Supreme Court

A Leftist Makes the Case for Originalism

What’s worse for the left, a conservative originalist or a conservative living constitutionalist?

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In the April 2019 issue of the Michigan Law Review, Indiana University law professor Ian Samuel, a self-described member of the "political left," assesses the recent book The Justice of Contradictions: Antonin Scalia and the Politics of Disruption. That book's author, another left-wing law professor, Rick Hasen of the University of California, Irvine, argues that originalism, the method of constitutional interpretation favored by the late Justice Scalia, is basically just a sham. According to Hasen, originalism is always principally "driven by ideology" and "results-oriented." The "notion that judges can use originalist methods to 'find' or 'discover' the law, rather than make it," Hasen writes in The Justice of Contradictions, is an "illusion" and should be dismissed as such.

Samuel takes a different view. In fact, he argues, "for a person on the political left, in the contingent historical circumstances" of the present day United States, "it would be disastrous as a practical matter to accept or profess [Hasen's] position." Why? Because, Samuel argues, originalism is "demonstrably capable—at least in some cases!—of getting otherwise conservative judges to vote for outcomes that they may not personally like. Given that the Supreme Court may be in the hands of conservative judges for the next twenty-five years, if you are on the political left (as Hasen is, and as I am), some account of how to restrain those conservative judges is of the highest priority."

There is some practical wisdom in this provocative analysis. Given the choice between a conservative originalist and a conservative living constitutionalist, it seems quite clear that liberals should pick the originalist. Living constitutionalism, as Woodrow Wilson (one of the doctrine's earliest theorists) once explained, holds that if the Constitution cannot "adapt itself to the measure of the times," it "must be thrown off and left behind, as a bygone device." In other words, if the written Constitution imposes an unwelcome limit, a living constitutionalist may feel free to ignore that limit. Would liberals really prefer an openly right-wing version of that on today's Supreme Court?

Here's another way of thinking about this topic: Would liberals prefer a justice in the mold of Samuel Alito or a justice in the mold of Neil Gorsuch?

Among the Supreme Court's current Republican appointees, Alito is arguably the least originalist—or perhaps it would be more accurate to say that he is the most skeptical of originalism. For example, during the November 2010 oral arguments in Schwarzenegger v. Entertainment Merchants Association, which dealt with California's restrictions on the sale of violent video games to minors, Alito mocked Scalia's originalist-minded questioning of the state's supervising deputy attorney general. "I think what Justice Scalia wants to know is what James Madison thought about video games," Alito sneered. "Did he enjoy them?"

"No," Scalia shot back, the annoyance evident in his voice. "I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there—there was an exception to it for—for speech regarding violence?"

In contrast to Alito, Neil Gorsuch has emerged as one of the Court's biggest advocates of originalism since he joined the bench two years ago. And that commitment to originalism has led Gorsuch to clash repeatedly with Alito in Fourth Amendment cases. For instance, during the November 2017 oral arguments in Carpenter v. United States, which dealt with the warrantless government acquisition of cell phone records, Gorsuch, as I noted at the time, "proffered a property rights argument that might allow Carpenter to win the case, and Alito came out swinging hard against it." Several months later, that dynamic repeated itself during the oral arguments in Byrd v. United States, with Gorsuch and Alito butting heads over privacy, property, and the right to be free from unreasonable searches and seizures.

In short, if you are a member of the political left, and you are trying to take the measure of originalism, you might want to ask yourself this question: Would you rather see Alito or Gorsuch write the majority opinion in a Fourth Amendment case?

NEXT: Government Control Turns Schools into Partisan Battlegrounds

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  1. Would Prof. Samuel want *leftist* justices to use originalism and formalism, or just the conservative judges? If the latter, it sounds like a case of “making the enemy play by his own book of rules.”

    1. Ha ha ha.

      No.

      Believing in the rule of law at all is for the dopes on the Right. The Left believes in nothing but Power.

      Of course the Left doesn’t want the Right to similarly play “I’ll make it up so my side wins” constitutionalism. The Left is constrained by nothing, while the Right idiotically continues to grant the benefit of law to those who don’t reciprocate. That’s why the Left relentlessly wins.

      The fundamental moral mistake of the Right, for a century, is mistaking complicity in one way rule of law as supporting the rule of law, instead of betraying it.

      Reciprocity is a fundamental principle of Western Civilization underlying all others.

      One way ceasefire is surrender
      One way rule of law is subjection
      One way civility is subservience

      The Left defects on all the cease fires that make western civilization possible: violence, censorship, judicial authoritarianism, economic in group preference, social in group preference.

      To grant the benefits of those principles without reciprocity is to betray those principles, not uphold them.

      Rewarding Evil with the fruits of Good betrays the Good.

      The Right’s Options:
      1) fight back in kind
      2) take it and like it
      3) cuck and whine about it

  2. Would you rather see Alito or Gorsuch write the majority opinion in a Fourth Amendment case?

    Gorsuch. That was easy. Now would you rather see nude, Alito or Gorsuch?

    1. Who would like to see Ginsberg naked?

      1. No no no, I will not click on that.

    2. But really, you’d have to go to Moldova to find a really hot judge:

      https://www.dailymail.co.uk/news/article-3303623/This-Moldovan-judge-nicknamed-sexiest-magistrate-world-posting-controversial-photos-Facebook-profile.html

      More recent news items (via Google Translate) seem to indicate that she’s been charged with bribery or some such.

      1. Yes yes yes. I would click on that.

        1. I did click on that, sans regrets.

      2. Does she take applications for clerks?

        1. Can’t say I blame you. I worked for a psychologist a few decades ago, and she has bar none the best looking pair of legs I’ve ever seen. A genuine steel magnolia. She was fond of those wrap skirts that were popular in the 80s, and liked showing them off. I never failed to appreciate.

          1. If you have to go to work, you might as well have a good reason for showing up.

      3. someone knows where she keeps the gavel.

  3. You act like the left has any principles at all, beyond the “I win” rules. If the last 10 years have taught me anything it that in politics noone has any real principles at all they have principals. This type of post might as well be shouted at the clouds. Same with all the “the right is being hypocritical” posts.

    1. That’s what “living Constitutionalism” openly is. You can argue all day long about whether professed originalists actually adhere to their stated principles (spoiler: they often don’t) but originalism as a theory at least attempts to be rooted in something more objective than the judge’s preferred policy outcome.

    2. Idle Hands
      May.6.2019 at 1:28 pm
      “You act like the left has any principles at all, beyond the “I win” rules….”

      I see you’ve read some of Tony’s posts.

    3. Same with the cries of “Double Standard”. There is no double standard, there is only one standard “We’re right, you suck, so live with it”.

  4. “First Amendment was adopted, that there—there was an exception to it for—for speech regarding violence”
    Well, the challenge to a duel was allowed, and that is pretty violent.
    “Give me liberty of give me death” has a violent tinge to it.

  5. According to Hasen, originalism is always principally “driven by ideology” and “results-oriented.”

    So I haven’t read the book. Nor the entirety of the review. But the review does not support that statement above. From the review…

    [Hasan] says this indeterminate flexibility is a feature of all judicial philosophies.

    In other words, it is judges and not Originalism that are always principally “driven by ideology”.

    That’s a pretty important distinction, Damon. Samuel’s main point is that Originalism at least offers a framework. How strictly one adheres to that framework is all over the map. But it’s better to have a framework instead of what the Left offers, which is effectively just an ability to work backwards from preferred outcomes.

    1. “Living Constitution” is just a polite way of saying the law is whatever the hell the judges think it is. It is a tribute to how cynical and deparaved liberals are that it took conservatives taking over the court for that fact to occur to any of them. If the constitution can “evolve” to give gays the right to government marriage even though homosexuality was a crime at the time of the drafting, then it can “evolve” pretty much anyway the Justices want to make it evolve.

      1. What liberals like Root are afraid of is the great jurists like Clarence Thomas and Neil Gorsuch will attract enough support to finally place some limit, any limit, on what the government can do. It is incontrovertible that the founders intended a federal government of limit and specifically defined powers. Article 1, Section 8 lists those powers. They don’t include anything about health care, or education, or retirement. The liberals are afraid that someday some good judges will put the genie back in its bottle.

  6. According to Hasen, originalism is always principally “driven by ideology” and “results-oriented.” The “notion that judges can use originalist methods to ‘find’ or ‘discover’ the law, rather than make it,” Hasen writes in The Justice of Contradictions, is an “illusion” and should be dismissed as such.

    The fact that he could write those words and be completely cognitively disconnected from the late 20th century history of Supreme Court decisions.

    1. Hansen is a political hack who cannot conceive of any judge being any different. Hansen not only is unable to separate the law from his politics, he is unable to see how anyone could be any different. It is evidence of a very stunted moral and intellectual character.

      1. I pretty much grew up listening to NPR. There’s no other group who digs “discovering law in the constitution” more the left.

        Even many pro-abortion legal analysts admit sheepishly that Roe v Wade was an unprecedented act of legal contortion.

        1. Leftists are philosophically Marxists in that they are crude materialists. They don’t recognize abstract principles as anything other than rationalizations to ensure whatever results they desire in the crude material world. So, a classical liberal can see “equality” as a abstract concept of equality under the law or of opportunity that is entirely seperate from equality in the material world. A leftist, being a crude materialist can’t do that. To him, if it doesn’t result in material equality, it isn’t “equality”. When you understand that, it is no surprise that they can’t understand how the law could exist spearate from political ends.

        2. Roe v Wade would be on much more solid ground if their reasoning read in total:

          9th Amendment! Next Case!.

      2. He is now. Even a few years ago he wasn’t this bad. Trump being elected seems to have broken him.

        1. Which is a far too common occurrence.

      3. Hansen not only is unable to separate the law from his politics…

        This is quite common actually. If you haven’t read “The Myth of the Rule of Law” then I’d suggest reading it.

      4. “Hansen is a political hack who cannot conceive of any judge being any different. ”

        Everyone projects.

        The Left projects that the Right is as totalitarian as they are.
        The Right projects that the Left actually gives a damn about the rule of law.

        Both are projecting.
        Both are very wrong.

  7. “Given that the Supreme Court may be in the hands of conservative judges for the next twenty-five years, if you are on the political left (as Hasen is, and as I am), some account of how to restrain those conservative judges is of the highest priority.”

    Ok, as long as there is a majority of judges on my team anything that gets the outcome I want is kosher; but you a quorum of conservative judges can go tit for tat? Now hold on just a minute!

    I suppose being progressive means you have to believe your ideology is “progressing” onward into the future and, given it’s moral superiority, that which you enable to government to do to others can just never be done to you.

    1. I suppose being progressive means you have to believe your ideology is “progressing” onward into the future and, given it’s moral superiority, that which you enable to government to do to others can just never be done to you.

      Yes, and it cuts both ways. Which is why both sides should be pushing originalism, and we the people should be demanding it. If either side can read whatever they want into the document, then it means nothing. Without originalism the “law” of the land will change every time the balance of the court shifts, no matter which direction it shifts.

      1. Provide examples of this cutting “both”, or the opposite, ways

        1. The article provides an example. Alito on the 4th amendment. The conservative wing has continued to refuse to hear FISA cases for one reason or another.

          Who can forget Roberts reading a power of Congress to penalize… er… tax you for not buying health insurance.

      2. The entire problem stems from the fact that the USSC has been reading the Constitution backwards for a century. There is NO SUCH THING AS “CONSTITUTIONAL” RIGHTS! That phrase implies that they are rights which we get from the document. They are not. As stated in the Declaration of Independence, those rights were endowed upon us by our Creator, whatever that term may mean to each individual person. It means that the rights existed prior to the drafting of the Constitution. The rights were not created by the Constitution.

        The Constitution is not about individual rights. It is about government powers. It is how the government is constituted. Even the so called Bill of Rights is not phrased in such a way to grant a freedom. They are almost all phrased as a limitation on government power. The 1st Amendment doesn’t say “Americans have freedom of speech, religion and assembly.” It says that Congress cannot infringe on those rights. The 2nd Amendment doesn’t say “Americans have the right to bear arms.” It says that right shall not be abridged. It is a limit on what the government can do, not a granting of a right. the 4th Amendment doesn’t say “Americans have a right to privacy. It says that right “shall not be violated”. Again, a prohibition on government power, not a granting of a right.

        Government has completely slipped its Constitutional bonds. It needs someone, or maybe 5 someones, to restrain it again.

        For any case that comes before the court, the first question we should ask is “Does the Constitution grant the government the power to do what it wants?” Instead, since around the New Deal it has been assumed that the government could do what it wanted, and would only be limited if the freedom government wanted to trample upon was sufficiently recognized.

        The Court has gone from recognizing a specifically defined set of powers to “anything that even remotely affects interstate commerce can be regulated or banned.” Liberals are afraid of judges like Clarence Thomas because he recognizes that there are limits to government power, and he’s the only one (possibly Gorsuch) with the balls to say so.

  8. Government shouldn’t do stuff.

    1. this ^

    2. “muh anarchy”

  9. Wtf I hate originalism now

  10. Everyone’s going for the outcomes they want, and the imprimatur of long-dead men who, I hasted to add, wore fucking powdered wigs, is something people employ usually when they’re being dishonest.

    1. Dishonest isn’t the best word. It’s more that we don’t want to admit that when push comes to shove, humans do horrible things to get their way if they believe it’s just that important.

    2. trying to divine “original intent” or assigning quasi-divinity to the original writers is sort of stupid, i agree. but not taking the literal text literally just opens the door to tyranny by giving politicians cover to ignore the plainly written law of the land. if they can safely ignore that, they can safely ignore anything.

    3. Being “long-dead” is a condition which awaits…everyone.

      Some people leave something behind which lasts longer than they did. Like a frame of government for their country. A frame of government which is subject to amendment.

      It was hardly smooth sailing, to put it mildly, but we still have the original document plus amendments on many important issues, and some smaller tweaks as well.

      If the amendment process has fallen into disuse, it’s not because the process is impractical (what with the powdered wigs and all), but because not all the favorite schemes of those Rev. K calls our “betters” would be accepted by the people via the amendment process, so that our betters are simply obliged to “change” the constitution in the guise of interpretation.

  11. The ridiculous part here is that originalism shouldn’t be partisan, but we’re partisan to the point that we’ve weaponized the Constitution to accomplish policy goals that Ian Samuel ironically accuses Scalia of, once again proving that mental illness and the law do not mix.

    1. Originalism shouldn’t be partisan, but since the left gave up on originalism some time during FDR’s first term, it is, and has been for the entire lives of all but a few ancients.

      The Constitution got in their way. It’s still in their way. Barring some massive and massively unlikely amendments, that isn’t going to change.

      So the left are never going to embrace originalism.

  12. What’s worse for the left?
    Exposing their closet fascist tendencies.

  13. I support the “read the damn text” school of Constitutional law.
    And the “can you read English” test for nominating Justices.

  14. The Left’s Golden Rule “Do unto others, do it first and do it so hard that those done to will never get up from the floor.”

  15. Yes!

  16. Interesting that there is a consensus that rule of law is simply not to be had with the Left.

    So what now?

  17. There is no, and can never be, any such thing as a Left Libertarian. Leftism DEMANDS the existance of a non-consentual power structure designed specifically to violate property rights. That is leftism’s highest moral good, and primary first principle. Leftism must be authoritarian. It can not be anything else. Libertarianism must stand in opposition to all forms of leftism.

    Right wing thought is equally predicated on one axiomatic principle; the advocation of the property rights of every living human. Therefore Libertarianism is and can only be an ideology of the right. We can disagree later on whether right wing authoritarianism can exist, (or whether all authoritarians so classified as right wing aren’t really just leftists by other means,) however, I must take this chance to say that Reason magazine is not a libertarian publication any more.

  18. Curse you all for not having an edit button, too.

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