sure.

But the words are just words. It is the MESSAGE that is law. And this is *very* basic linguistics. It gets more interesting once you realize
9.16.2005 12:46pm
SimonD (www):
Other than providing an exceptionally clear argument against multilingualism, I'm not sure what the above point is supposed to demonstrate, Justin.

It is the words that are the law. The words carry a certain message. If that message is at variance with the intentions of the person who wrote them, then the words prevail, even if you can prove absolutely beyond doubt that the words do have a meaning at variance with the intent of the author.

Mostly any Federal Law that is on the books has been voted on by 536 people: 435 Representatives, 100 Senators and the President. Each on of those people (pause to snort with laughter) has carefully read the words of that bill. It may have been amended and language compromised on several times in that process. Each one of those 536 people may have a slightly different intention in voting for the bill; each one may have a different understanding of what the bill does. But the bill is written in English, a language which has daily meaning for millions of people, and once that language is adopted, it is the terms of that language which is binding law. Not the intent of the author(s), not the understanding of the people who voted for (or against) the bill of its effect, but the language which is actually adopted into the statute books. That's what the law is, not some ephemeral notion of intent or understanding.

I assumed, arguendo, that those voting for the bill actually read the language, but of course they don't; the reality is that their staff read the bills and present their bosses with a summary. So the reality is, the understanding of the person voting for the bill is entirley divorced from the text. None-the-less, what goes into the statute books is not the committee report, not the staff crib sheet, but the text of the bill. That's what the law is, not some ephemeral notion of intent or understanding.

I've not taken a linguistics class, so I don't know whether your charges against it (and they are against it) are true. But science must describe the world as it actually finds it, and if linguistic theory cannot adequately do so, it is linguistic theory which must change, not the world.
9.16.2005 1:17pm