Federalism

An Inconsistent Originalism Beats 'Politics by Another Name'

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In a recent FindLaw essay, the Cato Institute's Robert Levy notes that John McCain has promised to appoint judges who "understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power." That much is encouraging, he says, but McCain's avowed preference for "strict constructionists" and believers in "original intent" is troubling, assuming the Republican nominee understands how those terms are used by constitutional scholars. Levy prefers originalism, a.k.a. textualism:

Originalists interpret the Constitution in accordance with its meaning when the underlying textual provisions were ratified. Sometimes originalists are called "textualists" because they assign great importance to the words actually in the Constitution. As the term implies, originalists insist that the text be interpreted as it was originally understood by those who first wrote and read it—not the meaning that would necessarily be derived from a modern reading of the text.

Originalism is not, however, synonymous with "original intent"—a distinct interpretive tool, supposedly favored by conservatives, that focuses on the values and objectives of the drafters and ratifiers when they enacted a particular provision. As Justice Antonin Scalia has written, "It's the law that governs, not the intent of the lawgiver."…

Just as textualism is not the same as original intent, neither should it be equated to strict constructionism….

Strict constructionism is often identified with more conservative legal scholars. Yet Scalia has carefully distinguished it from his own preference for textualism: "Strict constructionism…is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be….A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."

Levy worries that if McCain is elected and really does appoint disciples of original intent or strict constructionism, they will be insufficiently inclined to pursue "his professed goal to rein in federal power." Even an avowed commitment to textualism, of course, is no guarantee that a judge's decisions will serve that goal. As I've argued, Scalia has been on the side of liberty more often than is commonly appreciated. He broke with strict constructionists by reading the First Amendment to cover flag burning, for example, and insisted on enforcing the plain meaning of the Suspension Clause with respect to "enemy combatants" captured in the United States. His positions on eminent domain, infrared searches, and the federal sentencing guidelines likewise show how applying the original understanding of the text to modern conditions can help curtail the government's power. Most recently, in D.C. v. Heller, he strove to illuminate the meaning of the Second Amendment "as it was originally understood by those who first wrote and read it." At the same time, Scalia somehow managed to read the power to regulate interstate commerce as an excuse to prevent AIDS and cancer patients in California from growing an herbal remedy authorized by state law.

Notably, though, so did the Supreme Court's "liberal" members, and there's little reason to believe Obama's appointees would be any more inclined to enforce the principle that Congress has only those powers specifically enumerated in the Constitution. Furthermore, Levy argues, based on Obama's preference for judges with "empathy" toward members of disadvantaged groups and his belief that "our courts should stand up for social and economic justice," his appointees probably would favor one version or another of "living Constitution" doctrine, which holds that the meaning of the text changes with the times. "When the text of our written Constitution is trumped by evolving societal needs," Levy warns, "then the judicial function is just politics by another name." His Cato colleague Roger Pilon warns that "a 'living constitution,' interpreted to maximize political discretion, can be worse than no constitution at all, because it preserves the patina of constitutional legitimacy while unleashing the political forces that a constitution is meant to restrain." 

In an August column, I noted that McCain joins Scalia in making a marijuana exception to the principles of federalism.

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  1. Scalia is tough one to judge. He will make some good decisions (like the flag burning decision), but he will also make some pretty appalling ones, too.

    His greatest problem is that he seems to let his own personal morality trump his decisions when it comes to “moral” issues such as sexuality or drugs. (His dissent on Lawrence v Texas, medical marijuana v interstate commerce.)

  2. Roger Pilon? I remember hating that guy for some reason.

  3. Libertarians should drop-kick the dildo out of the ass of any judge who judicially negates the “right to privacy” (see Scalia, Thomas).

    The aforementioned Lawrence case, Griswold, Roe, illegal wiretapping to some extent, etc – all depend on this idea.

    I know, I know – the aborto-freaks hate this “privacy” idea…….

    Thus the whole excuse for charades like “textualism” and “constructivism” and “Vatican II worship” and the like…..

  4. Sometimes originalists are called “textualists” because they assign great importance to the words actually in the Constitution.

    I find it depressing that “assigning great importance to the words actually in the COnstitution” is only one school of Constitutional interpretation, and not even the majority view at that.

  5. If any candidate really wanted to shrink government, and for the right reasons, that’s the platform they’d run on.

    Isn’t this article’s quibbling over the campaign’s message — using words that most of us would confuse — just another way of saying that he’s not running for smaller government? Maybe I’m just too much of a single-issue voter there.

  6. I don’t know what school of Constitutional interpretation I subscribe to.

    I think the words of the Constitution, particularly of the Amendments, have a plain meaning that is related to the original intent of the founders, and the ratifiers of subsequent amendments, but not completely bounded by that intent.

    To give you an example, the 1st Amendment clearly and unambiguously grants a fairly absolute freedom of speech – and this is true regardless of the fact that there were lots of types of speech that individual framers probably would have assumed could be banned. The words the framers used granted greater freedom than any one of them might have advocated if questioned directly.

    As another example, the 14th Amendment unambiguously establishes equal protection of the laws. It might not have occurred to anyone who actually ratified that amendment that it could be applied to, say, homosexuals. But the fact that such an application of the amendment did not occur to the ratifiers, and probably would not have been supported by any ratifiers, isn’t relevant. They wrote the words that they wrote and they signed on to a high-minded broad view of equal protection, and if this means that “by accident” they blew up a lot of law they didn’t really mean to blow up, tough. No backsies.

  7. No offense Jacob, because this is an exceptionally well-written post, but it’s beeen a long time since I’ve seen so many words expended to explain something that won’t mean anything at all. McCain means “strict constructionism” to mean “I’ll name judges who don’t like Roe v. Wade or sodomites and who will be just as political as anyone the other side names, just in “our” favor,” just like all the other politicians who use it mean it. How many times are libertarians going to go for the football before they realize that it’s just going to be yanked away as soon as some identity group needs to be pandered to?

  8. Shem,

    Are you suggesting that we finally kick that bitch Lucy right in the face?

    I’m on board.

  9. The constitution does not contain an express right to privacy. The Ninth Amendment, however, provides that enumeration of rights “shall not be construed to deny or disparage others retained by the people.” The Fourteenth Amendment has nothing to do with privacy. Roe and the cases underpinning the “reasoning” in Roe were wrongly decided, as many (and probably most) legal scholars agree. Get over it.

  10. I don’t know what school of Constitutional interpretation I subscribe to.

    How about the Lysander Spooner school?

  11. Abortion is the Godwin’s Law of Reason. Cue the death of any coherent defense of “freedom” as a concept.

  12. Supreme Court and other judiciary appointments is the only argument for McCain that holds water for me. It isn’t enough to get me to vote for him though.

  13. Get over it.

    Its been decided (by the SCOTUS) that we do have a “right to privacy” – although, as you note, that it is not “express”.

    You get over it.

  14. Abortion is the Godwin’s Law of Reason. Cue the death of any coherent defense of “freedom” as a concept.

    Its not just abortion – its contraception in general. The right to privacy was first stated in ‘Griswold’ – a state law which prohibited birth control in general.

    Sadly, we need a federal law to keep the fundies from outlawing condoms and the Pill – that is why I threw in the “Vatican II” crap – its the hardcore idiots who stand in the way.

    (see Scalia, Thomas, and perhaps Alito)

  15. And the supreme court was wrong (surprise!). Virtually everyone agrees. It won’t be the last time the court is wrong, especially since it has become a legislative body masquerading as a panel of jurists.

  16. Well, shrike, SCOTUS landed on the “emanation of a penumbra” “right to privacy” because the only other way for them to strike down the abortion laws would have been a strict reading of the 9th Amendment.

    One they were unwilling to do because that precedent would have opened a distinctly small-government path for Constitutional jurisprudence to take. Soemthing that the Warren Court and its successors have no desire to do.

    So, in many ways, the “right to privacy” is an fraudulent doctrine that is intended to protect the gross expansion of government control in other areas of American life, not, particularly, a blow for freedom.

  17. So you two think that a state may outlaw any form of contraception?

    Yes or no, please.

  18. No, shrike, I’m an anarchist. I’m just calling BS on one of the many schools of constitutional interpretation. If you’re going to interpret a document, the words in the document should be given the meaning ascribed to them when written. This is the essence of originalism. This is how a contract negotiated 20 years would be interpreted in court today. And since the constitution is nothing more than a social contract, it should be interpreted the same way.

  19. I have been thinking about this lately…

    How “living” can a constitution be in the long run?

    If the text never changes the left really will have a hard time straying to far from the actual text. There will always be opportunity to go back to the actual words.

  20. If you’re going to interpret a document, the body of interpretation should have meaning.

    Hey, let’s just shitcan all our laws after every election!

    I can’t wait for the day that all “Libertarians” fell the wrath of free women who all of a sudden become interested in the party because anti-contraception assholes pull back on their rights.

  21. I can’t wait for the day that all “Libertarians” fell the wrath of free women who all of a sudden become interested in the party because anti-contraception assholes pull back on their rights.

    This brings to mind this post I came across this weekend.

    I’m confused. Are we one presidential election away from the Handmaid’s Tale? Or one election away from the wrath of the free women?

  22. So you two think that a state may outlaw any form of contraception?

    Can? Yes. Should? No.

    What’s so special about contraceptives that they can’t be banned, but marijuana and spray paint can be?

  23. So, in many ways, the “right to privacy” is an fraudulent doctrine that is intended to protect the gross expansion of government control in other areas of American life, not, particularly, a blow for freedom.

    QFMFT. The idea that taking a drug to prevent ovulation is a sacred human right of privacy, while taking a drug to get high is subject to permission from Congress, is one of the more impressive feats of mental gymnastics the Court’s left wingers have accomplished. 9.8/10

  24. If you’re going to interpret a document, the body of interpretation should have meaning.

    Only insofar as it can be squared with the word on the page. The “body of interpretation” is a subsidiary text, and should not be substituted for the primary text (as has happened, unfortunately, with Constitutional law).

    If you look at the content of Con Law courses and Con Law decisions in this country, their content runs about 98% case law (subsidiary text) and 2% Constitution (primary text). That ain’t right.

  25. I’m shocked, SHOCKED, to see shrike getting all hysterical while pretending to make a point, all the while saying nothing. Congratulations.

    Roe v. Wade should have been judged on 9th amendment principals. Do you, shrike, have any argument regarding that?

  26. The idea that taking a drug to prevent ovulation is a sacred human right of privacy, while taking a drug to get high is subject to permission from Congress, is one of the more impressive feats of mental gymnastics the Court’s left wingers have accomplished.

    As opposed to a right-wing (authoritarian) who opposes both? I actually wasn’t aware that “leftists” oppose drug decrim laws.

    Wow, I really misread those lefty hippies all these years…..

    This is why the LP is damned to meaninglessness – those of us who seriously endorse personal liberty get attacked by the authoritarian branch of a shitty 1% “party”.

  27. right-wing (authoritarian)

    Getting your talking point’s from “Stalin’s Political Dictionary For Kids, Vol. 1” isn’t a good idea.

  28. *points (sorry)

  29. Roe v. Wade should have been judged on 9th amendment principals. Do you, shrike, have any argument regarding that?

    The right to pick my nose should also be judged on the 9th, don’t you agree?

  30. The right to pick my nose should also be judged on the 9th, don’t you agree?

    Yes I do. I’m not sure where you are going with that, though.

  31. Well, Justice Douglas, in writing for the majority opinion, said “whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

    Therefore, if a woman can scrape a microbe in private (legally), then so can I.

    Am I on Free Republic by any chance? The Freeper stench is nauseating…

  32. If murder is a sign of personal liberty, then you’re next.

  33. If murder is a sign of personal liberty, then you’re next.

    A scrape is a scrape.

    Get over it.

  34. You lost me when you equated contraception with abortion.

  35. As opposed to a right-wing (authoritarian) who opposes both? I actually wasn’t aware that “leftists” oppose drug decrim laws.

    Then you are an idiot. The Democratic Party leadership is full of drug warriors, not to mention your pal John Paul Stevens, one of the most intense defenders of RvW’s “reasoning” on abortion, who also happened to write the court’s opinion in Gonzalez v Raich, upholding federal prohibition of med MJ.

  36. Well, there is a blurry line between contraception and abortion.

    You see, the Pill and Plan B both often act as an abortifacient. This is why some pharmacists will not dispense the Pill.

    Also – that is why Sarah Palin would not pay for rape kits as governor.

    Its a VERY blurry line. The courts have no chance for mediation – its either liberty or as Kohole says – a handmaids duty.

  37. shrike, the Douglas majority opinion in Roe is laughable. Between famously saying there was a right somewhere in the amendments, but he wasn’t sure where, and his citation of ancient Greek Stoic philosophers and 12th-century monks as evidence that life begins at birth, and the neat dividing line at 24 weeks for viability, based on no medical evidence whatsoever… it’s hard to keep a straight face for much more than a few paragraphs.

    I should note I don’t have a dog in the abortion fight, but RvW was a poorly done decision regardless of one’s feelings on the abortion issue.

  38. You see, the Pill and Plan B both often act as an abortifacient.

    Often? Sorry, no. You seem to be accepting way too many pro-life talking points for a good liberal.

    Even if that were so for Plan B, the vast majority of contraceptive use and the vast majority of abortions have absolutely nothing to do with the other.

  39. its either liberty or as Kohole says – a handmaids duty

    Are you honestly equating individual liberty with compulsory sale of a pharm’l?

  40. Well, you fuckers seem to miss that I cite ‘Griswold’ as the basis for privacy rights – although I agree with the ‘Roe’ extension.

    What is your fucking major malfunction anyway? Do you want the fundies to take over?

    Ohhhhhh, I see……. Now its all clear.

  41. Has John McCain weighed in on whether he believes Griswold v. Connecticut, the decision declaring a criminal prohibition of married persons’ use of contraceptives to be unconstitutional, was incorrectly decided? How about Loving v. Virginia (invalidating state statute which criminalized interracial marriage)? How about Brown v. Board of Education (outlawing de jure segregation of public schools)?

    Perhaps it’s time to give John McCain an enema and bury the remains in a cigar box.

  42. OK, I really was going to watch football – but John in Nashville momentarily stopped me.

    You see John, libertarians have no standards – even when it comes to rational self-interest. No one should worry about a third party – we are truly an all around clusterfuck.

  43. Douglas did not write the majority opinion in Roe. Two of you have now stated that he did. Blackmun wrote the majority opinion.

    Isn’t there a contradiction between a liberty-oriented jurisprudence and a neutral interpretation of constitutional principles through whatever constitutional lens you prefer? Isn’t a liberty oriented jurisprudence as results-oriented as the living constitutionalism that most libertarians condemn?

    What did the First Amendment mean at the time of the Bill of Rights? Did it mean “Congress shall pass no law abridging freedom of speech, because abridging the freedom of speech is clearly the province of States?

    What did the Constitution mean before the Bill of Rights? Was there no freedom of speech recognized by the Constitution before then?

  44. shrike must be on the wrong site.

  45. Isn’t a liberty oriented jurisprudence as results-oriented as the living constitutionalism that most libertarians condemn?

    A strict textual reading of the Constitution would go against the libertarian philosophy on some issues, true. But it would be far better than the currently dominant inkblot-test school of Constitutional interpretation, which is very favorable to statists.

    In other words, I’d be willing to give up on drug use being declared a constitutional right if it meant that Congress was actually restricted to the powers listed in Article I, with interstate commerce taken to mean “interstate commerce” rather than “anything”.

  46. You see John, libertarians have no standards – even when it comes to rational self-interest.

    It’s not in our self-interest to warp the constitution to support our pet issues just because we can at the (hypothetical) moment. As conservatives are about to discover (again), what goes around comes around.

    I’d be happy if everyone just played by the rules laid out in the Constitution, even though some of them are disadvantageous to me. Those who want to stack the deck must not be as confident in the validity of their supposed principles.

  47. Anonymous | October 6, 2008, 7:12pm | #
    If murder is a sign of personal liberty, then you’re next.

    Murder is an infringement of civil rights.

  48. In other words, I’d be willing to give up on drug use being declared a constitutional right if it meant that Congress was actually restricted to the powers listed in Article I, with interstate commerce taken to mean “interstate commerce” rather than “anything”.

    What is the practical gain there?

    Seriously, I don’t know but its obvious that you are fishing for something.

  49. I don’t view the Constitution as something to be played with for practical gain or personal enjoyment. That’s where you and I differ.

  50. But you would give up (for all) the right to ingest natural herb for some hazy strict definition of “interstate commerce”.

    You’re lying or you’re a fucking nutcase. Which is it?

  51. Hazy strict is the new jumbo shrimp.

  52. Like military intelligence!

    Or Swiss cheese!

  53. Or fucking virgin!


  54. Sadly, we need a federal law to keep the fundies from outlawing condoms and the Pill – that is why I threw in the “Vatican II” crap – its the hardcore idiots who stand in the way.

    Ive never read The Fundamentals but this weird confluence of fundamentalism and catholicism you are suggesting seems highly unlikely to me. I think you speak from ignorance (I decided to be nice and not just call you a fucking retard).

  55. robc, don’t you see? It’s the fundamentalists like the Pope and Amish that make the world rotten. Gosh, if only we could all live in compulsory communes… maybe it could be implemented in a series of five-year plans, culminating in the ultimate solution to the “fundies”: killing them all.

  56. “…an excuse to prevent AIDS and cancer patients in California from growing an herbal remedy authorized by state law.” I don’t imagine “herbal remedy” refers to marijuana, does it? That would be a coy bit of obscurantism that discredits your argument. Like describing Mumia Abu-Jamal as a “human rights activist”.

  57. Also – that is why Sarah Palin would not pay for rape kits as governor.

    Goodness gracious, can we go one thread without an unfounded smear of Palin?

    (1) It wasn’t an issue at all for her as governor, but I’m willing to write that off as the understandable error of a fevered mind.

    (2) There is not one iota of evidence that Palin ever said or did anything about Wasilla’s pre-existing (and very common) policy of charging insurance companies for sexual assault exams.

    The policy sought to have rape victims’ health insurance companies reimburse the city for the $500 to $1,200 cost of a forensic exam that is conducted after a sexual assault. Presumably, some of the cost might have been passed along to the victim through requirements for deductibles or co-payments, although victim advocates say they don’t know of anyone in the small town who had to pay such a fee.

    There’s no evidence that Palin ever commented on the rape kit policy. Bloggers and other critics contend that she must have known about it because she approved the city budget.

  58. I don’t know what school of Constitutional interpretation I subscribe to….

    I know this thread has veered considerably since Fluffy posted this line, and it is the nitpicker in me… but:

    Fluff, you started your post with that line, then in the subsequent paragraphs you detailed how you are a “textualist”, i.e. the words in the constitution mean what they mean.

    I am completely onboard with the textualist school on constitutional intrepretation, i.e. the words in the constitution and amendments have their plain meaning at the time of their writing.

    I think it is complete folly and dishonesty to pretend to stir through the tea leaves and divine the writer’s “intent” on constitutional matters. This method is what led to the DC ban on handguns, for example.

    The whole notion of “original intent” and “strict constructionism” has effectively destroyed the foundation of law in the US. If I don’t know what the law is because it is subject to the mystical conjurings of people who purport to be able to read the minds of long-dead constitutional authors, how can I possibly follow the law?

  59. shrike seems to be laboring under some impression that all libertarians see the COTUS as a perfect document of liberty. I don’t, and neither do any libertarians I know personally.

    Furthermore most of the self-described libertarians at H&R seem to agree.

    The Constitution is what it is. one of the best foundations for a government ever, IMO.

    I no more want to see it made into a “living document” in the service of some libertarian agenda than I do for a liberal or leftwing agenda.

    In the end one has to face the fact that most things we have to deal with are flawed.

  60. I meant to add a “correct me if I’m wrong” to the second paragraph.

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