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Wednesday, October 26, 2005
The Bankruptcy of Originalist Constitutional Jurisprudence

Among constitutional law junkies, legal scholars, and some justices on the Supreme Court there is this mistaken idea of following and applying an originalist meaning of the constitution. CATO, as usual, has much to say in defense of the wrong opinion (CATO can usually be counted on the have the wrong opinion):
At the founding, and for some 150 years thereafter, the limits on congressional power provided by the Constitution of 1789 -- as modified by the Fourteenth Amendment -- were enforced by the Supreme Court. According to the textual plan, Congress is, with few exceptions, confined to the express powers enumerated in Article One of the Constitution. While these express powers were understood as flexible, they were nonetheless limited. When the federal government was limited to its enumerated powers, the states were left to the exercise of their police powers, subject to the limitations imposed upon them after the Civil War by the Fourteenth Amendment.
That's a pretty generous reading of post-civil war enforcement of state's rights. The Slaughterhouse Cases and other 19th century cases not only completely defanged the Civil Rights Act of 1866, but construed the 14th Amendment to create legal personality for corporations while blacks and natives languished and died under sharecropping, tribal cleansing, ghettoization, and exploitation. Given that we know, from the Congressional Record, that the Civil Rights Acts and the Fourteenth Amendment were designed, in part, to grant the Federal government power to protect and enable blacks, the Supreme Court's foot-dragging on this issue was more than a little disturbing. Many of the senators who wrote and defended these acts and that document were disgusted by how little the constitution at that time had to say about defending the weak against the uncaring trampling of titans. These senators only had contempt for the idea that the Constitution somehow limited them.
Sometime this fall, two of the five votes that made up the Lopez and Morrison majorities will have been replaced. Only Justice Clarence Thomas will be left from the three Raich dissenters. As the new chief justice (assuming he is confirmed), will John Roberts assume the role of his mentor William Rehnquist -- for whom he clerked -- and lead the Roberts Court to enforce the Constitution's original plan of limited federal power? Will President Bush now look for a nominee to replace Justice O'Connor who is as committed to the New Federalism as she was? Given that so many of the New Federalism cases were 5-4, if either of the new justices adopts the mantra of "judicial deference" to congressional power, then Chief Justice Rehnquist's death, along with Justice O'Connor's retirement, may presage the second death of federalism. A judicial withdrawal from enforcing the original limits on the powers of Congress would undo the New Federalist legacy of William Rehnquist.

As the president now decides who next to nominate, he would uphold the Constitution by selecting a person with a firm and demonstrated commitment to the Rehnquist Court's New Federalism legacy. Only such a choice would continue the movement to restore the "first principles" of constitutionally limited government that William Rehnquist affirmed so eloquently. One can hardly imagine a sadder end to the tenure of William Rehnquist than that his most prized and important contribution to constitutional law is aborted by a conservative Republican president and a Republican-controlled Senate.
What exactly would this "first principles" jurisprudence entail? Who cares exactly what a bunch of men 'meant' when they penned a document in the wake of revolution? We now know that their historical imaginations were radical for their historical moment, and that the passage of time has given us the potential for an enlarged perspective. Why limit ourselves to necrocracy?

The Declaration of Independence provides an excellent case study to evaluate originalist jurisprudence. The Declaration says:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
This was a very radical idea at the time. In positing a set of "self-evident" divinely protected natural right, the writers of the Declaration of Independence turn against the pervasive legal positivist tradition of that day which maintained that the rights persons held were the rights given to them by the sovereign. Moreover, the securing of these rights of which Life, Liberty, and the pursuit of happiness were but just three, were the reasons why governments existed. In fact, the Declaration continues, the governments derived their "just powers"--that is those powers which a government can wield and hold morally--when those who governed consent in the manner, mode, and method of the governance. There is no divine right of kings; the kings and parliaments exist solely to protected the rights of the governed to pursue life, liberty, and happiness with the consent of the governed. Without this consent, or, if the sovereign choose to abridge these divine-backed rights, then they lose their just powers. This idea might have been the motivating factor for Madison's remark in Federalist No. 51 that "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

But exactly how many people was the "all" intended to encompass? There are two readings possible. If we remove this Declaration from its historical context then the all is an undifferentiated universal for all persons who were creating by the Creator. Since the source of the justification for this radical document was the divine endowment within each person, then all persons who were created would qualify as needing their consent to be governed. The second reading, in contrast, is historicist in its framing. The text did not use the word "person" it used the word "men." Men and man are universalizable only to the general, literate, propertied male population of that day. Being divinely created is not sufficient for rights for many of them believed that women, as well as men, were divinely created and chose to use the narrower language of men rather than persons. In fact, these inalienable rights were denied to women and slaves at the time.

Today we like the first reading because their limited universal of "man" has expanded into our universal "person." Thus, all persons need to consent to be governed for a government to have just powers to rule. We support the text of the Declaration without being bound by the meaning of the words as it was written.

CATO offers that future justices ought to be committed to Rehnquist's provision of protecting state's right as an end in itself and to . Fortunately Madison provides a warning against a Rehnquist-Scalia axis of state's rights as ends in themselves (a popular position for the "constitution-in-exile" camp).

James Madison belabors this point in the Federalist Papers:
Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape — that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. . . . [A]s far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.
Madison provides what he considers to be an easy rhetorical question for his readers: "...was the precious blood of thousands spilt, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?" I added to the emphasis to highlight that Madison juxtaposes state's rights as ends in themselves to state's rights for the purpose of guaranteeing rights. As I wrote earlier state's rights suffered a huge blow during Reconstruction and then again during the New Deal when it became plainly evident that the states were not protecting individual liberties. Madison's radicalism did not diminish once the Declaration was written; indeed he offered that the motivating principles behind the constitution were more important than the historical forms by which these principles manifested: "It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object." The teleology of government is the protection of the people; its power the people's consent.

Madison would not endorse the ultimate thrust of late Chief Justice's quixotic and reactionary opening to United States v. Lopez (1995): "We start with first principles. The Constitution creates a Federal Government of enumerated powers" which he subsequently expanded on in United States v. Morrison (2000). "The Constitution requires a distinction between what is truly national and what is truly local. . . . Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims." Rehnquist is incorrect; the framers of the various amendments of the Constitution distinguished between the national and the local only if the local was promoting the aims of the American government: individual rights. In fact, their fear was that when the states were protecting the inalienable rights of properties men, the Federal government's intervention into the matter would threaten rather than enhance the rights of the persons involved. However, Rehnquist's failing on this issue is not due to the fact that he missed the underlying principles of constitutional law--he was indeed a very bright man possessing both a curious mind and a voracious intellectual appetite--; rather his failing was that he didn't believe in alienable individual rights in the first place. In 1976 Rehnquist penned a classic statement of legal positivism when wrote in the Texas Law Review that: "If such a society adopts a constitution and incorporates in that constitution safeguards for individual liberty, these safeguards indeed do take on a generalized moral rightness or goodness . . . neither because of any intrinsic worth nor because of any unique origins in someone's idea of natural justice but instead simply because they have been incorporated in a constitution by the people." This clearly goes against the underlying principles of life in the constitution and underscores why Rehnquist believed the constitution was dead.

In contrast to all the bad jurisprudence of Rehnquist and CATO, Jack Balkin affirms the living constitution on Slate. You should read the entirety of this piece. He begins by writing "The framers expected that their language, not their intentions, would control future generations. They created, in John Marshall's words, a "constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs" and continues his argument eloquently from there to prove the following statement:
The living Constitution is central to the American constitutional tradition, so central that even its loudest critics actually believe in it. Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation. A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination. Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed—including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration's policy goals—from No Child Left Behind to national tort reform—would be beyond federal power.
All of the things Balkin enumerates here are goals to which we are committed as Americans in the 21st century. A dead constitution is insufficient as a governing tool given modern needs and subsequent historical experiences. The Constitution, then, like the Declaration of Independence, is not a source text from which we derive original meaning. It is like, rather, a philosophical work, whose construction, reconstruction, and interpretation is meant to tell us as much about ourselves as about the meaning of the authors. The Constitution is inspirational as guiding force, not as a legalistic commandment. By causing us to think about claims of justice and representation in a structured manner, the Constitution aids democratic life by grounding us in common principles, not first ones.