Category Archives: Constitution

A History Of Originalism

Jill Lepore is one of my favorite historians. My husband and I read her book “These Truths” a couple of years ago, and were impressed by her ability to convey the results of deep scholarship in accessible language.

Last October, Lepore published an essay in the Atlantic in which she demolished the incredibly dishonest judicial doctrine known as Originalism. The points she made in that essay have only become more relevant, as Americans struggle to recover the actual philosophy of our country from a corrupt administration and an equally unethical Court.

Lepore points out that the philosophy of amendment–of constitutional change–is foundational to our system.

It has structured American constitutional and political development for more than two centuries. It has done so in a distinctive, halting pattern of progression and regression: Constitutional change by way of formal amendment has alternated with judicial interpretation, in the form of opinions issued by the U.S. Supreme Court, as a means of constitutional revision.

It’s a pattern that has provided what Lepore calls “constitutional stability,” unlike the approach to constitutional interpretation that we call originalism. That approach was first proposed by Robert Bork, who maintained that the only way to read the Constitution is to determine the original intentions of its Framers, and that every other method of interpretation is really amendment by the judiciary.  Scalia adopted Bork’s approach and brought it to the Court, “trapping the Constitution in a wildly distorted account of the American past.”

Amending the U.S. constitution is a heavy lift, despite the convictions of Founders like Jefferson, who famously believed that each generation was obliged to rewrite its constitution to reflect changing times, and that a constitution belongs to the living, not the dead. (In a letter to Samuel Kercheval, Jefferson wrote that “Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.”)

Lepore addresses the significant defects of the “originalism” peddled by Bork and Scalia, and her essay is accurate and enlightening. But there is a better sort of “originalism” available to us–one more consistent with Jefferson’s observations and the needs of modern society.

When I taught, I introduced the concept of “original intent” by asking students what James Madison thought about porn on the Internet. Obviously, James Madison never contemplated an Internet (and who knows what porn looked like in his day), but he did have firm convictions about the importance of free expression and the deleterious effects of government censorship. Original intent, properly understood, requires courts to protect the principle that government ought not be able to decide which ideas may be communicated.

It is impossible to define original intent as Scalia did— as limited to what was in the minds of the Founders at the time they drafted the Constitution. But we definitely can and should defend the principles and values that the Founders were intent upon protecting.

The value of free expression. The value of religious liberty. The importance of separating Church from State. The value of individual autonomy (aka privacy), and one’s right to be “secure” in one’s papers and effects. The values of due process and equal protection.

The values that the Founders protected in the Constitution and the Bill of Rights are clear, even if their application in many modern situations is less so. The only approach to originalism that makes any sense is an approach that protects those values–an approach that serves as an anchor of continuity in a world where “facts on the ground” are always shifting and technology is constantly reshaping the issues with which courts must contend.

Does slapping a GPS device on a suspect’s car require a warrant? Is use of a technology that lets police see whether you’re growing pot in your basement from across the street a search for purposes of the 4th Amendment? Do Congressional efforts to censor the Internet run afoul of the First Amendment?

What would our quarreling and philosophically differing Founders (there were a lot of them, remember) “intend” about porn on the Internet?

We can only answer these questions and others like them in a consistent and principled way by considering the limits the Founders placed on government and the values those limits were intended to protect.

That would be a workable Originalism. I think Lepore would agree.

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Thomas Jefferson on whether the American Constitution is …
Thomas Jefferson on whether the American Constitution is binding on those who were not born at the time it was signed and agreed t…

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Did Thomas Jefferson really want the constitution to expire …
Feb 21, 2018 — DocSpit. • 8y ago. Considering the whole concept of amendments was to ensure that the constitution could be adapted to changing ti…

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Quotations – Thomas Jefferson Memorial – National Park Service
Mar 1, 2023 — “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the prog…

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Jamie Raskin

Jamie Raskin is one of my very favorite Congressmen. I was privileged to meet him when he was teaching Constitutional Law at American University, and I’ve followed–and applauded–his performance as a Representative and his constant allegiance to the Constitution, Bill of Rights and the rule of law.

Raskin recently had an op-ed in the New York Times, centered on the incredibly corrupt “slush fund” proposed by Trump, a fund that would reward the criminals he unleashed on the U.S. Capitol on January 6th. I was sufficiently impressed with his explanation of the constitutional and moral defects of that fund that I am doing something I have never previously done: I’m turning today’s post over to Congressman Raskin, and reproducing his entire essay. It’s worth reading in its entirety.

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These days it takes a spectacular burst of corruption to get the attention of our scandal-weary nation, but President Trump and his administration have managed, once again, to transfix Americans by establishing a $1.776 billion “anti-weaponization” fund in the Department of Justice that will undoubtedly be used to line the pockets of Mr. Trump’s partisans and foot soldiers — with your tax dollars.

The creation of this fund is a stupefying feat of self-dealing — part of a “settlement agreement” between the Department of the Treasury, which Mr. Trump controls, and the plaintiffs — Mr. Trump, two of his sons and their family business — who sued the I.R.S. for $10 billion over the leak of his tax returns. It will very likely result in an undeserved windfall to a legion of Jan. 6 rioters who have already unjustly received pardons from Mr. Trump.

Every part of this farce is an affront to the Constitution. It usurps both the exclusive power of Congress to legislate programs and spend money and the power of the courts to decide specific cases and controversies.

It is, quite simply, a scam.

Only Congress has the power to appropriate federal dollars. Article I, Section 9 of the Constitution states that “no money shall be drawn from the Treasury but in consequence of appropriations made by law.” But Mr. Trump and Acting Attorney General Todd Blanche seem to think they can conjure this giant slush fund into being without congressional approval.

Further, Article III, Section 1 states that the “judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.” Yet the settlement took Mr. Trump’s case out of the hands of the courts. And it calls for oversight by a five-member board, appointed by Mr. Blanche and whose members Mr. Trump can dismiss on a whim. Even if this fund were legitimate, that kind of setup wouldn’t be for Mr. Blanche to decide. Congress has never established a court, tribunal or board to hear pleas from people who believe they are victims of government “weaponization,” much less a fund almost certainly meant to reward supporters and allies of the president who feel they were wronged simply because their actions on Jan. 6, 2021, were prosecuted.

No matter what you think about the events of Jan. 6, hundreds of rioters indisputably broke the law that day when they stormed the Capitol trying to stop the certification of the 2020 presidential election and the peaceful transfer of power.

As regrettable as it is that most of the rioters were pardoned, there’s no denying that as president, Mr. Trump has that power. But the same Constitution giving him that power also says that “neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States.” Jan. 6 was indeed an insurrection, and pardon or no pardon, no one can legally be compensated for taking part in it.

As James Madison noted in Federalist No. 10, a cardinal precept of our legal system is that “no man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” Here, Mr. Trump’s administration “settled” a case that he brought, effectively making him the judge in his own case. He not only concocted the fund, but his Justice Department threw in a sweetener: shielding him and his sons from audits of any tax returns they have already filed.

The $1.776 billion figure is obviously meant to invoke the year of our founding. But go back and read the Declaration of Independence, which includes a long list of accusations directed at George III. Among them is the charge that the British king “has dissolved representative houses repeatedly for opposing with manly firmness his invasions on the rights of the people.”

And here’s the kicker: The nearly $1.8 billion will come from the Justice Department’s Judgment Fund, a fund created by Congress that the administration has already been abusing. The Judgment Fund was set up to allow the federal government to efficiently and promptly pay for final court judgments and proper legal settlements against the United States — a process that had once been enormously time-consuming and burdensome.

For 70 years, the Judgment Fund has served its original essential purpose of settling valid, good-faith claims: Two years ago, it paid out almost $140 million to dozens of young women and girls to resolve claims that the F.B.I. had failed to protect them from the actions of the serial predator Larry Nassar.

But Mr. Trump has treated this fund as a political piggy bank.

His Justice Department agreed to pay nearly $5 million to the family of Ashli Babbitt to settle its wrongful death suit against the government. Ms. Babbitt was a Jan. 6 rioter who was fatally shot that day at the Capitol. Her death was certainly a tragedy, but the suit was without merit. Meanwhile, not a single dollar from the fund went to the families of the police officers wounded and injured on Jan. 6, nor to the families of several who died in the wake of the violence.

In March, the department agreed to pay around $1.25 million to Michael Flynn, Mr. Trump’s disgraced former national security adviser, for a case that had been dismissed.

In April, the department announced another million-dollar settlement, this time with Carter Page, a former adviser to Mr. Trump’s 2016 campaign. Mr. Page’s lawsuit contended that he had been unlawfully surveilled by the F.B.I. during its investigation of contacts between the campaign and Russia’s government. A federal judge dismissed his lawsuit in 2022 on statute of limitations grounds.

Around 400 Jan. 6 rioters have already filed lawsuits under the Federal Tort Claims Act, with most seeking $1 million to $10 million. Another group of rioters — including Proud Boys convicted of assaulting police officers — filed a class action demanding over $18 million, claiming that officers who defended the Capitol on Jan. 6 caused them injuries. And five Proud Boys convicted of felonies including seditious conspiracy have filed a separate $100 million lawsuit. No one should be surprised if their cases wind up being swiftly “settled” via the president’s new MAGA gravy train.

But the “weaponization” fund is a rip-off on an unimaginably larger scale. This week, I introduced legislation to put a stop to this. It would bar the federal government from paying out monetary settlements to sitting presidents. It would also prohibit settlement payments for claims involving investigations or prosecutions related to Jan. 6 or foreign interference in the 2016 presidential election.

Members of Congress must act to reassert the exclusive power that the Constitution vests in the legislative branch — or else we will have gone a step further toward making Mr. Trump a king.

 
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And While We Are On The Subject…

Yesterday, I focused on the fact that Americans can no longer rely upon the Supreme court for defense of basic human and constitutional rights. I had already written and scheduled that post when I read Kristoffer Ealy’s truly outstanding diatribe on the subject at Lincoln Square.

Ealy teaches American Government, political behavior and political psychology in southern California, and as the saying goes, he has a way with words. His essay is long, but I really encourage you to read it in its entirety–it’s worth it. He begins with context:

Before we get into what this Supreme Court is doing now, it is worth remembering what it has always been capable of. Dred Scott v. Sandford (1857). Plessy v. Ferguson (1896). It took Brown v. Board of Education (1954) to begin correcting the most catastrophic of those failures — and even then, states had to be dragged toward compliance like toddlers toward a bath. The Court has always had the capacity for moral failure at scale. What is different now is the combination of ambition and costume.

Ealy unmasks the judicial rhetoric, recounting what actually happened in Callais, because–as he says– “the legal theater is designed to make your eyes glaze over and that is entirely intentional.”

Louisiana is approximately 33% Black. For years, it had one majority-black district. After the 2020 census, a lawsuit forced the state to draw a second majority-Black district, to give Black voters “a meaningful shot at electing someone who actually represents them.” Voters describing themselves as “non-African American” sued, claiming the new map was an unconstitutional racial gerrymander.

Justice Samuel Alito, writing for the six-justice majority, agreed with them. His central argument was that “the Constitution almost never permits the Federal Government or a State to discriminate on the basis of race” and that the question before the Court was whether “compliance with the Voting Rights Act should be added to our very short list of compelling interests that can justify racial discrimination.”

He concluded it couldn’t.

Ealy says Alito was “carefully arranging words into something that looks like principle from a distance and collapses into nonsense the moment you apply pressure.” He repackaged the protection of Black voters’ right to meaningful representation as racial discrimination. “Not misinterpreted. Repackaged.” (Actually, we shouldn’t be surprised by Alito’s dishonesty. It was front and center in Dobbs and Hobby Lobby.)

As Ealy points out, six justices signed on to a word salad designed to make dismantling of voting rights sound like the protection of them.

These are six people with law degrees from the most prestigious institutions in the country. Harvard. Yale. Notre Dame. Combined they have more legal training than most courtrooms have ever seen assembled in one room. And not one of them — not one — bothered to engage with decades of peer-reviewed scholarship on what race actually is and what racism actually does…

The audacity of Alito’s framing is not accidental. It is the entire con. He didn’t just reach a bad conclusion. He inverted the premise so completely that the remedy became the crime. That is not legal reasoning. That is a magic trick for people who find racism more comfortable when it comes with footnotes.

Ealy admits that he comes to his analysis as a political scientist, not a lawyer, and that he’s asking different questions: “does this decision move the country toward democracy or away from it? Does it expand the circle of political participation or contract it? Does it reflect the actual needs of the society it governs?” By those measures, he finds Callais a catastrophic failure, because–as decades of scholarship have demonstrated– “racism is not simply prejudice.” it is prejudice plus power— “the deployment of institutional authority in the service of racial hierarchy. Individual bigotry is prejudice. Racism is what happens when that bigotry gets a robe, a gavel, and the full weight of the federal government behind it.”

You really need to read the whole essay.

If there was any doubt that this administration and this Court are intent upon reviving Jim Crow, the haste with which Southern states are rushing to obliterate majority-black districts–and the Court’s decisions allowing them to do so, in stark contrast to prior precedents forbidding such changes so close to elections– should dispel it.

The South really is rising again–thanks in large part to this Court.

But so is a new civil rights movement.

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How The Court Was Co-opted

It is easy–albeit maddening–to follow the corruption of Trump and members of his administration, a corruption that exceeds even this administration’s overwhelming incompetence. Even low-information voters are now connecting the dots between soaring gas and grocery prices and the people in charge of the government.

Fewer Americans, however, recognize the role a corrupted Supreme Court has played in our current disasters, but without the co-option of the Court, Trump and his coterie wouldn’t be able to act with impunity. This Court has hobbled government regulatory activities, enabled racial discrimination by ICE, favored White Christian nationalists, and empowered a reckless, ignorant and mentally-ill autocrat.

The six Rightwing Justices are all culpable, but–as Robert Hubbell has recently documented— the Court’s rejection of stare decisis and its persistent failure to honor long-standing constitutional norms has been intentionally engineered by John Roberts. Roberts has carefully reshaped constitutional jurisprudence, “expanding and contracting the ‘strike zone’ at will—whatever was necessary to advance a conservative, pro-business, pro-religious cultural agenda.” Hubbell writes that Roberts is a creature of the Federalist Society, the Koch Brothers network and arch-conservative Catholic Leonard Leo, and he cites examples: The Lilly Ledbetter case in which the Court refused to find a remedy for pay discrimination (Congress later passed a law providing such a remedy); the horrendous Citizens United decision, opening the door wide for corporate and dark money in politics, and  of course, Shelby County v. Holder, the first of the cases eviscerating the Voting Rights Act. (Hubbell’s essay preceded last month’s decision in Callais, in which the Court delivered the coup de grace to racial electoral integrity.)

Hubbell was writing in the wake of a New York Times report that centered on leaked Court memos. Those memos revealed that  Roberts bent long-standing procedural rules “to reach a result that protected big business from the costs of clean-air regulations under the Clean Power Act of 2015.  Roberts’ novel use of the shadow docket to protect polluters from President Obama’s Clean Power Act became the template for the Court’s repeated use of the shadow docket to defend and advance Donald Trump’s unlawful agenda.”

I have previously written about the current Court’s expanded use of the shadow docket–a term coined to describe that part of the justices’ job that involves summary orders addressing management of the Court’s caseload, rather than decisions on the merits of cases. Under John Roberts, there has been a significant increase in the volume of “shadow docket” rulings, and its expansion into cases that are far beyond the purported limits of that docket. That expansion has been used to allow the Roberts’ Court to issue orders changing the effect of lower-court rulings while those rulings are being appealed. Hubbell quotes legal scholars who point out that the use of the shadow docket to issue decisions going to the merits of a matter through unsigned and unexplained orders is unprecedented, and undermines the Court’s legitimacy.

As Hubbell noted,

The secrecy of Supreme Court deliberations provided Roberts the aura of deniability. He could deflect criticism simply by asserting that the Supreme Court was reaching the right result and its critics were sore losers not gifted enough to see the invisible handwriting in the Constitution that always seemed to favor conservative outcomes.

Under Trump, Congress has been neutered. Under Roberts, the Supreme Court has been corrupted. We the People have thus lost the guardrails–the “checks and balances”–contemplated by the Constitution. Our remedy for Congressional inaction is obvious: the franchise. We need a major Blue Wave that will replace the GOP invertebrates unwilling to do their jobs.

Fixing the Court is more complicated, but it can be done. As Hubbell writes,

John Roberts and the reactionary majority bent or invented rules to advance a racist, anti-democratic, anti-voter, anti-women, anti-LGBTQ, anti-free speech, pro-business, and pro-gun agenda. Democrats must be bold and courageous enough to bend or invent rules to promote an anti-racist, pro-democracy, pro-voter, pro-personal liberty, pro-free speech, pro-consumer, and pro-gun safety agenda.

Lawyers and the legal academy are considering a number of reforms, including term or age limits for Justices and expansion of the Court, among others. I have my opinions, and others have theirs, but there is no longer a case to be made for inaction. The Roberts Court has now exceeded the infamy of the Taney Court, which triggered the Civil War with the Dred Scott decision.

Granted, Roberts couldn’t accomplish the corruption of the high Court without the help of the other five “conservative” ideologues. It’s past time for a housecleaning.

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Vice, Virtue And The Bill Of Rights

A couple of weeks ago, I stumbled upon the website of an organization called “The Bill of Rights Institute.” I know absolutely nothing about this particular venture, but I was intrigued by the site’s emphasis on the importance of civic virtues, and the insistence that those virtues are essential safeguards for the liberties protected by the Bill of Rights.

On a page identifying those virtues and their opposing vices, the Institute argues that maintenance of our constitutional form of government requires citizens who are “vigilant, informed, and virtuous.” Such citizens are necessary in order to maintain  governing institutions that “are directed towards their right ends.”

And what are those virtues and vices? An accompanying chart lists them.

  • Courage is defined as the ability to take constructive action in the face of fear or danger, and to stand firm “as a person of character”–to do what is right “especially when it is unpopular or puts one at risk.” The opposing vice is Cowardice, the failure to take constructive action due to fear or danger.
  • Honor requires good character and a demonstrable trustworthiness, while Dishonor is displayed by failure to demonstrate integrity, and by deceptive behaviors.
  • Humility is a “recognition that one’s ignorance is far greater than one’s knowledge.” It requires putting others ahead of oneself. Humility requires a willingness to give others credit when credit is due, and to forthrightly admit our mistakes and errors. It’s opposite is Hubris –excessive pride, vanity, and arrogance.
  • Integrity requires us to be truthful and to keep our promises, while Self-deception allows us to act on the basis of beliefs that are false and/or self-serving, especially beliefs that “endanger the humanity of others and movements that are unjust.”
  • Justice requires us to uphold what is fair, to respect the rights and dignity of all people (even the ones who are different from us!). A just political order “protects the rights of all equally and treats everyone equally under the law.” Injustice harms other people (and ultimately society) with the application of unequal rules.
  • Moderation is the avoidance of excess or extremes, while Immoderation/Extremism is to lack restraint.
  • Prudence is “practical wisdom that applies reason and other virtues to discern right courses of action” while Imprudence is lack of wisdom– acting without understanding or caring for consequences.
  • Respect is regard for–and defense of– the equal rights and inherent dignity of all people, while Contempt manifests itself in “disregard, disdain, or lack of consideration for someone or something” worthy of admiration.
  • Responsibility is defined by acting on the basis of good judgment about what is right or wrong even when it is not popular. To be responsible is to be vigilant to preserve one’s own liberty and that of others. Irresponsibility is activities undertaken on the basis of poor judgment.

Look at that list and weep. Donald Trump and those in his administration lack every single virtue–and exemplify every single vice– identified.

Courage, honor, humility, integrity, justice, moderation, prudence, respect, responsibility–not a single one of those virtues can be seen in the actions of this incredibly corrupt administration. Indeed, in addition to monumental incompetence, this President and the members of his cabinet display virtually all of the identified vices. And thanks to the vice of cowardice, elected Republicans –some of whom might have embraced a few virtues in a different era– are equally devoid of admirable characteristics. Especially courage.

As I noted earlier, I don’t know anything about the Bill of Rights Institute, but I absolutely endorse their emphasis on the necessity of the enumerated civic virtues to the maintenance of our (once) democratic republic.

America’s history should not be whitewashed. We have frequently fallen short of the civic goals and governing philosophy embedded in the Declaration, the Constitution and Bill of Rights. But we have also honored the men and women who exemplified the civic virtues identified above–the civic leaders and elected officials who worked for justice and served with integrity and prudence, who have insisted on honoring America’s professed values and working for the common good.

The extent of the damage that has been done in just over a year is breathtaking, and our ability to restore a government worth our allegiance is by no means certain. The upcoming midterm elections will provide a test.

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