Supreme Imbalance: Why Originalism and Conservative Activism Are Wrong

In earlier posts in this "Supreme Imbalance" series, I identified four approaches to constitutional interpretation - judicial passivism, originalism, conservative activism, and liberalism. In my last post, I considered and rejected one of those approaches - judicial passivism. In this post, I will evaluate (and reject) originalism and conservative activism.

"Originalism" purports to respect the intent of the Framers. But it has gained no credibility over the past quarter-century, despite the earnest efforts of its proponents, in part because it does precisely the opposite. The central premise of originalism is that courts should hold nothing unconstitutional that the Framers themselves did not intend to hold unconstitutional. But this conception of constitutional law fundamentally misreads the intent of the Framers. It assumes that the Framers intended to limit the effect of the Constitution to only those outcomes that they themselves consciously expected and intended.

But in drafting the Constitution, the Framers were not enacting a series of specific and predetermined rules. "Congress shall make no law" prohibiting the "free exercise" of religion or abridging "the freedom of speech," No person shall "be deprived of life, liberty, or property, without due process of law," and no person shall be subjected to "cruel and unusual punishment" were not designed as crabbed, narrow ordinances like speed limits. Rather, they were intended to serve as open-ended aspirations that would gain meaning and vitality over time.

As men of the Enlightenment, the Framers conceived of rights as inherent in nature and "founded on the immutable maxims of reason and justice." They understood them much as they understood the laws of science. That is, just as they knew that they did not know all there was to know about biology and physics, so too did they know that they did not know all there was to know about their rights. Just as reason, observation and experience would enable man to gain more insight into philosophy, science, and human nature, so too would they enable him to learn more over time about man's "inalienable rights," which would have to be distilled from experience, reason and justice.

With this mindset, the notion that any particular moment's conception of rights should be taken as exhaustive would have seemed patently wrong-headed to the Framers, just as it would have seemed wrong-headed to them for anyone to assume that their knowledge of the human body or of the universe should be taken as final and conclusive. Such a conception was antithetical to the very core of Enlightenment thought and to everything the Framers stood for.

They were not timid men. They were bold. As the Harvard historian Bernard Bailyn has observed, they knew full well that the rights they had identified did not "exhaust the great treasury of human rights." They knew that their understanding of these freedoms "marked out the minimum not the maximum boundaries" of man's inalienable rights.

The "preservation of liberty," they knew, "would continue to be what it had been in the past, a bitter struggle with adversity," which would demand constant vigilance both to protect the rights they had recognized and to be alert to the recognition of new rights yet to be discovered.

The narrow, frightened originalism of Clarence Thomas and Antonin Scalia would have seemed absurd to the Framers. As a constitutional methodology, it not only invites the manipulative and result-oriented use of history, but it also and more fundamentally denies the true original understanding of the Framers of our Constitution.

This brings me to third conservative methodology -- "conservative activism," which sounds like an oxymoron, as it should. But it is in fact the dominant form of jurisprudence on the Supreme Court today. It is conservative activism that explains the Court's decisions invalidating regulations of commercial advertising, invalidating campaign finance regulations, invalidating affirmative action programs, invalidating the use of race to promote integration, invalidating zoning laws, invalidating laws prohibiting the Boy Scouts from discriminating against gays and lesbians, and invalidating federal laws dealing with the environment, handguns, domestic violence, and age discrimination.

Conservative activism offers the worst of both worlds. It undermines the decisions of democratic majorities, not in order to protect the rights of minorities, or the powerless, or the oppressed, or the disenfranchised, or the dispossessed, or the poor, or the downtrodden, or the accused, but in order to protect the interests of corporations, the wealthy, the privileged, the majority, and the powerful. Like the Lochner era of which it is the constitutional and moral descendent, modern-day conservative judicial activism is a perversion of the values that the Constitution was designed to protect and, more specifically, of the values the Framers relied upon the Court to protect.

This is the fifth in a series of six posts on the make-up and direction of the Supreme Court.

Comments

[DMeadows]

"the Second Amendment only specifically mentions "a well regulated militia".

The Second Amendment affirms an individual right, no differently than any of the other amendments in the BOR which have been interpreted as affirming individual rights.

"Militia" is a broad term which includes individuals not organized whatsoever. US Code includes in a militia "all able-bodied males . . ." and there are "organized" and "unorganized" individuals, the unorganized individuals being simply defined as "members of the militia who are not members of the National Guard or the Naval Militia".
--10 USC Sec. 311
http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t09t12+170+37++%28militia%29%20%20%20%20%20%20%20%20%20%20

"Regulated" means "governed by laws". "Well-regulated" means "governed well by laws". Since a militia does have unorganized individuals, a "well-regulated militia" includes unorganized individuals with firearms who are governed well by laws. We have a lot of laws governing individuals' military service (e.g., selective service, individual ready reserve for veterans fresh out of the service, and other provisions of law with respect to military mobilization of individual civilians) and individuals' purchase, possession, carry, and use of firearms. Clearly, unorganized individuals with firearms are well-regulated.

In order to have well-regulated unorganized individuals at the ready for the nation to draw upon for defense, in addition to whatever number of organized citizens are on hand, the right of individuals, organized or unorganized, to keep and bear arms shall not be infringed. That is what the Second Amendment is saying. It affirms an individual right to arms, couched in reasoning based on the common good for having individuals exercise that right.

[tabonsell]

The writer is right on about "originalism" as a legal philosophy even though he is short on specifics.

To see how bankrupt that philosophy is see:

http://www.opednews.com/articles/opedne_thomas_b_070605_protecting_our_const.htm protecting_our_const.htm

On OpEdNews.com.

Incidentally, the Founders never outlawed "cruel and unusual punishment." They wrote "cruel and unusual punishments." That is a plural, meaning "cruel" punishment is taboo, as is "unusual" punishment. Nearly all Americans use the 8th Amendment prohibition as if it reads "cruel-and-unusual punishment." It doesn't; "cruel" and "unusual" are two separate things.

[Sundialsvc4]

While I am enjoying your obviously very scholarly take on the Supreme Court, I obligingly take the view that, like many judicial scholars, you see the Supreme Court, and the Honoable Court in general, as "Supreme." Certainly, when the Supreme Court appointed its own non-constitutional power .. the power to declare that things are "unconstitutional" and therefore "null and void just because we say so" .. it acted very "Supreme."

But our system of Government is expressly designed so that no single part of it is "Supreme." Everything is shoved back to the hands of the six-hundred-odd people who constitute the Congress, and actually, most things are shoved back even further to the few-thousand people who make up the State Legislatures.

It is, in other words, a highly decentralized system.

In the past few years, we have seen a de-facto concentration of power "at the top," culminating most recently with the President's bold assertion that (also with no mention of such a thing in the Constitution), he has the power to declare whatever-he-pleases to be "un-Presidential," and that by signing a law he may reinterpret it. He's definitely getting push-back on that idea, as well he should, but it isn't a great progression forward in the "error of our ways" that we have already committed.

Our Country was not designed to be ruled by One, nor by an Executive Council. That much is abundantly clear.

There's a good reason for that, and we're seeing that reason being played-out before our eyes.

[Stoyver]

So judicial activism decried by conservatives as unamerican and unconstitutional, is precisely what conservatives (reactionaries) are up to! Excellent Post!

[ImmanuelGoldstein]

'Originalism' was like 'family values', nothing more than a focus group tested catch phrase used to bash liberals.
These conservative 'originalists' have no problem signing onto highly exotic and unamerican notions like the 'unitary executive', a concept that the original framers were virtually apoplectic about avoiding.

[Purple Girl]

It is apparent (and has been for the last several years) that we have lost all Three branches of gov't. The last 35 yrs have been a downward slide- which interestingly coincides with Cheney,Rumsfeld.... rise in Politics(literal fall out from Nixon- they're toxic).
Reagan was a puppet. Having worked in Long Term Care - you could see the Dementia setting in when he took office (Alheimers is a very slow process- people can suffer for 20-30 yrs before they die from the 2nd causes (pnumonia, aspiration.. the heart and lungs are not normally effected)
Cheny & fiends have been playing this hand out for years. they have gotten everything just right - Except US !! Some of us still see patterns and conncetions and remember yesterdays news.
We have been invaded from the inside. The only way WE could be. AQ gave US a shiner, Bushco put US in Intensive Care.Heres an Adrenaline shot to our heart....
Write the UN ask them to levy War Crimes charges against Bush,Cheney & the 'Architects"
(political leaders and CEO's).
Ask them also to send an envoy to monitor and verify our Election results in '08.
Now Senetors and Congresssman- What laws did you pass in the last 30 years that need to be revoked, Is Impeachment back on the Table, What were your transgressions? What will you do now- be the Public Servant you were hired to be- Or also be wearing an orange suit & shackles? will you revoke at least laws passed in the last 7 yrs, will you rescind all appointments made during this treasonous reign- including to SC?
Frankly my hope is that No Incumbent returns to their seats in '09 (well... might have to bend on a few- Feingold, Kucinich...

[darker]

Republican-controlled Supreme court is the enabler of the rape of middle America by ultra-rich corporations.

VOTE as if your life depends on it.
Because IT DOES.

Republican = thieves, liars, robbers of middle America's life and future.

Republican = NANNY STATE FOR THE ULTRA-RICH on the backs of the un-rich. For-profit invasions, wars, disaster profiteers, Big Oil, "unaccountable" corporations are running away with YOUR HARD-EARNED TAX DOLLARS.

CORPORATE WELFARE QUEENS don't want you to have Health Insurance. They want you to be VULNERABLE and powerless and weak so they can screw you over some more.

VOTE AGAINST THEM.
Reply

[CSDofNM]

Is is also axiomatic that anyone who claims to be a "strict constructionist" (claiming that nothing exists beyond the four corners of the original document) is admitting that they cannot read: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

[PJQ49]

Not a good post. Why quote a liberal historian (Bailyn) repeatedly and not quote, say, Madison to support claims about the Framers' intentions? Was Bailyn on the desk and The Federalist Papers all the way across the room in a bookcase?

By the way, as a political scientist, I can report that, contrary to the bio posted here, the Kammerer Award is not the American Political Science Association's award for "the Best Book of the Year in Political Science."

[Nezua]

what do we do when the supreme court appointment is a lifetime one, but the court loses sight of its purpose and therefore is not only ineffective, but harmful to the welfare of The People? hell. they gave us dubya, if nothing else.

[Poboy]

"Like the Lochner era of which it is the constitutional and moral descendent, modern-day conservative judicial activism is a perversion of the values that the Constitution was designed to protect and, more specifically, of the values the Framers relied upon the Court to protect."

Is it merely coincidental that during the Lochner era was one of the most regressive periods on the Supreme Court concerning the issue of race? This was a time when lynching was in its heyday!

[IronDragon]

Why is there no call for the impeachment of these wrong-headed judges sitting on the Supreme Court, nor even any talk of the procedure? At least we have firebrands calling for impeachment of Bush and Cheney, but not a peep regarding Thomas, Scalia, Alito and Roberts. Supreme Court Justices are subject to the law, are they not? Well, let's have them face it. Okay, so maybe we'll have to have a Dem President and 70% in both the House and Senate to make it happen. I believe, however, that my point is valid, that if a Justice of the Court is not following the Constitution of We The People, then it is pointless to allow that Justice to remain seated.

[oldpotsmuggler]

This nation has much to fear in the possibility that this Court will overrule Roe v. Wade because there is far more at stake there than just abortion rights. Roe can't be reversed without "The Right To Privacy" being sacrificed, and there is no stopping our descent into tyranny of the right wing if we ever lose the privacy right. At that point we revert to the government gaining primacy over the individual, rather than vice versa.

This Term presents the perfect case to serve as a barometer for forecasting how much trouble we are really in. It's the D.C. gun law case. If the Court construes the Second Amendment as creating an expansive personal firearms right then there is only a matter of time for Roe to be tossed in the crapper.

This conclusion stems from the reality that the Court has signaled that it is antagonistic to the fact that the term "Privacy" does not appear in the Bill of Rights. However, the Second Amendment only specifically mentions "a well regulated militia". If the court takes that Amendment to where the right wing wants it taken such can only be done by adding language to the original document, something conservatives supposedly abhor. For them to do it anyway means that there truly is no guiding principle being applied, only the expediency of furthering the conservative agenda.

Personally, I think that individual firearms rights stem from the same source as individual privacy rights. However, these Justices have shown us repeatedly that they dance to a different drummer than "the greatest freedom for the greatest number". They hardly ever have seen a restriction on business that they didn"t disdain, and a restriction on personal liberty that they were not willing to let stand.