Category Archives: Constitution

Whose Originalism?

The embrace of a so-called “originalism” by lawyers and judges who want to turn back the clock has been roundly–and effectively–criticised by legal scholars, who point out that (among other inconvenient facts) America’s Constitution was the product of many Founders, and thousands of citizens participated in the debates over its ratification. Multiple histories confirm that those individuals lacked anything close to an identical understanding of its provisions.

And then, of course, there’s that little problem with the passage of time. Conservative judges may sneer at the concept of a “living Constitution,” but properly understood, that concept simply requires us to apply the values the Founders were trying to protect to new and unanticipated “facts on the ground.”

A question I used to ask my students was intended to illustrate that point; I would ask the class what James Madison thought about porn on the Internet. Rather obviously, Madison was totally unaware of the Internet (also radio, television…most of our current methods of communication). But Madison and other Founders had very firm ideas about the value of free speech and the danger of government censorship–values that found expression in the First Amendment. The courts don’t limit application of the Free Speech clause to newspapers and pamphlets that were like those available when the Bill of Rights was passed–they apply the original principle to our current reality.

As a recent essay in the New Republic put it, originalists argue that the Constitution should be interpreted according to its original meaning, but they fail to ask the more pertinent question: original meaning according to whom?

In the case of the Constitution, the problem isn’t simply that its 55 Framers understood key clauses differently; it’s that the tens of thousands of ordinary Americans who publicly debated the document during the ratification process understood the text to mean different things, too. To paraphrase the historian Jack Rakove, there was never a single original meaning, only original meanings.

Many legal scholars argue (pretty persuasively) that originalism is just conservative politics masquerading as history. But Akhil Reed Amar, a law professor at Yale whose books on the Constitution are among my all-time favorites, is a scholar who argues that adhering to “original meaning” would support a lot of liberal outcomes.

In his latest, Born Equal: Remaking America’s Constitution, 1840–1920, the second in a proposed trilogy on the Constitution’s history, Amar traces the origins of the Reconstruction amendments—the Thirteenth Amendment, abolishing slavery in 1865; the Fourteenth Amendment, establishing birthright citizenship, due process, and equal protection in 1868; and the Fifteenth Amendment, granting Black men the vote in 1870—along with the Nineteenth Amendment, which extended suffrage to women in 1920. His central argument is that these amendments succeeded because their advocates framed them as fulfillments of the nation’s founding texts, above all the Declaration of Independence’s claim that “all men are created equal.” By rooting their arguments in the Declaration and interpreting the Constitution as the Founders supposedly intended, figures like Lincoln—the book’s central hero—emerge as the first true “originalists.”

The New Republic’s essay is lengthy, and engages primarily in a historical critique of Amar’s book. While that historical debate is worth reading, most germane to the current arguments about originalism is its observation that the Founders themselves rejected the belief that the Constitution had a fixed meaning–an argument made by Jonathan Gienapp, in his book Against Constitutional Originalism: A Historical Critique.

The essay concludes with another observation–one that we are re-learning at a time when an American President is dismissive if not contemptuous of any constitutional interpretation or restraint.

It wasn’t originalism that saved the nation or its Constitution, it was a decades-long struggle of ordinary people who knew what no document needed to tell them: They were all born free and equal. Sometimes their efforts were in accordance with the law, but sometimes they were in open defiance. Every time an enslaved person escaped to the North, and every time an abolitionist harbored them, they were flagrantly violating the Constitution. The lesson here can’t be that they should have been more faithful to the Constitution, good originalists like Lincoln. It’s that we should recognize the Constitution’s flaws, think creatively how we interpret it, and make it easier to amend. After all, no one wants another civil war.

Actually, there are elements in MAGA that would welcome another civil war, but the basic observation is sound.

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Permit Me To Belabour The Point…

Yesterday’s post focused on a concern with a local government process–the people I cited weren’t opposed to the result, but  to the path chosen to reach that result. Their objection fell into a category that I’ve frequently addressed (okay, belaboured)–a category I call “ends and means.”
Political scientists point to one clear distinction between western constitutional systems and the various dictatorships and theocracies around the globe: the formers’ emphasis on process. We might characterize our Bill of Rights as a restatement of your mother’s admonition that how you do something is just as important as what you choose to do.
“The ends do not justify the means” is a fundamental American precept.
Ask any American if he or she believes we should deport dangerous criminals who are undocumented and the answer will probably be yes. Ask that same American if we should eviscerate the Constitution in the process—hiring masked thugs, arresting people based on their skin color, and jettisoning other basic due process guarantees—and those Americans become far less supportive.

This administration’s disregard for the rule of law and its multiple deviations from the constraints of the Constitution have been particularly shocking, because its contempt for the rules is so blatant, but a glance back through history yields other examples of  administrations pursuing arguably reasonable ends by questionable or improper means. (There is, for example, the relatively recent example of the Iraq war. As I noted at the time, reasonable people might have agreed that ridding the world of Sadaam Hussain was a positive, even if it turned out that he didn’t have weapons of mass destruction. Many of those same people, however, quite properly condemned the dishonest process through which the Bush administration led us into that war.)

As I have often noted, in governance, there are two basic questions: What and How. Ends and means. Our current political polarization is between the MAGA/Project 2025 ideologues who are focused solely on the “what,” and those of us who are intent upon protecting a Constitutional order prescribing “how.” That’s a critical difference.

Some twenty-plus years ago, Rick Perlstein made a point about the political parties that has only gotten more apt.

We Americans love to cite the “political spectrum” as the best way to classify ideologies. The metaphor is incorrect: it implies symmetry. But left and right today are not opposites. They are different species. It has to do with core principles. To put it abstractly, the right always has in mind a prescriptive vision of its ideal future world—a normative vision. Unlike the left (at least since Karl Marx neglected to include an actual description of the “dictatorship of the proletariat” within the 2,500 pages of Das Kapital), conservatives have always known what the world would look like after their revolution: hearth, home, church, a businessman’s republic. The dominant strain of the American left, on the other hand, certainly since the decline of the socialist left, fetishizes fairness, openness, and diversity. (Liberals have no problem with home, hearth, and church in themselves; they just see them as one viable life-style option among many.) If the stakes for liberals are fair procedures, the stakes for conservatives are last things: either humanity trends toward Grace, or it hurtles toward Armageddon…

For liberals, generally speaking, honoring procedures—the means—is at the very core of being “principled,” of acting with legitimacy. Today’s conservatives, however, fight for desired outcomes—the ends, and they are very willing to do so at the expense of what they dismiss as “procedural niceties.”

For example, in a constitutional democracy, the franchise is first among the means. Democrats generally understand the electoral system to be one in which citizens demonstrate their preference for “ends”–for policies–at the ballot box; accordingly, they believe that the more extensive the turnout, the more legitimate the ensuing legislative mandate.

Republicans–focused on ends–disagree.

Red states like Indiana try to eliminate as many urban and minority voters from the rolls as possible–efforts that make all kinds of sense to people who believe they are on a mission to save civilization from an Armageddon where “those people” will replace the good White “Christian” men that their God wants in charge. Those Republican officeholders agree with Machiavelli, who said “We ought to see clearly that the end does justify the means…If the method I am using to accomplishes the goal I am aiming at, it is for that reason a good method.”

The problem is, when an end is achieved by an improper means, it is illegitimate. Even a good end achieved by an illegitimate means undermines the rule of law and threatens social peace.

That’s a lesson Trump is incapable of learning. I’ll belabor that point tomorrow when discussing Venezuela.

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An Unfit Judicial Nominee

Apologies for inundating your inboxes yesterday. The post was sent by accident–it was scheduled for January 1st and will repeat then. Mea culpa. (When I’m in a hurry…)

Speaking of the courts, as I did yesterday, an Indiana lawyer named Justin Olsen has been nominated for a judgeship by Donald Trump. He is apparently as qualified as the members of Trump’s cabinet…which is to say, not.

The first clue was his rapturous introduction by Indiana’s White Christian nationalist Senator, Jim Banks. And while Bank’s endorsement should really have told us all we needed to know, a google search turned up a lot more.

Trump has nominated Olsen to fill a vacancy in Indiana’s Southern District federal court. A brief review of Olsen’s confirmation hearing certainly confirmed one thing–he is manifestly unfit to join that respected and respectable bench.

The Indiana Lawyer has reported on the “highlights” of that hearing.

Not only did Olsen refuse to say that Joe Biden had won the 2020 election, he refused to respond to questions about the insurrection of Jan. 6th, saying only that those events were a ‘matter of public controversy.” He even declined to offer an opinion on whether those events–videos of which were widely publicized– constituted an assault on the U.S. Capitol.

His responses to other questions–even friendly questions from Republican members of the committee–elicited beliefs that only Samuel Alito could love.

Olsen was asked about a sermon he had delivered as a Reformed Presbyterian elder, in which he  opined that people with disabilities should not marry, that having sex outside of marriage was a “form of sexual perversion,” and that wives should be subservient to their husbands. He responded that it was the doctrine of the church he was attending that fornication is a sin, and in response to a question about wives being subservient to their husbands, his response was that he believed “every word of the Bible.” (Presumably, if he is confirmed, that “biblical belief” would supercede any pesky, contrary constitutional precedents.)

Excuse me, but belief in “every word” of the bible requires ignoring that good book’s multiple contradictions.

Respected theologians have pointed to numerous passages in the bible that contradict each other. For example, Samuel 17:50 says David killed Goliath, but in Samuel 21:19, it says Elhanan kills Goliath the Gittite. Matthew 27:5 says Judas hanged himself, but Acts 1:18 has Judas falling headlong, bursting open with his intestines spilling out. Malachi 3:6 says God doesn’t change his mind, but Genesis 6:6 says God regrets creating humanity, and Jonah 3:10 tells us that God changed His mind about destroying Nineveh. There are numerous other examples–typically ignored by the so-called “biblical literalists” who use their “piety” as an excuse to impose their favored beliefs on others and who cherry pick their bibles for the passages that can be used to support their biases.

His selective “biblical” beliefs have evidently animated Olsen’s previous legal work. As the Indiana Lawyer reported,

When Trump nominated Olson, he prominently touted that that Indiana attorney has been representing three former University of Pennsylvania women swimmers that sued Penn, Harvard University, the Ivy League and the Indianapolis-based NCAA for alleged Title IX  violations by allowing transgender swimmer Lia Thomas to compete on Penn’s women’s swim team in 2021-2022.

An article from Balls and Strikes on the confirmation hearing reported Olsen’s reply to a question about a 2022 sermon in which he said that “transgenderism, homosexuality, fornication, and all sorts of sexual perversions” were forms of hypocrisy that come from “shame on the inside.” In his response, Olson said that he didn’t “recall the precise wording” of his remarks, but conceded that the language sounded familiar.

As the linked report concluded,

Olsen said that he meant his words “for the edification of the people that I was preaching to,” and assured Kennedy and the rest of the committee that if confirmed, he would set aside his personal beliefs, apply the rule of law, and so on and so forth. I am sure that normal people in Indiana who do not want their federal judges to be alarmingly anti-gay, anti-trans, anti-disabled, anti-sex weirdos therefore have nothing to worry about.

No wonder Indiana’s Christian nationalist Senator Jim Banks was quoted as saying that he was “blown away by Olsen’s credentials” and asserting “that the nominee has a record of doing the right thing.”

When people like Jim Banks are deciding what “the right thing” is, Indiana’s litigants are in a lot of trouble.

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Fixing The Court

If there is one word that has been over-used ever since Donald Trump emerged from whatever fetid swamp he previously inhabited, it’s “normalization.” As the administration ignores the rule of law, breaches longstanding norms, and otherwise engages in decidedly abnormal behaviors, the legacy media and national businesses and institutions have largely gone along–metaphorically shrugging their shoulders while murmuring their objections.

That normalizing isn’t new. For years, those same institutions (and to be fair, the majority of the American public) have ignored the increasingly erratic operation of many of America’s governing structures–the misuse of the filibuster, the anti-democratic effects of the Electoral College, the blatant gerrymandering, and the problematic functioning of the Supreme Court.

The Court’s current, blatantly corrupt majority has focused public attention on its erratic and partisan rulings. But for years–well before the more recent decisions that have damaged the Supreme Court’s legitimacy, scholars who study the judicial system had been sounding alarms. Most of those concerns were focused on practices that had resulted in the Supreme Court accepting review of fewer cases each year, and the fact that Justices were living much longer these days–raising the probability of judicial senility. Well before Trump, scholars were calling for various reforms, especially the imposition of term limits (most favored eighteen years–long enough to accomplish the Founders’ goal of shielding Justices from popular passions.)

The subject of Court reform has taken on new urgency, for obvious reasons, and a number of possible “fixes” await a federal Democratic trifecta. One of the most intriguing was offered by Robert Hubbell, a lawyer whose Substack I read daily. Hubbell cites a book reviewed by The Guardian, in which legal scholars argue that the Court has “so delegitimized itself that nothing short of truly radical reform will save democracy.”

As Hubbell writes,

If we do not act boldly and quickly when we next have the chance, the damage Trump has inflicted on the DOJ and the Supreme Court may last a generation. Expand the number of justices to the point that the reactionary majority is impotent, and then begin a three-year plan to reverse every lawless, racist, anti-democratic decision issued by the Roberts Court.

Expansion of the Court, while controversial, is a common recommendation. What isn’t common is another proposal, which I found both fascinating and persuasive-“to split the Supreme Court into two divisions—one that hears cases within the “original jurisdiction” of the Court, and one that hears cases in the appellate jurisdiction of the Court.” That would allow “the assignment of “senior” justices to cases that are almost never presented to the Court—”so-called cases of original jurisdiction involving (e.g.) disputes between princes and ambassadors.”

Hubbell quotes an article from Daily Kos describing the plan:

We will need Congress to pass a new law that pushes the older justices aside and ties them up handling cases that don’t mean much to the American people.

The new law would say, “Justices of the Supreme Court who have served for 15 years or more shall be assigned to Division A of the court.

Division A will hear all cases affecting ambassadors, other public ministers and consuls;—all cases of admiralty and maritime jurisdiction . . . (These are cases that the existing Supreme Court now hears with “original jurisdiction.” It means the Supreme Court handles these cases from beginning to end with no trials in the lower courts.)

The statute should go on to say, “Division B shall be made up of justices who have served less than 15 years on the Supreme Court. After the year 2028, the president may appoint additional justices to this body . . . .

Survey research confirms that public opinion of the Court is at historic lows. A majority of Americans–and a significant majority of the legal profession– see the current Court as an overtly politicised body with significant ethics issues. Its unprecedented use of the “shadow docket” has unsettled both litigants and judges on the lower courts. And there is widespread disapproval of this Court’s consistent disregard for precedent and its dangerous undermining of Separation of Powers in order to empower our would-be king.

As the Editorial Board of the New York Times recently wrote, the lower courts “have responded heroically to Mr. Trump’s ill-founded efforts to centralize power and weaken democracy.” District and appellate courts have blocked Trump policies hundreds of times this year. “In many of those instances, however, the Supreme Court later overruled the lower courts, allowing Mr. Trump’s power grabs. It did so almost entirely on its emergency docket..”

Normalizing this rogue Court–failing to check its excesses–would neuter the Constitution and jettison the rule of law. We can argue about the details, but reform is essential.

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Why The GOP Is No Longer A Political Party

I have repeatedly insisted that the MAGA cult currently operating as the Republican Party isn’t just a far cry from the party of Lincoln, but an equally far cry from the once-respectable political party of my younger days. As regular readers of this blog know, I spent some 35 years in that earlier GOP–met my husband and made many lifelong friends while serving in a Republican administration, and won a Republican Congressional primary with an agenda that included support for reproductive choice and gay rights.

I still have that husband and those friends. None of them vote Republican these days. All of them are appalled by the racism and viciousness of what has replaced a once-respectable political agenda.

Recently, the Contrarian focused on the vast differences between the MAGA/Trump cult and the political party it has displaced. The article began by agreeing that today’s GOP is more properly seen as a cult than a political party, finding it composed of “Trump idolaters, followers, zealots, sycophants, or devotees” who lack not just a concrete policy agenda “but all other fundamental elements of a political party.” Today’s iteration is “an empty political shell based exclusively on fidelity to a decrepit, unhinged autocrat.”

A political party is properly defined as a group of persons “organized for the purpose of directing the policies of a government”. As the article asserts–and as any sentient American can see– the GOP members of Congress have shown zero interest in discharging their constitutional duties or entering into serious debates over policy.

What about a governing agenda? The article notes the complete absence of a consistent ideology.

“States rights”? Well, they rail against federal regulatory overreach, but they condone federal troops’ invasion of U.S. cities. Indiana’s right-wing governor has threatened his own Republican state lawmakers for not capitulating to Trump’s gerrymander demands, just as MAGA Texas Governor Greg Abbott leaned on his state legislators (at Trump’s behest) to pass a redistricting grab that Texas lawmakers disliked. And while the MAGA contingent nominally supports “law and order,” it cheers the pardon of Jan. 6 felons and the dismissal of those who prosecuted them. Invariably, policy inconsistencies (e.g., America First but start a war with Argentina, fiscal hawkishness but run up the debt) swallow any cogent dogma. The only consistency is subservience to Trump. (Recall that the “party” platform boiled down to “whatever Trump wants.”)

Likewise, unlike normal political parties, the MAGA crew has no minimum standards for membership. Racists, misogynists, xenophobes, conspiracy mongers, criminals, antisemites, insurrectionists, and adjudicated sexual assaulters are all welcome—indeed, they can rise to highest rungs of the party! The days when conservatives ejected the John Birch Society are long gone.

The article went on to describe the party of Lincoln, and the historic elements of the party platform–especially a provision in the platform of 1856 pledging to uphold the principles of the Constitution and the rights of the States–and contrasted that agenda with today’s Trumpers who have essentially signed on to “anything Trump wants,” irrespective of constitutional constraints.

Today, the formerly Grand Old Party has substituted White nationalism for the Declaration’s “all men are created equal.” It no longer respects the limits on executive power extolled in previous platforms. The party that decried “judicial activism” now celebrates a corrupt Supreme Court. The party of free markets has abandoned competition and genuine capitalism for corporatism and crony capitalism. And the party that once opposed Russian aggression cheers as Trump betrays our allies, commits war crimes and makes the world more dangerous.

I know that several of my more partisan readers will post comments to the effect that the GOP was always on the wrong side of liberty and equality. They’re wrong. As the linked article notes,

Let’s face it, the current crowd bears no resemblance to the party with a policy legacy that includes such achievements as the Emancipation Proclamation, the post-Civil War amendments, the Land Grant Colleges and Homestead Act, civil service reform, the Sherman Anti-Trust Act, the National Park system, the first food and drug safety act, the interstate highway system, the EPA, the peaceful integration of Germany at the end of the Cold War, and the Americans With Disabilities Act. Indeed, no doubt Trumpists would condemn all that as part of a “woke,” communist agenda.

We need to face the fact that America does not currently have two political parties. We have the Democrats and today’s iteration of the KKK.

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