Supreme Court

Progressives vs. "Progressive Originalism"

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The Constitutional Accountability Center (CAC) is a liberal think tank and law firm "dedicated to fulfilling the progressive promise of our Constitution's text and history." That might sound like a recipe for predictable left-wing politics, but in fact CAC surprised many observers by supporting libertarian attorney Alan Gura in his two successful Supreme Court challenges on behalf of the Second Amendment. In the most recent of those cases, last year's McDonald v. Chicago, the CAC assembled an all-star group of liberal, conservative, and libertarian legal scholars who submitted a friend of the court brief championing Gura's argument that the Privileges or Immunities Clause of the 14th Amendment requires Chicago (and all other local and state governments) to respect the Second Amendment. Contrast that with Chicago's repeated assertions that it could ignore the Second Amendment entirely in the name of gun control. So the CAC has clearly proven itself a principled liberal organization willing to cross partisan lines.

Unfortunately, not everyone on the left appreciates such consistency. Over at his superb legal affairs blog, the Harlan Institute's Josh Blackman highlights a major new article from NAACP Legal Defense Fund attorney Dale Ho that warns the left against adopting CAC-style "progressive originalism." Here's a snippet from Ho's article "Dodging a Bullet":

Although progressive originalists have made valuable contributions to constitutional discourse, McDonald illustrates that a conscious decision by progressives to adopt the language of originalism wholesale is unlikely to be a winning strategy in the long-term. More than any other area of constitutional law, the Court's Fourteenth Amendment jurisprudence demonstrates the tremendous value of modes of interpretation other than originalism. Progressives should not shy away from a tradition of constitutional interpretation that has produced the finest moments in the Court's history.

What's Ho so afraid of? Judicial protection of economic liberty, for one thing:

An originalist understanding of the Privileges or Immunities Clause could raise the specter of Lochner, by providing conservatives with a new weapon to strike down economic regulations as an infringement upon freedom of contract.

It certainly could. More importantly, it should—at least if we care about following the text and history of the Constitution. Sadly, Ho's results-oriented approach has some very powerful allies on the bench, including "faint-hearted" originalist Justice Antonin Scalia. As I explain in "Conservatives v. Libertarians," Scalia has long rejected the idea that the 14th Amendment protects economic rights. Speaking at a Cato Institute conference on this very topic in 1984, for example, Scalia told the audience, "in my view the position the Supreme Court has arrived at is good, or at least the suggestion that it change its position is even worse." That view reappeared during oral arguments in the McDonald case, where Scalia openly mocked Alan Gura for seeking to revive the Privileges or Immunities Clause. "What you argue is the darling of the professioriate, for sure," Scalia quipped.

To put all of that in a different, more depressing way, consider this: Justice Antonin Scalia and an attorney from the NAACP Legal Defense Fund—two very powerful forces in American law—are in perfect agreement that we should ignore the Privileges or Immunities Clause entirely lest the courts end up protecting economic liberty.

Update: An earlier version of this post mistakenly implied that Dale Ho's article represents the official view of the NAACP Legal Defense Fund. The article represents only his views.

NEXT: The Sorry State of Our Union

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  1. great post! very good knowledge here!

  2. Sorry Damon. You were nominated for the RandyAyndy Awards but only received honorable mention. Think of yourself as Miss Congeniality

    1. “SEXIST PIG CATEGORY AKA I’M A LIBERTARIAN”

      Very unkind Rather.

        1. Rather|1.26.11 @ 11:16AM|#
          I HATE YOU ALL! I’M NEVER POSTING HERE AGAIN!

          1. sloopyinca, you obviously need a quick primer on H&R posts and life:

            Size matters
            Epi is a pig
            I will never fuck Helle
            That ain’t me posting

    2. Hey rectal, if the recipients of your award don’t even know your blog exists and will never visit it, do they still get the award? Or do you give it as a consolation prize to your three readers?

      1. Shh, he’s generating hits.

        1. I’d hit it… ooo I did.

      2. Epi, I get at least fifty hits overnight, and another 100+ during the day. Are you letting me use your pic or not? BTW, every time I open the file to preview your photo I hear Tubular Bells; is that normal?

        1. Damn that’s alot of cocaine. But what about Epi’s question?

          1. Speaking of Epi .

            Oh, and can I use your facebook pic Helle?

  3. Progressives should not shy away from a tradition of constitutional interpretation that has produced the finest moments in the Court’s history.

    At least they admit it now.

    1. Shorter Dale Ho: “The ends justify the means.”

  4. “An originalist understanding of the ‘Privileges or Immunities Clause’ could raise the specter of Lochner, by providing conservatives with a new weapon to strike down economic regulations as an infringement upon freedom of contract.

    Never mind that regulations ARE inherently infringements upon the freedom of contract.

    1. “Freedom of contract” appears in the Constitution right beside “right to privacy.”

      1. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

        1. In fairness, that’s a restraint on the states, not the fedgov.

          The fedgov is restrained from infringing on freedom of contract by the Tenth Amendment: the power to micromanage the economy is not among those delegated to Congress in Article I. Congress is delegated a narrow power to regulate (i.e. make regular) interstate commerce, as by removing barriers to trade imposed by state governments, but that’s it.

          1. So Congress only has the power to ease constipation in interstate commerce?

            According to today’s law–regardless of what you think the constitution is supposed to say–the federal government has broad powers to manage commerce in its own jurisdiction, i.e., the interstate and international realms. It’s probably true that this power has expanded with time, but that has a lot to do with the fact that commerce is increasingly interstate and international.

    2. Never mind that regulations ARE inherently infringements upon the freedom of contract.

      If true, then regulations would be unconstitutional, along with laws banning polygamy or same-sex “marriage”.

      1. As long as you don’t get a marriage license it’s not recognized as polygamy.

        1. As long as you don’t get a marriage license it’s not recognized as polygamy.

          Look up bigamous cohabitation.

  5. Sadly, Ho’s results-oriented approach has some very powerful allies on the bench[…]

    Aaaaaa!!! You… you… you mean… *Gasp* He’s an utilitarian?

    [Like the Spanish say:] I shit on the cross!

    But I thought Reason was partial towards the utilitarian ethic…

    1. Results-oriented doesn’t equate to utilitarian Lord Doofus. Deontologists don’t like results either, they just stop the analysis at the immediate result.

    2. Utilitarianism is a means of judging the ethicality of actions, but focused more on a sort of calculus (although applied to a fairly subjective set of facts) rather than a fixed set of yes/no rules. Deontologists use a flowchart, utilitarians use a spreadsheet.

      “Results-oriented” jurisprudence suggests that, rather than examine the law to try to understand what it says about an issue, the judge simply chooses what he wishes the law said based on ideological preference, then attempts to concoct a rationale to make that decision seem like it is technically a legitimate interpretation of the law (although perhaps only by some gross contortions of language and the implication of unwritten qualifications to the law).

      They aren’t remotely related concepts.

  6. Fuck Scalia with red-hot modes of interpretation.

  7. “More than any other area of constitutional law, the Court’s Fourteenth Amendment jurisprudence demonstrates the tremendous value of modes of interpretation other than originalism.”

    Yeah, no shit, Sherlock. There’s always ‘value’ for someone for interpreting a text in a way the someone wants, instead of reading what it says. If only *I* could get away with shit like that when dealing with contracts, by “interpreting” them in a way that suits me.

  8. Scalia is bad, but I’m pretty sure that whomever Obama would nominate would be worse. If waterboarding a few dozen people–including me–got Wickard v. Filburn overturned, I’d probably take it as a net plus.

    1. I’m compelled to agree with this. It doesn’t advance the discussion much to identify the lesser of two enormous evils, but Joe’s comment remains worthy, and correct.

  9. It seems natural to me that conservatives would prefer the original expectations or understanding of how provisions would be applied, especially as evidenced by practices contemporaneous with the provisions. That’s what conservatism is all about, conserving extant understandings and practices. Likewise I would think liberals are always going to be a bit uneasy with that as it seems to much like letting the “dead hand of the past” rule us.

    1. It seems natural to me that conservatives would prefer the original expectations or understanding of how provisions would be applied, especially as evidenced by practices contemporaneous with the provisions. That’s what conservatism is all about, conserving extant understandings and practices. Likewise I would think liberals are always going to be a bit uneasy with that as it seems to much like letting the “dead hand of the past” rule us.

      Fortunately, we have an Article V process to escape the grip of the “dead hand of the past”.

      1. Seeing as how the writers of the Constitution seemed aware they were writing down general principles that would be applied to future situations one might imagine they didn’t want those principles to only be applied in the ways they expected they would be.

        1. Writing that “Congress shall not…” is what you call “writing down general principles”? An injunction is not the same as advise.

          1. Yes, when what Congress shall not do are things like engage in “unreasonable searches,” “excessive fines” and “cruel and unusual punishment” then yes, we are talking about general principles (reasonability, excessiveness, cruelty, etc).

            1. I don’t think that the terms that are inherently subjective are at issue, so much as terms where the semantics fundamentally changed — such the militia changing from something approximating “all able-bodied males of military age” to “crazy fuckers that live in the woods and plot against government”, or press changing from “cutting edge mass-media technology and the associated physical machinery” to “J-school graduates”.

              The former case (crazy fuckers in the woods being necessary to the security of a free State?) causes the text makes no sense. The latter case threatens to deprive the masses of a right and leave it the hands of a government-selected propagandist caste.

              Ultimately, we should consider the original semantics of law, because the law was intended to serve a specific protective purpose, and we risk undermining the protection by fundamentally changing the meaning of the law. When a law is written with terms that, even at the time, would be subject to the interpretation of a judge, that is less of an issue.

              1. Ultimately, we should consider the original semantics of law, because the law was intended to serve a specific protective purpose, and we risk undermining the protection by fundamentally changing the meaning of the law. When a law is written with terms that, even at the time, would be subject to the interpretation of a judge, that is less of an issue.

                Look up the phrase “evolving standards of decency” in regards to the Eighth Amendment.

    2. Liberals would be all for original meaning if it fit their ideology. Just read the dissent in Heller.

      Likewise, conservatives are willing to ignore textualism when it doesn’t fit their ideology. Check out 11th Amendment jurisprudence.

      Libertarians are better than both, but far from perfect.

      But it’s nice to see liberals admitting that they don’t care about the Constitution. Honesty is refreshing.

      1. It is a 32 year old dime store novel written in a marginal sanskrit dialect …it is unpossible for anyone to understand it today.

      2. Only if you conclude that “the Constitution”=how the ratifiers expected it would be applied can you conclude that. The liberal described below likely feels they are being true to the pinciples laid down in the Constitution, that limiting oneself to the original expectations of the ratifiers is not being true to a document that was meant to be about broad principles applied by future generations to meet their situations which the ratifiers could not have foreseen.

        Take as an example the 14th equal protection clause. The ratifiers likely never imagined there would come a day when whites would be discriminated against in favor of blacks. But what they wrote down was something about equal protection and that applies to this new situation.

        As someone pointed out here one day the same Congress that passed the 14th had racially segregated seating…

        1. I’m pleased you agree that the Second Amendment protects individuals’ right to keep and bear state-of-the-art infantry weapons. Can I anticipate your support for prosecuting public officials who support gun control measures under 18 U.S.C. ? 242, for depriving individuals of their civil rights under color of law?

        2. Your stupidity continues…

          Of course the 14th amendment doesn’t allow for discrimination against whites in favor of blacks. It’s liberal judges with their ideas of proper relief for past discrimination that gave us that nonsense.

          1. Wow, for someone who calls me stupid it’s interesting that you missed that my position is that the 14th should apply to protecting whites.

        3. Only if you conclude that “the Constitution”=how the ratifiers expected it would be applied can you conclude that. The liberal described below likely feels they are being true to the pinciples laid down in the Constitution, that limiting oneself to the original expectations of the ratifiers is not being true to a document that was meant to be about broad principles applied by future generations to meet their situations which the ratifiers could not have foreseen.

          Here is what the Supreme Court wrote about the subject in Ex Parte Bain

          It is never to be forgotten that in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.

          121 U.S. 1 at 12

          See also Reynolds v. United States “[i]t is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature [marriage] of social life. ” 98 U.S. 145 at 165

  10. I spent a regrettable 30 years as a far-left liberal Democrat, but never saw the sense in gun control, even then, and even though anti-gun ideology is/was clearly “bundled” into the liberal mindset. So I’m amused to see the CAC takes a similar view. Maybe in 30 years, the CAC will evolve as I did.

  11. Seeing as how the writers of the Constitution seemed aware they were writing down general principles that would be applied to future situations one might imagine they didn’t want those principles to only be applied in the ways they expected they would be.

    Since when do people writing down prescriptions and limitations not want them applied as they expect?

    Do you seriously think the Founders wrote the Constitution hoping it would be applied contrary to their expectations?

    1. i wonder if we should apply that to laws in general? Clearly the writers of the healthcare bill didnt expect us to impliment it the way the text says.

  12. Originalism is everyone’s preferred theory of Constitutional interpretation. Everyone, from all points on the ideological spectrum. No exceptions.

    Everyone always goes to the text of the Constitution first. If the text clearly permits what you like, or clearly prohibits what you don’t, everyone’s analysis ends there. It’s only when the Constitution doesn’t give us the answer that we want that we begin to come up with reasons for ignoring the text or giving it broader application than was intended. But no one, upon seeing a Constitutional provision that he likes, ever says “wait, wait, that was all well and good for 1789, but we can’t apply that to 2011.”

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