Sunday, November 22, 2009

Originalism in Constitutional Law

Our regular readers are aware of our blog contributor King of Ireland's challenge to "Culture Warriors" on constitutional interpretation. Ed Brayton was kind enough to respond, and took the discussion over to his digs Dispatches from the Culture Wars. You can read his thesis there, and this was my reply:

I had replied to your question on Loving v. Virginia [the seminal Supreme Court racial intermarriage case] at American Creation with this:

A ban on interracial marriage would have meant that marriages [black-black, white-white] would have been "separate but equal" based on race.

...continuing my previous observation

As for Plessy, etc., a "textualist" reading of the Fourteenth Amendment would say that if they meant "separate but equal" instead of "equal," that's what they should have written.

First you look at the text, and it says "equal." Then, to not get sophistic about it, you look at the "original understanding" by the ratifiers, in this case, the 14th Amendment: Equality for black folks was clearly understood.

For the record, I do not endorse "all three" methods of "originalism," and in fact I was quoted as citing James Madison approvingly against "original intent," that of the Framers. As a matter of fact, Madison was delaying publishing his notes of the Framing debates:

"As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses."


In our original exchange, I wrote

"In other words, we may have trouble figuring out what they said or thought back then, but it's not hard to tell what they didn't say..."

The core virtue of "originalism" is simply this: Where the constitution is silent, it is silent.

There is no constitutional, federal or judicial cure for the zillion things that make up the human condition, and "principles" or "penumbras" often become contentious if not tortured and absurd. Sometimes, you just have to pass a law.

One would think Michael Vick has a constitutional right to dispose of his property as he sees fit, but we don't permit cruelty to animals. The constitution is silent on cruelty to animals; a law banning it is constitutional, but so would be a law that protects it, much as that offends our sensibilities, our "standards of decency," if you will.

The same would be true of cannibalism [assuming the eat-ee gave his permission]. And so on.

Now, even if [Ed Brayton's] audience finds my answer on Loving to be unsatisfactory (I expect they will), I object to the nature and reframing of this debate on "originalism" at the outset: Even if the method could be proved to be inadequate [in some difficult cases], as Justice Scalia puts it [I quote him not out of authority, but out of the fact he does this for a living, puts the point well, and my natural laziness encourages cut-and-paste whenever possible]:

"There is saying in politics that you can't beat somebody with nobody. No matter how bad the candidate run by the other party is, unless you put somebody up you're going to lose. It's the same thing for philosophies of constitutional interpretation. If you don't like originalism, and some originalism pause to debate. Originalism has a lot of problems. It's not always easy to do. Sometimes it's very hard. Sometimes it's awful hard to tell what the original meaning was. I'll acknowledge all of that. But the real problem is not whether it's the best thing in the world, but whether there's anything better. And what you have to ask the non-originalist law professor or whoever else is, "what do you propose?" What does a judge consult, if not the original understanding of the text? What binds the biases of judge? Prevents him from simply implementing his own prejudices? What is the standard? And the fact is, I have never heard another one that has a snowball's chance in hell of ever being adopted by more than two people. What are you going to use? The philosophy of Plato? Natural law? That's handy. That will tell judges what to do. Some suggest the philosophy of John Rawls. Public opinion polls? Is that what you want? What do you want to use? If you don't take what I suggest, what is the standard? The answer is, there isn't any."


So, it's fair to put "originalism" on trial, but not as the only defendant. My criticism of Ed Brayton's method of "principles" stands, that

I think by the time we get done claiming "principles," we've obliterated history and fact, and substituted abstractions for reality and reasonableness. This will not do.

I thank Ed for his courteous reply, and have offered him space on our mainpage if he'd like to make a lengthier reply than is suitable for a comments box.

18 comments:

King of Ireland said...

I commend you for replying. So far it is civil overthere. I was glad that Ed gave American Creation some air time. There are some people overthere that would benefit from the discussion we have here and vice versa.

Ed Brayton said...

My reply was posted as a comment on my blog:

http://scienceblogs.com/dispatches/2009/11/conservative_originalism_and_i.php#comment-2093821

I will have a follow up in the morning on the subject of good faith.

Tom Van Dyke said...

Ed, I posted my reply [reprinted in the OP here] in the comments section of your blog. If you choose not to reciprocate home field advantage, then so be it. I even offered you mainpage status for your reply.

"I am attempting to demonstrate essentially the same point here using TVD as my foil, that those who argue in favor of conservative originalism don't really mean it - they only mean it when it leads to results they like."

Make sure you include this in your post on good faith. It was made before I had the chance to respond to your original post.

Pinky said...

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Originalism is an interesting concept.
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Originally political liberty was all about the People (as a group) being in juxtaposition to the Crown.
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They were not against their own prejudices and biases.
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Democracy in America never started out to be all fired up for the rights of the individual.
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Gordon Woods' essay, "The History of Rights in Early America", in Shain's "The Nature of Rights at the American Founding and Beyond" makes that quite clear; but, one or two quotes won't convince any contrarian. You will have to read the entire text.

"The colonial assemblies, which persumably spoke for the people, continued to punish individuals for seditious libel under the common law. In other words, liberty of the press existed against the Crown but not against the representatives of the people". Wood credits his authority for making this statement to Bailyn Lee in Ideological Origin of the American Revolution, 189
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Pinky said...

for subscription purposes only.

jimmiraybob said...

...Bailyn Lee in Ideological Origin of the American Revolution, 189

I assume this refers to a quote by Author Lee, which is on page 189 of my edition. Bernard Bailyn being the author.

The quote is contained in the following passage:

"But thought had shifted rapidly in the decade that followed, Arthur Lee exhorting his counrtymen in 1768 to draw up a petition of rights 'and never desist from the solicitation till it be confirmed into a bill of rights,' and Andrew Elliot a year later despairing of all solutions save that of 'an American bill of rights.' No voice was raised in objection when in 1776 the idea was proclaimed, and acted upon, that 'all the great rights...should be guaranteed by the terms of a written constitution."

But what thought had shifted rapidly? Here's the preceding:

"Must not the ideal now be reduced from the radiant presence and a conglomerate legal tradition to specific enumerated provisions? Must not the essential rights of man be specified and codified if they were to serve effectively as limits on the actions of the courts and legislatures? In 1765 James Otis had fulminated at the mere suggestion that a document might profitably be drawn up stating the 'rights of the colonists with precision and certainty.' Insolence, he had called it, pedantry and nonsense; Britons had no need for 'codes, pandects, novels, decretals of popes.' 'The common law is our birthright, and the rights and privileges confirmed and secured to us by the British constitution [JRB - see "conglomerate legal tradition" referenced above] and by act of Parliament are our best inheritance.'"

The quote doesn't directly address whether in the view of the colonists "Democracy in America [had or had not] started out to be all fired up for the rights of the individual."

But, instead, is about codification vs. non-codification of the rights.

Elsewhere, in section V (Power and Liberty) of The Ideological Origins of the American Revolution, there is more than enough evidence to support an early (pre- Revolution) strain of individual rights as subjects of the Crown (re: life, liberty, and the pursuit of property/happiness not being held by the community but by individuals).

In trying to suss out a balance of power between the individual and the state there seems to have been, and continues to be, a fundamental tension between the rights of the individual vs. the good of the community. This tension is played out in the political realm.

If I'm missing something please let me know, otherwise, I hope to have a chance to read Wood's essay.

[the major problem with this blog isn't its sometimes cantankerous nature but its enormous reading requirements :)]

Tom Van Dyke said...

JRB, this is a fantastic contribution, and I think you and Phil---Pinky---are agreeing far more than you know. He's educated me lately that the colonists' primary desire to regain their rights as Englishmen, as well as on the question of individual rights vs. the rights of the smaller communities in the face of a larger central gov't. [The heart of federalism.]

I'd love to post this immediately on our mainpage, but if you'd like to knock it into a formal essay---complete with your own personal take on what Bernard Bailyn is saying here, you have the floor.

Email me, esqtvd at a-o-l dot com.

Exc stuff, man, and I think Pinky agrees.

King of Ireland said...

Gary Amos' contention is that when this quest to restore their rights as Englishmen failed then went on to use interpostion arguments and claim natural rights.

I think this might tie in with the book Brad was advertising in his last post. There seems to be a good synthesis going on lately. A lot of what Cato and Postitive Liberty have been discussing lately is about all this and what the birth of modernity looked like and what the origins were.

King of Ireland said...

Tom,

Ed offered you his main page to reply about the Loving case. I think you should do it. But I understand if you do not.

Tom Van Dyke said...

I already replied about the Loving case to Ed. Definitively. He walked past it. So far.


My argument is: A ban on interracial marriage establishes marriage as black-black or white-white. Black marriages or white marriages. Separate but equal. What crap.

As I wrote, if they wanted to pass the 14th Amendment with "separate but equal," then they should have written "separate but equal."

But they wrote "equal." An originalist/textualist reads "equal" as equal in the 14th Amendment, because that's what it fucking says.

In 1868 when the 14th Amendment was ratified, or in 1967 [Loving v. Virginia], "equal" means the same thing. Equal. It's a pretty plain word with a plain meaning.

But Joe, I accepted Ed Brayton's offer. Go check it out. Comment #58.

http://scienceblogs.com/dispatches/2009/11/van_dykes_definition_of_good_f.phpWe'll see if he accepts my acceptance.

;-)

The deal is that Ed Brayton posts here, I post there, unedited and uncommented on, as guestbloggers as I originally proposed. Jonathan Rowe will be moderator. If Ed accepts...

I did my part, and "HT" means "hat tip," meaning you. I've been quite angry with you for forcing this on me, but friends do that for each other when that's what they need. Our friends know us better than we know ourselves, right? Otherwise they ain't friends in the first place.

[Something else for us to discuss someday. Does the Golden Rule mean you leave the other guy alone, or as his friend, kick his ass when it needs kicking?

I've been wondering about that one lately.]

Tom Van Dyke said...

OK---I'll post my reply to Ed Brayton at his blog here:

Why not?

http://scienceblogs.com/dispatches/2009/11/van_dykes_definition_of_good_f.php



Mr. Brayton---Ed---I accept your challenge and offer of your mainpage for my arguments. Very cool, a very fair and righteous offer.

In reciprocation, you will of course also have the mainpage at my groupblog, American Creation, as previously offered, unedited and uncommented upon by me as you'll be a guestblogger. It wouldn't be fair for me to foul your every argument with a rebuttal. Your remarks will appear in their entirety as a guestblogger, without editing or comment.

I hope you'll accept Jonathan Rowe as our moderator, as he is our mutual friend and mutual group-blog-brother. Who else would we choose? Mr. Rowe would have the right and duty to speak up anytime he feels he should. I trust him as a fair man, and I'm sure you agree.

I trust Mr. Rowe to arbitrate the details of our engagement, and accept his word as final.

This could be a beautiful thing for our country in our modest way, Ed, to disagree without being disagreeable and show 'em all how it's possible. You're a Great American and I'll try to hold up my end as one, too.

This won't be a cooperative discussion but an adversarial debate, so a moderator will be necessary to judge when one of us is hitting below the belt. We both already know the rules of civilization, debate, and fair play, so Jon should have little to do.

;-)

We both are not only Great Americans, but gentlemen, surely. The great questions of humanity are not settled in street fights. And I'll police my blog's comments section, and I'm sure you'll do the same.

Or as you elegantly put it yourself:

Disclaimer: Let me add one more thing. If Van Dyke does choose to reply here, I would ask the commenters to keep the conversation civil and respectful. Things have gotten out of hand in previous threads involving him and I've been too busy to police them. But I'm going to make a point of paying attention to this one. If you can't make your argument against him in a civil manner, please don't make it at all. Thanks.

I'll append that disclaimer to all your guestblog posts at American Creation, and will appreciate it when you do the same.

I'm looking forward to it, Ed. Let's show 'em how it's done, GK Chesterton vs. George Bernard Shaw at London's Reform Club. Neither of them were wrong, it was only a question of who was more right. It was a peak of Western Civilization. May we be worthy. Perhaps we'll even get some folks to think for themselves, which should be our highest ambition.

Cheers,
TVD

[HT: King of Ireland]

Pinky said...

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Regarding JRB's comments above on the quotation from Early American Rights essay:

I recommend reading the entire essay as it seems a few quotes won't settle the point; otherwise, why the essay?
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The sense of democracy began to grow at such a rapid pace in those earliest days that the majority WAS living up to the fear that it could represent a tyranny.
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But, even more to the point, the facts we see unfolding throughout the history of the Republic are directly related to the way our views toward rights have and continue to change. The Kennedy and Bishop of Rhode Island is a case in point. That situation is all about rights as defined by the person--Kennedy--and by an outside source of power--the Bishop who represents Rome.
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Now, don't anyone accuse me of attacking the church. This is strictly a question of rights.
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Check it out:
http://www.usnews.com/blogs/god-and-country/2009/11/23/rhode-island-bishop-thomas-tobins-response-to-rep-patrick-kennedy.html?s_cid=rss:god-and-country:rhode-island-bishop-thomas-tobins-response-to-rep-patrick-kennedy
.
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Pinky said...

.
This Patrick Kennedy situation is a very good example relating to how the early American thinking was so local and opposed to outside sources of power.
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And, it expresses an accounting for the great anti-catholic attitudes so prevalent in American history.
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Pinky said...

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We are seeing some narrow focusing of the abortion debate as an example closely related to the slavery problem in America as a Rights Issue.
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And, it allows us to see how the line is drawn that separates conservatives from liberals.
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Will the majority win or will we bow to an outside source of power?
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Tom Van Dyke said...

Hmmm. Perhaps the anti-abortionists are like the abolitionists, on the side of the angels.

Pinky said...

.
Hey, Tom.

Seems as though putting people on one side or the other, we might consider the women as being analgous to the slaves in that they are not in control of their own bodies. This IS a Rights Issue and, as such, it evolves out of the original thoughts of the Founders even though they may not have conceived of the issues with which we might be confronted today.
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It's all part of the serious effort we have to make to get into their heads.
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So, maybe the the Pro-Choice people might be of the same vein that won the Abolition of slavery in America.
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The Founders discussed lists of rights. I think Adams referred to them as "paper barriers". It's almost as though they knew the problems that would arise from too much specificity.
.

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King of Ireland said...

Tom,

I think you might have him on the original language thing. It said equal they undermined it with Plessy wrongly by arguing intent. They said they intention was never really to mix races just to make sure all were equal.

This is controversial but I have spoken to many who teach in the inner city that feel that integration ruined black communities because the kids had to leave their neighborhood schools to be bused somewhere.
I had never thought if it that way until they brought it up.

The Statel laws against mixing in marriage were a clear violation of the 14th amendment. I think the real issue at hand was the North wanting the South's cotton after the crash of 1857 and the South threatening to trade with Europe. Tariffs ensued and thent he secession came.

One could make an arguemnt that the North used race to re-control the South to make sure they had the cotton to make their clothes in the North. All three of the amendments were forced on the South. Probably for good reason but you have to watch sneeky bastards in power they will use good things to grap more power. Look at No Child Left Behind. The Federal Government runs the schools now.

King of Ireland said...

Tom,

I think you might have him on the original language thing. It said equal they undermined it with Plessy wrongly by arguing intent. They said they intention was never really to mix races just to make sure all were equal.

This is controversial but I have spoken to many who teach in the inner city that feel that integration ruined black communities because the kids had to leave their neighborhood schools to be bused somewhere.
I had never thought if it that way until they brought it up.

The Statel laws against mixing in marriage were a clear violation of the 14th amendment. I think the real issue at hand was the North wanting the South's cotton after the crash of 1857 and the South threatening to trade with Europe. Tariffs ensued and thent he secession came.

One could make an arguemnt that the North used race to re-control the South to make sure they had the cotton to make their clothes in the North. All three of the amendments were forced on the South. Probably for good reason but you have to watch sneeky bastards in power they will use good things to grap more power. Look at No Child Left Behind. The Federal Government runs the schools now.