pageok
pageok
pageok
Survey Shows Sharp Differences in How McCain Supporters and Obama Supporters View Proper Role of the Supreme Court:
Rasmussen Reports recently conducted a survey of 1,000 likely voters and asked survey respondents the following question:
Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?
The responses revealed a sharp difference between the views of McCain supporters and the views of Obama supporters:
While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama's supporters agree. Just 11% of McCain supporters say judges should rule based on the judge's sense of fairness, while nearly half (49%) of Obama supporters agree.
Hat tip: lkcjpd.
DavidBernstein (mail):
Fascinating!
9.9.2008 1:46am
Loophole1998 (mail):
If only there were a secular party that believed in judges who ruled on what's written in the Constitution...
9.9.2008 1:46am
Will Lewis (mail) (www):
Surely all Supreme Court Justices know what their job is, they just have different interpretations as to what is written in the Constitution. And we'd be naive if we didn't think that the judges acted on political prejudices. This study is just reflective of the argument over Justices that the right has framed, especially through the Federalist Society: right-leaning justices vote with the Constitution, left-vote from their hearts. As we've witnessed, neither of these conclusions are without serious holes.
9.9.2008 1:55am
J. Aldridge:
Liberals have no use for written constitutions or laws, just court edicts.
9.9.2008 1:57am
OrinKerr:
Will Lewis,

How did the Federalist Society get Obama supporters to believe in a particular conception of what the Supreme Court should do? That is quite an accomplishment.
9.9.2008 1:58am
Brian P:
Will,

Your point is well taken. That doesn't, however, exhaust the interesting stuff here. Don't you find it interesting that nearly half of left-leaning voters (not judges) actually want rulings based on a sense of fairness and justice _rather than_ on the Constitution?

Is there any other way to understand the responses, other than, when the Constitution and fairness/justice clash, you should go with the latter? It seems an interesting result, to me.
9.9.2008 2:01am
great unknown (mail):
If 29% of BS think the justices should rule on what is in the Constitution, and 49% of them think they should rule on the basis of fairness, on what basis do the other 22% of them want the justices to rule on?
9.9.2008 2:29am
Nunzio:

Does anyone know why Obama and Biden voted against John Roberts?

Since Roberts was replacing Rehnquist, who is probably more conservative than Roberts, did Obama and Biden think there was a better person that Bush realistically could or would have appointed than John Roberts to be Chief Justice?

Were McCain's votes to confirm Ginsburg and Breyer a better reflection on the proper role of Senators in the confirmation process than Obama and Biden displayed?

Does it show that McCain is bi-partisan and Obama and Biden aren't?
9.9.2008 2:58am
Kevin P. (mail):
Ah the living constitution, based upon "justice" and "fairness". It results in a dead republic.
9.9.2008 3:34am
Jon Roland (mail) (www):
Not a surprise but this is one of the first times the issue of constitutional compliance has been asked about in a major survey, and puts numbers on what we have been estimating.

Note that the question was defective in not distinguishing between "what is written in the Constitution" and "legal precedents", which many of those polled will consider to be in conflict. Recipients are encouraged to tell Rasmussen to do better on the next survey.

Here is the message I sent to info@rasmussenreports.com. Don't just copy it, but rephrase it before you send.

-------- My Comment to Rasmussen --------

There is a defect in your survey, in not distinguishing between "what is written in the Constitution" and "legal precedents", which many of those polled will consider to be in conflict. You might ask a question like this:

How should the Supreme Court construe the Constitution?
A. Strictly according to its original public legal meaning of the text when adopted in 1789.
B. According to the latest precedents even if they have deviated from the original meaning.
C. According to what is just and fair regardless of what the Constitution says or legal precedents.
D. According to whatever might seem to be popular based on the last election.
9.9.2008 3:46am
Jon Roland (mail) (www):
Loophole1998:

If only there were a secular party that believed in judges who ruled on what's written in the Constitution...


You don't consider the Libertarian Party secular? Read their platform (I was on the Platform Committee).
9.9.2008 3:49am
OrinKerr:
Jon Roland,

I think the question was better as it was, actually. I suppose they could try to make it text and/or precedents, to clarify that either is an acceptable basis, but I find your proposed choices leading and a bit too biased for a good poll question.

Also, I am still hoping to meet the person who thinks the constitution should *always* be "strictly interpreted according to its original public legal meaning of the text when adopted in 1789". In all seriousness, I have been searching for such a person for almost 15 years, and have yet to find just one person who is sincerely committed to this. (Although many people will surely say this is what they want, in my experience.)
9.9.2008 4:00am
BillW:
Jon Roland: How should the Supreme Court construe the Constitution?
A. Strictly according to its original public legal meaning of the text when adopted in 1789. ...


The problem with that is that the Constitution is a living document, whose meaning has changed over the years since 1789. (The most recent such change was in 1992.)
9.9.2008 4:07am
Jon Roland (mail) (www):
OrinKerr:

I am still hoping to meet the person who thinks the constitution should *always* be "strictly interpreted [construed] according to its original public legal meaning of the text when adopted in 1789". In all seriousness, I have been searching for such a person for almost 15 years, and have yet to find just one person who is sincerely committed to this.


You have met one now. And I know many others, some of whom are on my People page.

Now that is not to say that all SC decisons must be constructions of the Constitution. I agree with the decision in Miranda, e.g., not as a constitutional construction, but as an equitable and prudential decision, with no precedential effect appropriate, even for believers in binding stare decisis.
9.9.2008 4:20am
OrinKerr:
Jon Roland,

So what is your view on the constitutionality of segregated public schools, campaign finance reform like BCRA, and affirmative action? If you are the true and honest originalist have been hoping for, you will believe that all three are constitutional and I may have to amend my earlier statement. Also, can you explain why you think the constitution as originally understood gives the Supreme Court equitable and prudential powers over state police practices (necessary to justify Miranda, for example)?
9.9.2008 4:38am
Jon Roland (mail) (www):
BillW:

The problem with that is that the Constitution is a living document, whose meaning has changed over the years since 1789.


The meaning for some modern readers, perhaps, but that is not the meaning we are obligated to seek for the construction of a law.

A word or statement has several meanings:
1. The meaning it had for the writer when he wrote it.
2. The meaning it had for the reader when he read it.
3. The meaning the reader thought it had for the writer when he wrote it.
4. The meaning the writer thought it would have for the reader when he read it.
5. The meaning the reader thought it should have had for the writer if the writer knew what the reader does.
6. The meaning the writer thought it should have for the reader if the reader knew what the writer does.
7. The meaning the reader thought the writer thought it would have for the reader when he read it.
8. The meaning the writer thought the reader thought it would have for the writer when he wrote it.
9. The meaning it has for the reader upon further reflection, perhaps years later.
10. The meaning it has for the writer upon further reflection, perhaps years later.

So our duty is to act as (3) seeking (1). Is is possible? Yes, for almost all terms and provisions in the Constitution. But the process is not always easy. It is basically a matter of learning a foreign language: 18th century legalese, which is significantly different from 2008 legalese. You have to read what the Founders read and wrote, and test how well you are "getting into their heads" by successfully predicting what a writer is going to say, and the language he will use, to express the next idea in a work you haven't read before. (This works better if you read all his writings in chronological order, to allow for development.) I have collected most of the writings you will probably need to read before you are ready to construe the Constitution, from our Liberty Library.
9.9.2008 4:39am
one of many:
Not a surprise but this is one of the first times the issue of constitutional compliance has been asked about in a major survey, and puts numbers on what we have been estimating.


You may not have been surprised, but I was floored to see so many people actually accepted that the justices should rule out of their sense of fairness.
9.9.2008 5:04am
Jon Roland (mail) (www):
OrinKerr:

So what is your view on the constitutionality of segregated public schools, campaign finance reform like BCRA, and affirmative action? If you are the true and honest originalist have been hoping for, you will believe that all three are constitutional and I may have to amend my earlier statement. Also, can you explain why you think the constitution as originally understood gives the Supreme Court equitable and prudential powers over state police practices (necessary to justify Miranda, for example)?


1. Segregation. The decisions in Brown v. Board and similar cases were not constitutional constructions, but equitable decisions. It is theoretically possible for separate to be equal, but practically impossible, and that makes it a fact-based matter of equity.

2. BCRA. Unconstitutional. The arguments to that position should be familiar.

3. Affirmative action. Depends on the facts. It is not unconstitutional to make an extra effort to recruit or encourage disadvantaged persons, but not to intervene to increase the odds of their success by altering the rules of competitition. I practice a kind of AA in my private life, giving the edge to a disadvantaged person ceteris paribus, but in any kind of objective competition all other things are seldom equal.

4. Equitable and prudential powers over state police practices. The authority is the 14th Amendment, the reasoning for which should be familiar. The key point is that one of the privileges and immunities is equitable relief. But these are not delegated powers. A court has no power. All it can do is support or oppose the positions of parties. What people then do is a matter of custom,

Now the above reasoning may make it seem I am supporting (C) among the alternative in my proposed question to Rasmussen, but read it carefully:

C. According to what is just and fair regardless of what the Constitution says or legal precedents.


The written Constitution of government trumps equity if it speaks to the issue in a case, but if it is silent, and it often is, there is scope for equitable discretion.
9.9.2008 5:08am
Will Lewis (mail) (www):
Orin Kerr,

I'm a member of the Federalist Society, and I love the way we foster debate on campuses. But, and this is the part I shy away from, the group was founded to shift power to the Judicial branch to allow a conservative judiciary to legislate from the bench to accomplish conservative goals that were unattainable in the legislature: removing restrictions on church/state separation, especially as related to prayer in public; strengthening of 2nd amendment protections; and the tearing down of Roe v. Wade. A big part of this was framing the debate as textualist conservatives v. "living Constitution" liberals. Spend a few hours with Edwin Meese or Justice Scalia, and this becomes apparent quickly.

So, when the debate is framed as conservative textualists v. liberal living Constitution people, and when judicial opinions characterized as pro conservative are being written by those justices who identify as textualists and pro liberal opinions are being written by those considered as living Constitutionalists, then the vast majority of people who are not schooled in constitutional law are going to think that the judicial philosophy which hands down opinions that meshes with their politics is the proper judicial philosophy.

The Fed. Soc. got Obama supporters to believe in an [unconstitutional] conception of what the Supreme Court should do by redefining textualism as a conservative judicial philosophy, which the legally untrained liberal should see as in opposition to themselves. I'm basically saying that most of the people on either side are not well informed enough to understand how the Supreme Court is supposed to work. And didn't Hamilton say that they're men of law anyways, so we don't have to worry about them creating too strong of an impetuous vortex?
9.9.2008 5:14am
Will Lewis (mail) (www):
Brian P,

It is totally interesting stuff. I address in the comment directly above, but real quickly: your typical left-leaning and right-leaning voter is not trained appropriately in constitutional law to know why and how judges are supposed to make decisions, and they're just choosing the political philosophy that they perceive as handing down decisions that mesh with their own political philosophy.
9.9.2008 5:17am
Jon Roland (mail) (www):
one of many:

You may not have been surprised, but I was floored to see so many people actually accepted that the justices should rule out of their sense of fairness.


As the head of the Constitution Society I get a somewhat different perspective on these things.

This points to how the Rasmussen question was misframed. Of course a court should render an equitable decision -- if that decision is not in conflict with the (applicable state or national) constitution. But the question did not make clear whether this was to be done if equity were in conflict with the Constitution.
9.9.2008 5:18am
Darrin Ziliak:

You may not have been surprised, but I was floored to see so many people actually accepted that the justices should rule out of their sense of fairness.


Which may not be all that alarming given the level of ignorance among the general public about just what it is that SCOTUS does.

I'm a layman, but I do have an idea about the oourt's proper function and I frequently read this blog in order to get an idea about trends in the legal sphere.

Plus I grew up watching Schoolhouse Rock :)

Snark aside, many people I talk to genuinely believe that 'fairness' should be a consideration.

The problem as I see it is that they're confusing SCOTUS with an ordinary court that trial by jury.

'Fairness' or justice, if you prefer, is something that a jury should take into consideration when rendering a verdict.

The problem is that fairness isn't what SCOTUS is judging.
Instead it's deciding whether or not a particular procedure, practice, law, or whatever is constitutional.

The two, while not mutually exclusive, are not always compatible.

The 'silver lining' for those of us who think there's still a place for jury nullification is that 'fairness is still a consideration for these potential jurors, no matter what the law says.

IOW, the interests of justice should be paramount instead of the letter of the law to the jury hearing the case.
9.9.2008 5:21am
Jon Roland (mail) (www):
Will Lewis:

your typical left-leaning and right-leaning voter is not trained appropriately in constitutional law to know why and how judges are supposed to make decisions, and they're just choosing the political philosophy that they perceive as handing down decisions that mesh with their own political philosophy.


You are out of touch. Voters are seldom asked such questions, except in private discussions, such as forums on the Net, but a significant and growing number of them are waking up.

A supporter says we can divide public understanding of the Constitution into BCO (before constitution.org) and ACO (after). Look at our web visit statistics, linked from our home page. Millions and millions of visitors. The cumulative effect is significant.
9.9.2008 5:28am
DangerMouse:
Seems like a biased question.

Who's to say that a ruling based on the written Constitution and legal precedents is not "justice." It sets up "justice" to be opposed to the written Constitution.

It is false to say that a judge is acting according to "justice" by acting outside of the written Constitution, because he would be acting outside the law, and hence, making an illegal act and therefore is engaged in corruption.

Judges who follow the written Constitution are engaged in "justice." They're the ones with the blindfolds on, not those with their thumbs on the scale.

Terrible, terrible question. It should've been worded like this:

"Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it make decisions based on the personal preferences and policy positions of the judges?"
9.9.2008 5:34am
John McCall (mail):
Look, there is no way that 82% of McCain supporters actually understand what they're intellectually committing to under the rubric of "judges should rule based on what is in the Constitution", and I say that as someone who's generally in the originalist camp. What this most clearly shows is that the Republican Party has made a very effective talking point out of originalism, such that committed Republican partisans know the right answer to choose off the list; I'm sure it's basically the same for the Democratic partisans as well.
9.9.2008 6:07am
Smallholder (mail) (www):
Perhaps the main difference between the poll's respondents is the political language used by "liberals" and "conservatives." A major talking point of the right has been condemnation of activist judges. But the definition of activist judge seems to be "A judge with whom I disagree."

When the Heller case overturned D.C. gun laws, we didn't hear much bemoaning of legislating from the bench. But just let the court overturn a flag-burning conviction and we might hear some bemoanment.

"Just what is in the Constitution" means different things to different people. As a history teacher, I was contacted by a Conservative Evangelical group that wanted to offer me resources to use in the classroom. The point of the material was the the Constitution was Biblically based. Imagine my shock to discover that the separation of powers wasn't the result of Madisonian Enlightenment thinking with a heavy dollop of Montesquieu - evidently the Constitutional separation of powers comes from the Holy Trinity - The Father (Judicial), Son (Executive), and Holy Spirit (Legislative). Even if we accept the muddy theology involved, that claim is bogus - we have the Federalist papers to explicate Madison's reasoning. BUT - and here's the rub - many local Conservatives would say that enforcing their particular Evangelical worldview is in accordance with the Constitution - without ever having read the actual founding document.

Liberals who support Brown v. Board, Loving v. Virginia, and recognition of Massachusetts' gay marriages under the full faith and credit clause would say those stances are BOTH fair and in accordance with the Constitution.

I really wish we could eliminate the word "activist judge" from our political lexicon.
9.9.2008 9:07am
paul lukasiak (mail):
Wow. Talk about your biased questions...

A better question would be to ask whether the Constitution should be interpreted based on 18th century concepts of justice, rights, and the role of government, or if it should be interpreted based on a 21st century context.
9.9.2008 9:49am
A.W. (mail):
I think I will skip the 18th iteration of how to correctly interpret the constitution. If you want to grant our robed brethren God-like power, I doubt I would persuade you of the folly of it. If you want to say the words of the constitution don't matter, or they only matter when they embarrassingly contradict a living constitutionalist, again, I doubt if I can convince you otherwise.

But the politics is interesting. This explains to me why republicans love to talk about this, and dems don't. because republicans can run on it, without offending very much of their base, and with some home of pulling off some of that 29% from the other side. Interesting...
9.9.2008 9:51am
Angus:

Also, I am still hoping to meet the person who thinks the constitution should *always* be "strictly interpreted according to its original public legal meaning of the text when adopted in 1789".

My guess is that you never will. Not if the person is serious and rational, that is. Such narrowness would lead to absurd results. Under that formulation, the Air Force would be illegal since the Constitution only specifies an army and a navy. Of course, that would be utterly absurd. We just assume that the founders would have included air forces had they known airplane would be invented. But in the process, we no longer strictly adhere to the meaning of the words in 1789.

Just one example, and there are others that would lead to similar absurdities.
9.9.2008 10:02am
pluribus:
This has been an enlightening (and quite civil) discussion, with many good points.
9.9.2008 10:20am
whit:

Does it show that McCain is bi-partisan and Obama and Biden aren't?


well, mccain didn't vote against ginsburg.

ginsburg is at least as liberal as roberts/alito are conservative.

i think that answers the question

or not
9.9.2008 10:26am
A.W. (mail):
Angus

You're just being silly.

> Under that formulation, the Air Force would be illegal since the Constitution only specifies an army and a navy.

There is an easy answer to that. The constitution concerns itself with substance, not form. Under your silly formulation there is nothing wrong with an air force, so long as it is officially part of the navy or army. But the constitution doesn't concern itself with formalities.

Paul

> A better question would be to ask whether the Constitution should be interpreted based on 18th century concepts of justice, rights, and the role of government, or if it should be interpreted based on a 21st century context.

So, you are upset that they didn't load the question up too much. Gotcha.

You have to be seriously blind to think that is even a factually accurate question. For instance, if you believe in original intent, then you are talking about a constitution that has been amended up until even the 20th century, and I wouldn't be shocked if we see an amendment in the 21st before long. So to say it is a question of 18th century v. modern times is simply not true. Those who believe it should be interpreted as written include the amendments.

To give the most obvious example, in the 18th century, slavery was legal. In the 19th, it was abolished, at least officially. So if you say the constitution should be interpreted as it was understood in the 18th century, then you are saying slavery should be legal. Now, do you really think any of the original intent types want to just ignore the Thirteenth Amendment?

I am constantly amazed how often people confuse the concept of bias with being insufficiently slanted toward the liberal viewpoint.
9.9.2008 10:48am
KenB (mail):
I agree with previous commenters that many nonlawyers may never have thought about the difference between a result dictated by the law and a result based on notions of fairness. I recall at the conclusion of an arbitration, the arbitrator asked the other lawyer and me whether we wanted him to rule based on the law or based on his sense of fairness. I asked him to rule based on the law, because that is how I had built my case. The other lawyer seemed not to understand the difference. In her defense, for what it is worth, she was green.
9.9.2008 10:56am
OrinKerr:
Jon Roland,

Your answers are creative and novel, but to be candid they appear to have little or nothing to do with the original public meaning of the Constitution. So I think my search goes on.
9.9.2008 11:09am
OrinKerr:
Jon Roland,

Your answers are creative and novel, but to be candid they appear to have little or nothing to do with the original public meaning of the Constitution. So I think my search goes on.
9.9.2008 11:09am
Prosecutorial Indiscretion:
I'm a member of the Federalist Society, and I love the way we foster debate on campuses. But, and this is the part I shy away from, the group was founded to shift power to the Judicial branch to allow a conservative judiciary to legislate from the bench to accomplish conservative goals that were unattainable in the legislature: removing restrictions on church/state separation, especially as related to prayer in public; strengthening of 2nd amendment protections; and the tearing down of Roe v. Wade.

Apart from the 2nd Amendment issue, these goals were unattainable in the legislature because the Court constitutionalized them. The less deferential a Court is to the more democratic institutions of government, the more politicized the Court necessarily becomes, as every other avenue of recourse is precluded.
9.9.2008 11:16am
one of many:
Snark aside, many people I talk to genuinely believe that 'fairness' should be a consideration.

I have no problem believing that, and I suspect those who look to Holmes (or even better Learned Hand) as the model of a perfect is distinct minority, but a consideration is not a basis. It may be that I was just reading too closely the question (Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?) and that the polled really only intended that fairness&justice be a consideration when they said the later. I agree that it is a poorly worded question that doesn't capture a lot of varieties of thought, but still given those choices I'm amazed almost 1/3rd of the population (and 1/2 of Obama supporters) opted for the latter choice, have these people given any serious thought to what such a system would be like?
9.9.2008 11:25am
Sarcastro (www):
Constitution or Fairness.
Rugged Freedom or wussy dependance.

Choose. But choose wisely,

Cause you can't choose both!
9.9.2008 11:31am
paul lukasiak (mail):
So, you are upset that they didn't load the question up too much. Gotcha.

the question was already loaded, in that it placed "text" in opposition to "fairness"/"justice" -- when the actual question should concern how the concepts of "fairness" and "justice" should be interpreted -- based on "reality" in the 18th century or 21st century. Indeed, a far more interesting question would concern the "text" as it applies to national defense issues, because it is clear from the text that we would have to dismantle most of our national defense infrastructure were we to not 'adapt' the constitution to changing realities.

Your "amendment" arguement is specious -- the abolition of slavery by constitutional amendment was necessary because slavery is specifically permitted in the 18th century constitution.

Let me put it this way.... the role of women as understood today in very different from that of 1787. And the question for interpreting the constitution is whether an amendment is required to ensure full equality under the law for Americans regardless of gender, or whether our modern understanding of the role of women (that they deserve full equality under the law) means that no constitutional amendment is necessary.

A simple majority of both houses of congress could wipe away all federal 'equal protection' provisions for women, if you believe that the constitution should be interpreted based on 'original intent', because in 1787 the idea of female equality under the law was practically non-existent. But if you were to tell people that women have no right to equal treatment under the constitution, they'd be appalled....and many (if not most) of those who think that the "text" of the constitution should reign supreme would revise their answers.
9.9.2008 11:40am
Mark Field (mail):
The poll result is interesting, but the question was incomplete. Where I think it goes wrong is in the excluded middle. For example, people could believe that courts should use considerations of fairness and justice when interpreting ambiguous or general terms in the Constitution. Or, they might believe that precedent should give way to the text (assuming they're inconsistent). There are probably other options as well. Given the two choices, people were forced to pick one and did so.

This debate is centuries old, you know. Courts of equity developed precisely because people perceived that the common law courts were applying the language of precedent and statute in hypertechnical ways which defeated the whole purpose of the legal system (justice). This debate was particularly sharp shortly before the Revolution as a result of the theories and leadership of Lord Mansfield, and the Founders were familiar with it. In order to assure that the new legal system would both follow the law and achieve justice, the judicial power extends to all cases in law and equity arising under the Constitution. There's a place for both.
9.9.2008 11:46am
A.W. (mail):
Paul

> Your "amendment" arguement is specious -- the abolition of slavery by constitutional amendment was necessary because slavery is specifically permitted in the 18th century constitution.

Yes, that is true. Do you think the people who believe in following original intent only want to follow the first ten amendments?

> A simple majority of both houses of congress could wipe away all federal 'equal protection' provisions for women, if you believe that the constitution should be interpreted based on 'original intent', because in 1787 the idea of female equality under the law was practically non-existent.

Yeah, and if you know how the framers of the Fourteenth Amendment truly felt about women, not to mention the framers of the 19th, your theory that a simple majority of both houses could take away all of women's rights falls flat.

Indeed, given the 19th amendment, how on earth are they ever going to find that "simple majority?" Women ARE the majority.

Oh, and by the way, its never a simple majority. Yes, Virginia there is such a thing as filibusters.

Really, are you so ideologically blinkered as to think anyone thinks that following original intent means 1) women don't get to vote and 2) slavery is allowed?

Indeed, the real danger to those provisions is the idea that what is actually written doesn't matter. Once you divorce constitutionalism from the constitution, then all that is facially prohibited becomes possible. You presumably believe that what is current will be progressively more liberal, based on the assumption that "progress" is inevitable and irreversible. But tell that to the newly freed slaves in the South in the 1870's, who were terrorized back into a state barely distinguishable from slavery. Tell that to the gay men in the Weimar republic as their country descended into Nazism. In Plessy, a court concerned more with the then-current understanding of justice and fairness, rather than the original intent of the Fourteenth Amendment, declared a doctrine of separate but equal. By your doctrine, the Supreme Court did the right thing. And never mind the feelings of a generation that shed their blood to put the opposite view into the document.

But funny, i suspect you are not a fan of the plessy decision, even as your logic leads us inevitably toward the next one.
9.9.2008 12:13pm
T Hart:

Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents


My problem with this question is that it seems to me that in the last decade or so, these two ideas seem to be at odds. U.S. v. Lopez construed the Commerce Clause as written in such a way that went counter to 60 years of precedent. Crawford v. Washington took an originalist approach to the Confrontation Clause which effectively overruled 20 years of precedent.

Regardless of which outcome or approach you prefer, it seems odd to me that you can lump both ideas into one view of the role of the judiciary when there has been such tension between the two in recent years.
9.9.2008 12:27pm
B Dubya (mail):
I am not a lawyer. What a surprise, huh.
Jurists should not legislate from the bench. To me, that statement means that the several Justices should frame their decisions on the law strictly based on what the Constitution says, based on the language presented at the time of the decision, and not on the legal climate of Europe, or the PC Kultur of the day, or even on the much hallowed intent of the framers (as if we can read minds across nearly 300 years). Even though I understand that Chief Justice Marshall set the precedence of the Court being the arbiter of things constitutional, I instinctively distrust precedence at being little more than a lazy way to avoid the thoughtful process of arriving at a well considered opinion based on the facts of the case and the law that may or may not govern.
Jurists, especially those on the SCOTUS, have a special duty and relationship to the Constitution, to preserve it and to enforce its strict limits on government in order to safeguard the liberty that brought the Constitution to life. To fail to recognize this duty, and to act accordingly, is to cause the entire hard won structure to fail.
Consider this. Why does the United States have an orderly transition of the Executive every 4 to 8 years, instead of periodic bloodlettings associated with power transfers in the third world? Because the Revolution of 1776 became the victory of liberty, given form in the Constitution. That victory can only be sustained with faith in its continued existence. Conservation of that bedrock faith should and must be the Court's first duty. That is what a conservative jurist is. Any other kind betrays their office.
9.9.2008 1:02pm
Ohio Scrivener (mail):
Some on the left have become enthralled with a living constitution because they can only imagine the constitution moving in their direction. They suffer from a lack of imagination. They think the courts will be ruled by philosopher kings, while they lay the foundation for tyrants.
9.9.2008 1:23pm
A.W. (mail):
Ohio

That was downright eloquent. Nice.
9.9.2008 1:30pm
Michelle Dulak Thomson (mail):
Paul Lukasiak,

Let me put it this way.... the role of women as understood today in very different from that of 1787. And the question for interpreting the constitution is whether an amendment is required to ensure full equality under the law for Americans regardless of gender, or whether our modern understanding of the role of women (that they deserve full equality under the law) means that no constitutional amendment is necessary.

You know, I've always wanted to ask proponents of the "living Constitution" whether they could defend an understanding of the Fourteenth Amendment under which "equal protection of the laws" did not, by obvious implication, grant women the vote. If the 14th doesn't do that — interpreted generously, in the modern manner — why not? It seems a much smaller stretch than Roe does to this non-lawyer.

Me, I would much rather have the 19th Amendment there in the actual document than, as it were, interpreted into it. Because what can be interpreted in can as easily be interpreted back out again. If, say, a 22nd-century understanding of "equal protection" happened not to include female suffrage, I'd just as soon the interpreters had an unambiguous text to contend against.
9.9.2008 1:30pm
Sarcastro (www):
B Dubya


Conservation of that bedrock faith...


Thank God the Constitution isn't like the Bible and open to more than one interpretation. Luckily the Constitution is full of evidence my way is right. Too bad everyone else lacks the imagination to see it my way.

Those 9 black-robed tyrants are laying the foundation for tyranny! And Marxism! Marxist Tyranny!

If only there were no judicial review, and we had rule completely by people, society would be super!
9.9.2008 1:31pm
loki13 (mail):
I have always been wondered why, on VC, there is not an equivalent of Godwin's law for invoking Plessy. Anytime you invoke Plessy to caricature your opponent's views of the Constitution, you lose.
9.9.2008 1:52pm
Jon Roland (mail) (www):
OrinKerr:
Your answers are creative and novel, but to be candid they appear to have little or nothing to do with the original public meaning of the Constitution. So I think my search goes on.


You appear to be misframing your search, by trying to make all Supreme Court decisions "interpretations" (rather than "constructions" -- there is a difference) of the Constitution. The problem arises in large part because the SC often pretends that is what it is doing, when in truth it is sitting as a court of equity, and the Constitution allows that, provided that equity is not in conflict with text and what can be logically inferred from text.

So it is not unoriginalist to allow for SC equity decisions. Quite the contrary.

And my answsers to your question are neither creative nor novel. Unfamiliar to you, perhaps, but well-grounded in legal history and theory.

You won't find what you are looking for if you don't understand your own question. One way I am creative is to have identified a field of semiotics, the theory of signs, I call pynthantics, the science and art of posing questions (and perhaps getting answers). It is, essentially, the science and art of extracting information from a system in a usable form.

For more on the topic see my short essay on constitutional construction.
9.9.2008 2:05pm
A.W. (mail):
Sarcastro

Aside from your nihilistic intellectual vandalism, what have you got?

Its not enough to say the other side's position is flaws: you must also say your side is more correct.

Of course words like equal protection have debatable meanings. But living constitutionalism is really the declaration that you aren't interesting in finding out the actual meaning of the words.

But riddle me this. If the framers intended to allow the courts to do whatever they pleased, why didn't they just say that? Why pretend to write things down if their words don't matter. Why not just say, "We the people have decided to abdicate government to the Supreme Court, who shall write a constitution for us and change it at their whim, and will decide whether or not we the people have a say on the issues most vital to this republic"? It would have taken a lot less time to write that then what they did. And it would have saved time writing amendments, because no one would bother. So if that is what they meant, how come it is not what they said?

Finally, I don't see anyone arguing against judicial review. We are just debating whether it should be based on the constitution itself, or merely the whim of 5 justices. And if it is going to be based on whim, then why not the whim of the people instead? If the constitution is going to stop meaning anything, then why not straight representational democracy.

Oh, except there is a problem. There still needs to be a referee. So if congress claims to pass a law without a majority vote, or they claim to override a veto without using the proper procedure someone has to step in. That's what the Supreme Court tried to do in Bush v. Gore, but discovered it was impossible for them to do it. Why? Because the bench had become so politicized. And why was that? Because decades of rule by fiat and destroyed any credibility the court as a neutral reader of the law.

Loki13

Are you saying that Plessy was not in line with what people considered to be fairness and justice at the time?

And if it was, what is to prevent us from having another decision like Plessy—both wrong morally and unconstitutional—if we adopt a living constitution model?

As for Godwin's law it only works to the extent that it is invalid. If we were debating American skinheads, I don't think you lose the argument by comparing them to Nazis. If someone said we should wipe out a religious or ethnic group by murder, you would not be out of line to compare him or her to a nazi. The notion that we cannot even look to our own legal history and learn lessons from it is just enforced ignorance.

Liberals love to think that progress goes only one way, but that is not true. The Weimar republic, and experience of African Americans following the civil war is a warning from history you ignore at your peril. The founders wrote the constitution to protect us from the whims of the times. To say we should follow those whims is to ignore what judicial review is all about. And to point out how a specific time in our history demonstrates the folly of that approach is not invalid. More like, it is devastating.

That is not to say that if you support living constitutionalism you like segregation. But if a theory of judicial review would hold that Plessy was correctly decided, then it isn't a very good theory, now is it?

And only a willfully ignorant person would say that is an unfair argument.
9.9.2008 2:24pm
OrinKerr:
Jon Rowland,

I don't think what you're doing has any particular connection to originalism. If the Supreme Court can sit as a general court of equity, even with no federal case or controversy, then I don't know why originalism remotely matters. You just need to label stuff you like that is original as "originalism"; stuff you like that has nothing to do with originalism as "equity;" and stuff you don't like as "wrong." But that's just playing games with labels, not actually anything involving the Constitution.
9.9.2008 2:37pm
Jon Roland (mail) (www):
paul lukasiak:
And the question for interpreting the constitution is whether an amendment is required to ensure full equality under the law for Americans regardless of gender.


The above words provide an excellent example of how confusion over constitutional construction can arise.

The Constitution, as written, did recognize equal rights -- of women, slaves, children, whatever. The problem is that the exercise of rights can be disabled. Disablement is not denial or removal of the right, just restriction of the exercise of it, a key distinction in law that is lost on most moderns.

Essentially, these customary disabled classes were non sui juris, legally incompetent, such as a retarded person might be ruled by a court to be. Equal rights, but lacking the capacity to defend them without a guardian.

What became the Fifth Amendment provided that "No person shall be ... deprived of life, liberty, or property, without due process of law." The legal prerequisite to deprivation is disablement, so the question becomes, was the customary disablement of liberty and property of women (under the doctrine of coverture), of slaves (under the doctrine of servitude), or children (under the doctrine of minority) compliant with the requirement of "due process of law"? I would argue that logically it was not. "Due process of law" implies a judicial proceeding specific to an individual, not just custom, policy, or practice. There has been a contradiction between the actual words of the Constitution, as amended, and customary practice. We have largely removed that contradiction for women and slaves, but it persists for children, and I have argued the Constitution needs to be amended to allow an exception for the disablement by custom or statute of the exercise of the rights of majority, or else a court needs to disable those rights for each child born.

I am somewhat attentive to this issue because my own disabilities of minority were removed by a court when I was 13, making me a legal adult for all purposes except voting.
9.9.2008 2:37pm
Sarcastro (www):
A.W. Just to add to your points:

1. Believing my side is right totally precludes saying the other side is reasonable! It's my way or the highway! No one can believe a diversity of views on the Court is a good idea!

2. The founders left no room for Judicial interpretation in the Constitution, only the following of their dead hand! They made it very clear that the Constitution was to be revered by the faithful as inviolate. But also not the solution to most problems. Holy yet distant from human affairs.

3. The living Constitution is absolutely equivalent to naked realism. There is no middle grond between following original intent and making up the law as you go along!

4. The Supreme Court has only recently been politicized. I know the history of Martin v. Hunter's Lessee is one of boring disinterestedness.

5. Plessy is an example of judicial activism, and Brown is an example of originalsm! I say the previous declarative sentence because it is true.
9.9.2008 2:39pm
Mark Field (mail):
Could there be any stronger confirmation of Dilan's point than the posts in this thread?
9.9.2008 2:42pm
Jon Roland (mail) (www):
OrinKerr:

If the Supreme Court can sit as a general court of equity, even with no federal case or controversy, then I don't know why originalism remotely matters.


But that is not the position I have set forth. The Constitution restricts jurisdiction to federal case or controversy, and in other ways, and it is only in the areas where the Constitution is silent that the Court may decide in equity.
9.9.2008 2:46pm
trad and anon:
You know, I've always wanted to ask proponents of the "living Constitution" whether they could defend an understanding of the Fourteenth Amendment under which "equal protection of the laws" did not, by obvious implication, grant women the vote. If the 14th doesn't do that — interpreted generously, in the modern manner — why not? It seems a much smaller stretch than Roe does to this non-lawyer.
Under the modern manner, of course. But if you're going based on the meaning of the words as understood in 1868, it clearly didn't grant women equal suffrage, or any other substantive gender-based protections. That would be why, until the Constitution was amended to say otherwise, women didn't get the suffrage unless the state legislature approved it. Or why states had to pass Married Women's Property Acts.
9.9.2008 3:06pm
Nunzio:
The 14th Amendment didn't grant blacks (male) the right to vote. That's why there's a 15th Amendment, and it applies to both the states and federal government.

The original meaning/understanding/intent of "equal protection of the laws" didn't mean what it means now.
9.9.2008 3:26pm
EIDE_Interface (mail):
The Constitution should be disregarded whenever liberals like it.
9.9.2008 3:46pm
A.W. (mail):
Sarcastro

> Believing my side is right totally precludes saying the other side is reasonable!

I didn't say they were unreasonable, just wrong. Where in the constitution does it grant the Supreme Court the right to amend it by fiat?

> No one can believe a diversity of views on the Court is a good idea!

There should be diversity within a baseline. That's true in a lot of contexts. For instance, there can be a lot of diversity on the subject to free speech. But if you think that it is okay to suppress speech merely because you don't like it, you are not suited for any public office. There can be great diversity in how you think election law should work. Secret ballots or not? Party lever or not? And so on. But if you think its okay to take all the ballots out and replace them with fakes that vote according to your preference, you should also be run out of public life.

And you can disagree rationally about what the constitution actually says. But if you don't care what it says, you shouldn't sit on any court, and maybe not hold any public office at all. There are some baseline rules in our government that has to be upheld, in order to keep it from becoming a tyranny, and the living constitutionalists break them all the time.

> The founders left no room for Judicial interpretation in the Constitution, only the following of their dead hand!

Au contraire. There are areas of the law where there can be a federal common law. But the living constitutionalists want their common law to trump statutes and that is where they are wrong.

> They made it very clear that the Constitution was to be revered by the faithful as inviolate.

Not at all. There is article V.

> But also not the solution to most problems. Holy yet distant from human affairs.

Actually, most problems should be solved first at the state level, and where the Federal Government becomes involved, most of the time it should be the legislature that provides the solutions—to the extent that government provides the "solutions" to life's problems at all.

> The living Constitution is absolutely equivalent to naked realism.

Living constitutionalism is a cowardly form of "naked realism." They won't dare go against something as clear and easily understood by lay persons as the rules for how to pass a law. Instead they hide inside the phrases that are less accessible, pretending they are trying to understand what they mean, but in reality ignoring them. The Kennedy opinion showed that although they thought they were well-concealed, they were naked as the emperor in his invisible garments.

> The Supreme Court has only recently been politicized.

If you don't think it is worse today than ever in our history, you are kidding yourself. And all of it, frankly, you can lay at the feet of Roe. Miranda didn't help. Who knew, the constitution contained a hidden script for cops read from when they arrest you.

> Plessy is an example of judicial activism, and Brown is an example of originalsm!

I was clear the first time I said it. whatever words they spoke, Plessy was living constitutionalism, and Brown was facially living constitutionalism, too, but the actual result was what the framers intended. Here, let me get sarcastic on you, too:

Judges always are 100% honest! And no one ever does the right thing for the wrong reason!

If you think the founders of the Fourteenth Amendment thought segregation was constitutional you are wrong.
9.9.2008 4:28pm
OrinKerr:
Jon Roland writes: "it is only in the areas where the Constitution is silent that the Court may decide in equity."

But what does that mean? The Constitution doesn't say if it's unconstitutional to think Jon Roland is wrong. The document is just silent on the question. So if the Supreme Court wants to order everyone in the nation to say Jon Roland is the smartest person in the universe, or else be punished with one year of prison, then presumably that is fully within their powers of equity to do so. After all, the Constitution doesn't speak to the question, like it doesn't speak to most questions.
9.9.2008 4:29pm
lkcjpd:

Could there be any stronger confirmation of Dilan's point than the posts in this thread?
Not really. The poll is the stronger repudiation of Dilan's point that goes unanswered. The most interesting response I've seen so far is the claim that conservatives and the Fedsoc have been so successful in framing the debate that liberals have been effectively duped into believing in activism themselves. I'm dubious, but even if we grant that conservatives are somehow 'at fault' for propagandizing to liberals, it doesn't change the finding that liberals have internalized the propaganda, and believe that "what is written" in the constitution is less important than it should be.

Your concerns about "the excluded middle" are thus misplaced. What the results show is that when it comes to the crunch -- when liberals have to choose between textual fidelity and their sense of fairness or justice -- the latter prevails. This reveals, at a minimum, an inversion of priorities that conservatives have long been in high dudgeon about.
9.9.2008 5:13pm
Richard Aubrey (mail):
If, as somebody on Jeff Goldstein's blog noted, a whole bunch of people are going to tell the founding document of the nation to take a hike, is it okay to question their patriotism?
9.9.2008 5:19pm
Eli:
Good Point From bench.nationalreview.com

"As Professor Kerr sums it up: "The take-away: McCain supporters care about the Constitution and the rule of law, while Obama supporters, well, not so much".

Now throw into the mix Ed Whelan's link to Jeffrey Rosen's glad news that the Democratic ticket is chock-full of constitutional law professors: both Obama and Biden have taught the subject in law schools.

Then comes the question: do these constitutional law professors care any more about the Constitution than their supporters do?"
9.9.2008 6:00pm
Mark Field (mail):

What the results show is that when it comes to the crunch -- when liberals have to choose between textual fidelity and their sense of fairness or justice -- the latter prevails. This reveals, at a minimum, an inversion of priorities that conservatives have long been in high dudgeon about.


Except that, of course, it doesn't reveal any such choice at all. It reveals that people answered the poorly drafted question as best they could, but not what their actual beliefs are. All that has happened on this thread is that the conservatives have read into the poll results their attitudes towards liberals which Dilan correctly criticized. None so blind as those who will not see.
9.9.2008 8:02pm
lkcjpd:

Except that, of course, it doesn't reveal any such choice at all.
Mark, you are contradicting yourself. Earlier you said that "Given the two choices, people were forced to pick one and did so." How is this different from my comment that "when it comes to the crunch -- when liberals have to choose between textual fidelity and their sense of fairness or justice -- the latter prevails"?

They were choosing -- and the choice reveals much about their priorities.

It reveals that people answered the poorly drafted question as best they could, but not what their actual beliefs are.
This is grasping at straws. When forced to choose between textual fidelity or what they take to be "justice" or "fairness", many chose the latter. Are you saying that they aren't expressing a preference for the latter choice? It seems to me that they are. Your objection amounts to saying that liberals chose haphazardly without expressing any such preference. (Funny how conservatives seem to express the reverse preference given the haphazard nature of the response -- but this must be purely coincidental, right?)

You are second-guessing the result while denying its import. Weak imo.
9.9.2008 9:59pm
Mark Field (mail):

Mark, you are contradicting yourself. Earlier you said that "Given the two choices, people were forced to pick one and did so." How is this different from my comment that "when it comes to the crunch -- when liberals have to choose between textual fidelity and their sense of fairness or justice -- the latter prevails"?


Suppose someone calls you up and asks you this question: who do you prefer for President, Mike Huckaby or Hillary Clinton? Now, you being a good respondent, you try your best to give an answer, so you say "Huckaby" (I'm making this up, of course; I have no idea what your politics are). But Huckaby isn't really your choice, he was just the lesser of two evils in your mind. And the whole point of the expression "lesser of two evils" is that both are bad; neither is a "real" choice.

My imaginary poll didn't reveal anything at all about what you think. Nobody would be justified, for example, in saying the poll revealed you as a creationist "when it comes to the crunch". Nor did this poll reveal anything about real attitudes towards interpreting the Constitution.


When forced to choose between textual fidelity or what they take to be "justice" or "fairness", many chose the latter. Are you saying that they aren't expressing a preference for the latter choice?


Who said there had to be a choice? Where was the question which asked "do you believe that proper interpretation of the text requires consideration of justice or fairness?"?

The only thing people could do with this poll was pick one aspect of a false choice. You're no more justified in drawing your conclusion than I would be if I used it to claim that conservatives don't give a hoot about justice or fairness.
9.9.2008 10:59pm
LM (mail):
Will Lewis got it right. Most people probably don't understand what the question means. They just have a vague idea what they're supposed to think the answer is. The anti-intellectual strain of Republican populism gets pretty quiet in these threads. Don't we think John and Jane Q. Public should be able to play along at home when the question is parsing different brands of originalism? After all, there's nothing more basic to our civics than the Constitution. Might intelligence and an "elite" education be useful for understanding it?
9.10.2008 12:15am
lkcjpd:

My imaginary poll didn't reveal anything at all about what you think.
On the contrary, it does: it reveals that I prefer Huckabee to Clinton (for whatever reason).

Nobody would be justified, for example, in saying the poll revealed you as a creationist "when it comes to the crunch"
You are muddying the inference with sophomoric logic. Preferring one candidate over another does not entail that I endorse everything the candidate believes. So of course it would not "reveal [me] as a creationist" -- the poll you present asks nothing about creationism, only which candidate I prefer (surely I can prefer a candidate without agreeing with every jot and tittle of his beliefs). However, if the poll specifically asks about which belief I prefer, and I picked 'creationism' -- then you would indeed be justified in saying that the poll revealed me as a creationist.

The Rasmussen poll asks specifically about beliefs -- whether textual fidelity is to be preferred to the respondent's sense of "justice" and "fairness". Since most liberals chose the latter, it would be entirely justified to say that "fairness" trumps textual fidelity for many liberals.

Who said there had to be a choice?
You did. I quoted you above quite explicitly. You are contradicting yourself.
You're no more justified in drawing your conclusion than I would be if I used it to claim that conservatives don't give a hoot about justice or fairness.
But that's not at all analogous to what I claim. I did not say that liberals don't give a hoot about the text of the Constitution. I said liberals prefer their sense of "fairness" to the text of the Constitution, and that when it comes to the crunch would prefer that "fairness" trumps text. So you would be quite justified in claiming, analogously, that conservatives prefer textual fidelity over their sense of "fairness" -- and I would be justified in claiming the corollary for liberals. (This is indeed what the poll indicates.)

Mark, your reasoning has been disappointingly specious, but twisting what I said to fit your false analogy especially doesn't sit well with me.
9.10.2008 12:30am
Jon Roland (mail) (www):
OrinKerr:
But what does that mean? The Constitution doesn't say if it's unconstitutional to think Jon Roland is wrong. The document is just silent on the question. So if the Supreme Court wants to order everyone in the nation to say Jon Roland is the smartest person in the universe, or else be punished with one year of prison, then presumably that is fully within their powers of equity to do so. After all, the Constitution doesn't speak to the question, like it doesn't speak to most questions.


Your statement is unclear on the concept of equity jurisdiction. The Constitution is not silent on the above points. There is no power to order people to proclaim some belief. Besides violating the First Amendment, it also violates the constitutions of nature and society. Equity only includes such relief as declaratory, injunctive, or performance, and not disablement or deprivation of the exercise of the right to life, liberty, or property, which is law jurisdiction, either constitutional, statutory, or common. Prison would violate ex post facto and/or bill of attainder prohibitions.

The nondelegation of a power to Congress is not silence. It is equivalent to a declaration of a right against government, or more precisely, an immunity. Equity jujrisdiction is not some kind of delegation of a plenary power.
9.10.2008 2:31am
Jon Roland (mail) (www):
Eli:

do these constitutional law professors [Obama and biden] care any more about the Constitution than their supporters do?

Based on comments made by Biden in public appearances, I find he cares even less. Can't yet say about Obama. But conlaw classes are generally not about the Constitution, but about how to selectively invoke constitutional precedents to win a case for one's client, with little concern about whether the precedents are consistent with the original public legal meanuing of that Supreme Law.

One of the things I find most attractive about devout Christians like Palin is reputed to be is that they tend to take their oaths, and in particular their oaths to defend the Constitution, seriously. I can tolerate some of their odd religious beliefs and practices to get that. I spent a couple of years on Capitol Hill working with many of the members of Congress and never once found one who took that oath seriously, or any oath, unless there was a risk of exposure of infidelity to it, such as being caught committing perjury in a court.

Most of the lay constitutionalists I work with started by taking that oath, then set out to learn what they had committed to defend, never hesitating to abandon a policy preference if it conflicted with the Constitution. Now of course they might sometimes seek a strained construction to support their preference, as some do to support their opposition to abortion, but with some patience I can usually lead them back to the Constitution with historical evidence and reason.

There is much more serious rediscovery and exploration of the Constitution among voters than most law professors probably realize.
9.10.2008 2:49am
David Warner:
Sarcastro:

"There is no middle grond between following original intent and making up the law as you go along!"

Oh yes there is!
9.10.2008 4:56am