Thanks to two developments—the nomination of
Sonia Sotomayor and the decision of the Supreme Court to hear the
gun-rights case McDonald v.
Chicago—the question of judicial philosophy has
recently, once again, been in the news. The first of these
developments united conservatives, whereas the second divided
them.
Sotomayor, conservatives agreed, was a progressive jurist—a judge
who shows insufficient deference to the text and meaning of the
Constitution, preferring to interpret laws according to her own
values. Case closed. The only remaining question is how much
damage she and future Obama appointees can do.
McDonald, meanwhile, isn’t at all
cut-and-dried for the right. The case builds on last
year’s D.C. v. Heller, in
which the Court struck down a gun ban in the nation’s capital,
saying that the Second Amendment protects an individual right to
keep and bear arms. This was itself controversial in conservative
circles; some said the Supreme Court had overstepped its bounds,
and should have left the issue to the elected branches of
government. McDonald asks the
question of whether the Second Amendment—which initially applied
only to the federal government, including the government of
Washington, D.C.—should also apply to state and local
governments.
Both of these developments raise issues that go to the heart of
the judiciary’s future. Yes, for right- wingers, Sotomayor
is a setback, but she comes in the midst of a very
significant resurgence of conservative jurisprudence—a resurgence
that came about through both politics (Republicans appointed six
of the Court’s nine current justices) and academic research. In
some ways, particularly intellectually, the conservative approach
to the law is stronger than ever.
McDonald, meanwhile, exposes
fractures not only within conservatism, but within liberalism as
well. Factions on both sides of the aisle disagree not only
on whether but also on
how the Court should apply the Second
Amendment to the states.
II.
FIRST, A WORD ON TERMINOLOGY. A
“conservative” judge is not one who always votes to uphold
conservative laws and to strike down liberal ones. Rather, when
observers call a judge “conservative,” they typically mean that
he is to some degree an
originalist. That is, he believes
that laws have reasonably definite meanings, set by the words
within them, and that these meanings do not change over time.
Originalists do not believe that the Constitution is “living,”
and most originalists agree that judges should avoid looking
beyond the text of enacted laws, except to learn the context and
meaning of the laws themselves.
Originalism has come a long way in a very short time.
During a speech at an American
Spectator dinner in late 2008, Justice Samuel
Alito noted that there has been an explosion of judges’ citing
dictionary definitions from the eras when laws passed. This
reflects a desire to understand what laws meant when the people,
through their representatives, consented to them. Alito also
noted that in Heller, both the
majority opinion and the main dissent used originalist arguments.
That is, the justices disagreed only on what the words of the
Second Amendment meant to the generation of Americans that
enacted it, and used a good deal of historical evidence in making
their points.
To understand originalism’s rise, it helps to understand
originalism’s history. In the 18th century and most of the 19th,
originalism was the only game in town. The Supreme Court almost
never struck down the actions of the other branches of
government. When the justices made decisions, the reasoning was
typically grounded in the text of the Constitution, sometimes
with extra evidence of the Founders’ intentions from contemporary
documents like the Federalist
Papers.
In the decades leading up to the New Deal, the Court
increasingly struck down federal and state laws. Often its
reasoning involved the dubious doctrine of “economic due
process”—the idea that the Fourteenth Amendment’s guarantee of
“due process” guaranteed a right to freedom of contract, even
though no such right is stated explicitly. In Lochner
v. New York (1905), the most widely cited of
these cases, the Court struck down a state law limiting the
number of hours bakery employees could work.
These decisions sometimes impeded President Franklin Delano
Roosevelt’s ambitions. But by this time academia had revolted
against decisions like Lochner, and
the Court slowly caved (thanks in no small part to FDR’s
appointment of eight justices). On questions of economic policy,
it let states regulate as they pleased. In other areas, the Court
expanded its role in overseeing legislatures. It used the “due
process” clause—ironically, in much the same way
Lochner had—to “incorporate” the Bill
of Rights to prevent the states, not just the federal government,
from passing laws that curtail constitutional rights. This
process had begun with 1925’s Gitlow v.
New York, which
incorporated freedom of speech, but picked up steam in the 1940s.
For example, 1947’s Everson v. Board of
Education prevented state-run schools from
establishing religion.
In addition to incorporating enumerated rights, justices
protected, usually on due-process grounds, a slew of rights that
weren’t even mentioned in the Constitution. Starting in the
1960s, the Court found rights for birth control and abortion, and
for criminals to be “Mirandized” before answering questions. The
Court never became so bold as to admit it was making things up.
Every decision was presented as flowing naturally from some part
of the Constitution, or at least from the Constitution’s
principles. But it’s undeniable that the document’s original
meaning became less and less of a concern.
The most notorious example, of course, was 1973’s
Roe v. Wade. The basic reasoning was
that a state could not ban abortion without running afoul of “due
process”—even if the state legislators went through the proper
(or “due”) lawmaking process. Such a law violated the
“fundamental” “right to privacy,” and thus its passage failed to
provide “substantive” due process. Decisions leading up to
Roe (in particular
Griswold v. Connecticut, the
birth-control decision) had recognized the privacy right, which
supposedly had “roots” in the First Amendment; could be found in
the Fourth, Fifth, and Ninth Amendments; lurked in the
“penumbras” of the entire Bill of Rights; and even emanated from
the “concept of liberty” underpinning part of the Fourteenth
Amendment.
III.
IT WAS AGAINST THIS TIDE that originalism swam. The academy
produced some critics of judicial activism, and even some mild
successes, almost as soon as the most controversial decisions
started materializing. As Judge Douglas H. Ginsburg once pointed
out at an American Enterprise Institute lecture, in 1966
then-professor Robert Bork offered an originalist analysis of the
antitrust Sherman Act—the law’s drafters, Bork said, intended the
law to protect consumers, not to further various social aims the
way judges had interpreted it. The Supreme Court agreed.
Professor Raoul Berger, a liberal, released
Government by Judiciary in 1977,
arguing that the Constitution requires judges to stick to the
Framers’ original intentions, and that the Warren Court’s
Fourteenth Amendment jurisprudence had strayed from those
intentions.
In the 1980s, the interpretive method gained a high profile
thanks to two of its backers: Edwin Meese III, Reagan’s attorney
general; and Bork, who by this point had served as President
Richard Nixon’s attorney general and whom Reagan appointed
(unsuccessfully) to the Supreme Court. In 1982, the
pro-originalism Federalist Society launched chapters at some of
the nation’s premier law schools. As the New York
Times later put it (in its typical unbiased fashion),
the Society quickly became a “shadow conservative bar
association, planting chapters in law schools around the country
that served as a pipeline to prestigious judicial
clerkships.”
It was tough going, though. “For many years, the
Constitution was hardly mentioned in constitutional law classes,
let alone read,” Meese, now chairman of the Center for Legal and
Judicial Studies at the Heritage Foundation, remembers. “I gave a
speech on originalism, and I mentioned that in the leading
constitutional-law casebook, the Constitution itself wasn’t
involved until Appendix H. I got a letter from the professor
who’d written it, and he said, ‘I wanted to let you know that in
the next edition, I’m moving the Constitution up to Appendix
A.’”
But political success led to academic recognition. With
Meese and Bork national figures, and with Antonin Scalia fast
becoming an influential member of the Supreme Court—and an
increasingly public defender of originalism—the importance of
understanding originalism was clear to anyone who wanted to
practice constitutional law. Professors investigated the
histories of various constitutional provisions, providing a
foundation for originalist arguments. Law students were taught
originalist philosophy, even if professors continued to cast it
in a negative light. And most important, originalism’s defenders
refined the theory in response to its critics, moving originalism
onto firmer ground. Princeton law professor Keith Whittington
writes that these adjustments created a “New Originalism.”
Adherents to the “Old Originalism,” such as Berger, had
often focused on original intent:
what the writers of a given law meant to do. The obvious
counterargument was that it is impossible for us to read the
minds of the dead—and even if we could, we might find that
different drafters wanted different things from the same laws. In
response, many originalists, including Scalia, began emphasizing
laws’ original public meaning
instead. The idea was that it didn’t matter what the Framers
subjectively wanted; they passed laws made up of words, and at
that time, those words had specific, objective meanings. One can
ascertain these meanings by consulting contemporary writings,
particularly dictionaries.
“The ‘New Originalism’ is much less interested in reining
in the judiciary than in getting the Constitution right—even
where the meaning of the Constitution would authorize greater
judicial review, or constrain Congress or the president,” says
Randy Barnett, a legal theory professor at Georgetown University
and author of Restoring the Lost
Constitution (Princeton University Press, 2005). For
example, New Originalists often decry how Congress has used its
right to “regulate commerce…among the several states” to justify
just about any law it feels like passing—and also decry that the
Court has let Congress get away with it.
These changes helped originalists build on the momentum
they’d gained in the 1980s. Though the Rehnquist court of the
1990s can’t be considered originalist on the whole, many
opinions—including some by centrist and liberal justices—made
arguments based on the original intent or meaning of the
Constitution, writes history professor Johnathan O’Neill in
Originalism in American Law and Politics
(John Hopkins University Press, 2007).
IV.
DID SUCCESS COME WITH A COST? For those who
think courts should defer to the elected branches of
government—even, sometimes, when those branches exceed their
constitutional powers—the answer is yes. These critics are
skeptical of “judicial supremacy,” the idea that the Supreme
Court gets the final say on interpreting the Constitution.
In this view, when mainstream originalists supported the
majority’s interpretation of the Second Amendment in
Heller, they had made a 180-degree turn:
they used to protest when the Court struck down democratically
enacted laws such as abortion bans, but here they were asking the
Court to strike down the elected D.C. government’s handgun ban.
(For many New Originalists, the difference is that the
Constitution explicitly protects the right to keep and bear arms,
but says nothing about abortion.)
True, critics-from-the-right of
Heller often sided with the dissent’s
originalist analysis over the majority’s— they agreed that the
Second Amendment, interpreted according to its Founding-era
meaning, did not create an individual right to keep and bear
arms. But the deeper criticism they made was that even
if the majority’s interpretation of the Second Amendment was
correct, there are reasons the Supreme Court
should not have enforced this interpretation against another
branch of government. For example, in Harvie Wilkinson’s
Virginia Law Review article “Of Guns,
Abortions, and the Unraveling Rule of Law,” three of the four
anti-Heller arguments given are
“descending into the political thicket,” “ignoring the
legislature’s strengths,” and “disregarding federalism’s
virtues.”
Matthew J. Franck, a Radford University political science
professor and Heller critic, has
vigorously supported a strict definition of judicial restraint;
he’s the author of Against the Imperial
Judiciary (University Press of Kansas, 1996). Franck
does see the Constitution as a document granting Congress
specific and limited powers, and he admits that Congress
frequently exceeds those powers. The rub? “For me, one of the
most under-examined questions in originalism today is, What was
the original understanding of the scope and authority of judicial
power?” Franck says. “We’re liable to believe that every breach
of the Constitution is somehow fit for judicial
invalidation.”
Franck advances a thesis that he admits sounds harsh and a
little paradoxical: According to the Constitution, the executive
and legislative branches can get away with some violations of the
Constitution. The text of the document does not grant courts the
right to nullify the acts of other branches of government, and
again, courts rarely did so during America’s first century of
existence.
Of course, New Originalists read the Constitution and its
history as being much more friendly to judicial review than
Franck does. They point out that Hamilton talked about judicial
review in the Federalist Papers, for
example, and that Marbury v. Madison
laid the groundwork for at least some judicial review only
a decade or so after the document’s ratification.
And as a practical matter, critics have pointed out, when
Congress, states, and the president get to decide whether their
own actions are constitutional, it’s akin to letting the foxes
guard the henhouse. Franck replies to this line of reasoning
thus: “Everybody who believes the judiciary is or ought to be the
broad-ranging and final authority on every constitutional
question is ignoring the fairly routine violations of the
Constitution by the judiciary. By my
reckoning, the Supreme Court violates the Constitution four or
five times a year.”
V.
SOME ON THE LEFT have had a very different reaction to
modern originalism: They’ve not quite accepted it, but they have
made it their own. These liberals often concede that the Court’s
excesses in the ’60s and ’70s don’t square with the
Constitution’s original meaning, but they add that the Court
could have expanded citizens’ rights in a way that
was constitutional. Specifically,
they say that the Fourteenth Amendment’s “privileges or
immunities” clause—“no state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States”—provides a better excuse to do this than the
guarantee of “due process” does.
Their main argument is that the Slaughter-House
Cases (1873), decided soon after the Fourteenth
Amendment passed, interpreted the “privileges or immunities”
clause too narrowly. The majority decided that the clause “did
not create additional rights, it merely required states to apply
[their] laws equally to non-state residents as well as state
residents.” Since then, the clause has been essentially
meaningless. But correctly interpreted, these liberals say, the
clause not only requires full incorporation of the Bill of Rights
(as opposed to the “selective” incorporation achieved thus far
under “due process”), but might protect things like abortion and
gay rights too.
This reasoning, at least regarding the incorporation of
enumerated rights, is far from implausible, and even some on the
right share it. Justice Clarence Thomas implied such a view in a
1999 dissent, writing that “the demise of the Privileges or
Immunities Clause has contributed in no small part to the current
disarray of our 14th Amendment jurisprudence” and that he’d be
willing to reconsider the clause’s meaning. Even when it comes to
unenumerated rights, many libertarian-leaning originalists (such
as Barnett, who would like to see the Court protect everything
from sodomy rights to economic freedom) share the
progressive-originalist view.
Which bring us to McDonald, the
gun-rights case now before the Court. The case specifically asks
the Court to consider the “privileges or immunities”- based case
for incorporation. There’s no way to tell what, if anything, will
come of this—it seems likely that the Supreme Court will
incorporate the Second Amendment, but it could do so on familiar
“due process” grounds (as the Ninth Circuit already did in a
different case) rather than head in this brave new
direction.
If the Court does reconsider the “privileges or immunities”
clause on originalist grounds, it will likely have to do so over
a series of cases, during which it will face many thorny
questions. What economic and civil rights does the clause
protect? Can one determine those rights by researching what the
term of art “privileges or immunities” was commonly understood to
mean when the Fourteenth Amendment passed, or must one simply
guess? Should the Court overturn old “due process” decisions and
replace them, when appropriate, with “privileges or immunities”
ones? Or should the new rights just build on the old?
Perhaps what should concern conservative originalists most is
that, even if these cases put the “privileges or immunities”
clause back in its rightful place, future courts could stretch it
the same way they stretched the due-process clause. “Privileges
or immunities” could give a progressive court a whole new avenue
to run down when it came to inventing rights.
VI.
HOWEVER THINGS PAN OUT, originalists will have
much more sway than they had a few decades ago. Obama’s liberal
appointees will likely replace other liberal judges. Liberal John
Paul Stevens, born in 1920, is the Court’s oldest member by more
than a decade; Ginsburg and Breyer were born in the 1930s (though
so were Scalia and moderate Kennedy). Roberts and Alito were born
in the 1950s, Thomas in 1948. It seems most likely that Obama
will preserve liberalism on the Court— possibly for decades, if
he replaces several more old liberals with young ones—but
probably won’t be able to roll back the gains of
originalism.
It’s also important to remember the lower federal courts,
which to varying degrees have adopted the Court’s proclivity for
ignoring the Constitution’s meaning. Lower courts have
significant power, and could soon be home to some important
battles. There is a push for courts to recognize gay marriage,
though up to this point only state (not federal) courts have done
so. It will probably fall to the lower courts to untangle some of
the knots McDonald leaves. Obama’s
appointments to lower federal courts could determine the policies
governing entire regions.
Aside from filibustering particularly egregious nominees,
there’s not much originalists can do about judges while the Obama
administration is in office. They can be grateful, however, for
the work various scholars and judges have done to bring the
philosophy back.
