Category Archives: Constitution

Who’s An Originalist?

I see where Justice Scalia has been claiming to be the Court’s one true originalist again.

“Originalism” is one of those words that gets thrown around a lot–mostly by people who (unlike Scalia) don’t understand how law works, or how “original intent” actually operates to guide today’s judges.

When I ask students who profess to be originalists to define the term, the answers generally   come down to a desire for constitutional fidelity–an admirable desire and one that I certainly share.  The devil, as usual, is in the details. What, exactly, do we mean by fidelity to the Founder’s original intent?

If originalism meant–as some insist–that courts must read the constitutional text through the eyes of the Founders as those gentlemen saw their world in 1786, the Constitution would have outlived its usefulness many years ago. Such assertions betray a lack of understanding about what constitutions are, and how they function.

Constitutions aren’t statutes prescribing or proscribing specific actions; they are broad frameworks of values, statements of important principles to which statutes, ordinances and government actions must conform.

I sometimes ask my students what James Madison thought about porn on the internet. Those who actually know who James Madison was (a subject I have dealt with elsewhere) will laugh; obviously, whatever Madison may or may not have thought about pornography, he didn’t anticipate the invention of broadcast media, let alone the internet. But Madison (and Jefferson and Hamilton and all the rest) did think about the importance of free expression, about the individual’s right to access information and exchange ideas without fear of government censorship.

Madison and the other Founders intended to privilege and protect the principle of free speech. Fidelity to that original intent requires contemporary judges to protect free expression in situations the Founders could never have imagined. That’s what is meant by legal scholars who talk about the “living constitution”–fidelity to the values protected by our Constitution and Bill of Rights and their consistent application to new “facts on the ground.”

We can agree or disagree about whether a given decision is faithful to the principle or value that the Founders were trying to protect, but we need to recognize that social change necessarily requires the application of the Constitution and Bill of Rights to a constantly evolving civic landscape.

When someone like Justice Scalia pontificates that judges have “the power to say what the law is, not the power to change it,” he is selling snake-oil. Every decision that applies settled legal principles to a new set of facts “changes” law, if only incrementally. That is how the common-law system works, and Scalia is smart enough to know that–and smart enough to know that most Americans don’t. His “originalism” allows him to pretend that his favored ideology is really principle; that he is only a sort of legal automaton looking at the world through the Founders’ eyes.

Over at Dispatches from the Culture Wars, Ed Brayton recently said it best:

“Scalia is neither a faint-hearted or stout-hearted originalist. He is a convenient originalist. He’s an originalist when it leads to the result he wants and he’s not an originalist when it doesn’t. His ruling in Raich is a perfect example. And he’s perfectly happy contradicting himself to reach the result he prefers. Just compare his ruling in Raich to his ruling in the challenge to the Affordable Care Act last year. In Raich he agreed that the interstate commerce clause gave Congress the power to regulate the growth of marijuana for personal use — an action that is neither interstate nor commerce — despite that being legal under state law. In the ACA case he argued that the interstate commerce clause did not give Congress the power to regulate the health insurance market, which is, by any definition, a matter of interstate commerce. Ironically, Scalia is exactly what he has for decades accused liberals of being, a results-oriented judge.”

Indeed. And intellectually dishonest about it, to boot.

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Talking the Talk, Avoiding the Walk

Tea Party types love to talk about the Constitution. Evidently, the only thing they like more is evading its requirements.

George W. Bush showed the way. With his aggressive use of signing statements, he avoided that pesky “veto override” problem. (Recall the tactic: he would sign a bill he didn’t like, rather than vetoing it, but he’d issue a signing statement to the effect that he wouldn’t enforce the law if he didn’t feel like doing so. That “veto by another name” avoided an override vote by Congress.  Mission–i.e., end run around the Constitution– accomplished!)

Today’s Congressional zealots are doing George one better. As Robert Reich recently pointed out,

The Constitution of the United States does not allow a majority of the House of Representatives to repeal the law of the land by de-funding it (and threatening to close the entire government, or default on the nation’s full faith and credit, if the Senate and the President don’t come around).

If that were permissible, no law on the books would be safe. A majority of the House could get rid of unemployment insurance, federal aid to education, Social Security, Medicare, or any other law they didn’t like merely by deciding not to fund them.

Like it or hate it, the Affordable Care Act was passed into law by affirmative votes of both Houses of Congress. It was signed (without the crossed fingers of a Signing Statement) by the President, who subsequently ran for re-election on a record that prominently included it and who handily won. Its constitutionality has been upheld by the Supreme Court.  There are not nearly enough votes to repeal it using the proper process.

But none of that matters to the arrogant ideologues who want to circumvent the Constitution they claim to revere by failing to fund the law of the land.

The truth of the matter is, the only Constitutional provision they really care about is (their version of) the Second Amendment.

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History, Cut to Fit

I have often used this blog to complain that Americans know very little about our country’s history and governing structures–not to mention science and economics. A couple of days ago, a friend shared an exchange that once again underscored the point.

One of my friend’s high-school classmates had responded to a Facebook post in which he had saluted Lilly Company’s support for Freedom Indiana, the group formed to fight the effort to constitutionalize Indiana’s existing ban on same-sex marriage. The classmate wrote:
 ”The Constitution is inscribed to articulate inalienable rights we already have by virtue of the Creator. It is not an instrument whereby we are given grant ourselves wishes, no matter how well-intentioned they may be; no matter how noble they may sound.”
Grammatical errors aside, this construction pretty much stands history on its head. As my friend responded:
“What you’re describing here is a theocracy. Because we live in a nation with people of many faiths and people with none, I’m glad we don’t govern ourselves that way. Also, the term “inalienable rights” is from the Declaration of Independence, not the U.S. Constitution. There is no mention of God, Creator, etc. in the U.S. Constitution or the Bill of Rights (except to say “the year of our Lord” near the signatures). Even if you want to talk “inalienable rights” with regard to HJR-6 in Indiana, two of those articulated in the Declaration of Independence are “liberty” and “the pursuit of happiness.” I would suggest that by banning marriage for a subset of our fellow citizens, HJR-6 tramps on both of those “inalienable rights.”
My friend shared this exchange as confirmation that our concerns about widespread civic ignorance are valid. It certainly provides anecdotal confirmation of that concern. But it also raises some disquieting questions.
Would his high-school classmate see the world differently if he understood the history of America’s constituent documents? If he were familiar with Enlightenment philosophy, the writings of Hobbes and John Locke, the separationist beliefs of early religious figures like John Leland or Roger Williams? Or would he stubbornly “cherry pick” history and philosophy to make them conform to his own worldview? After all, it is enormously tempting to sift through biblical and constitutional texts to find support for our own prejudices, and right wing religious literalists aren’t the only people who do so.
Would we be able to communicate with each other more effectively if we shared a common understanding of the system we inherited–if we occupied the same reality? Or are we all so emotionally invested in our personal belief systems that we lack the openness required for genuine communication?
I have used my columns and blog to hammer at the importance of civic literacy, and I have warned of the dangers posed by our “civic deficit.” The establishment of a Center for Civic Literacy at IUPUI was based upon a belief that better civic education will provide us with a common language that will facilitate better communication, that better communication will lead to better policymaking, and that a common understanding of our roots will help ameliorate our toxic politics.
This exchange  between my civically savvy friend and his old high-school classmate reminded me that my premise could well be wrong. It may be that our very human desire to confirm our prejudices– and to deny inconvenient facts that are inconsistent with those prejudices–will always trump evidence contrary to our preferred realities.
Does education matter? Does it make a difference? We have to hope so.
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Singing an Old Familiar Song

Yesterday, I participated in the ACLU of Indiana’s much-lauded “First Wednesday” series. I was on a panel titled “The Constitution: Peruse It or Lose It.”   The program was introduced by ACLU Executive Director Jane Henegar; the moderator was local businessman and owner of the IBJ, Mickey Maurer; the two other panelists were Michael Gordon, who teaches government at Munster High School, and State Senator Brant Hershmann.

Michael Gordon was superb. If we could clone this guy and put a clone in every high school government class, we might beat this civic deficit problem. And this event may have marked the first time I’ve ever agreed with Sen. Hershmann (who opposes any and all gun regulations, and sponsored the ban on same-sex marriage, among other things).

The format was informal, with Mickey goading the panelists (and making an effort to promote fireworks–an effort that failed). Although there were no scripts, we each were allowed a brief opening statement, and I thought I’d share mine.

I know this will seem all too familiar to regular readers, but really–it can’t be said too often!

Only 36% of Americans know we have three branches of government. Why does that freak me out?  Why is civic literacy important?

 This is a country where, increasingly, people read different books and newspapers, visit different blogs, watch different television programs, attend different churches and even speak different languages—where the information and beliefs we all share are diminishing and our variety and diversity are growing. Our constitutional values, our history and governing philosophy are ultimately all that Americans have in common.

 Like all human enterprises, governments have their ups and downs. In the United States, however, the consequences of the “down” periods are potentially more serious than in more homogeneous nations, because this is a country based upon what Todd Gitlin has called a covenant. Americans don’t share a single ethnicity, religion or race. (Culture warriors to the contrary, we never have.) We don’t share a comprehensive worldview. What we do share is a set of values, and when we don’t know what those values are or where they came from, we lose a critical part of what it is that makes us Americans.

 At the end of the day, our public policies must be aligned with and supportive of our most fundamental values; the people we elect must demonstrate that they understand, respect and live up to those values; and the electorate has to be sufficiently knowledgeable about those values to hold public officials accountable. We can’t do that if we don’t know what those values are or where they came from.

 In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and they aren’t all equal. When we argue from within the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds and learn how to bridge our differences. When those arguments are between people trying to rewrite history and citizens who don’t know better, we undermine our political institutions and erode social trust.

 At our new Center for Civic Literacy at IUPUI, we intend to research a large number of unanswered questions. What, for example, do citizens need to know? Why have previous efforts to improve civics instruction lacked staying power?  How is civic ignorance implicated in our currently toxic politics?

 At the end of the day, it doesn’t matter if I think the Establishment Clause requires a certain result and you think it requires a different one. What matters is that we both know what the Establishment Clause is, and what value it was meant to protect. It doesn’t matter whether I think Freedom of the Press extends to bloggers and you disagree. It matters a lot that we both know what Freedom of the Press means, and why it was considered essential to the maintenance of trustworthy government.

 Daniel Patrick Moynihan famously said we are all entitled to our own opinions, but not to our own facts. If I think this is a table and you think it’s a chair, we aren’t going to have a very productive discussion about its use. We don’t need citizens who all agree about the implications of our founding decisions, or who even agree with the decisions themselves.

But we desperately need citizens who share an understanding of what those decisions were.

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Democracy and Liberty Continued…

Indiana’s very “Christian” Governor has come out (no pun intended) in favor of letting Hoosiers vote on whether the state should recognize same-sex marriages. He has also disclaimed any intent to discriminate–why bless my grits, honey, he’s all in favor of people choosing their own lifestyles! Surely it can’t be discriminatory to deny civil recognition to non-biblical unions, even if that recognition does carry with it 1030+ rights and privileges.

After all, what’s a little tax inequity among friends?

As a member of Indiana’s legislature assured me the last time I testified against HJR 6 or whatever the number was–there is absolutely no discrimination involved here. The same marriage laws apply to straight and gay people–they can all marry people of the opposite sex.

And rich and poor people alike are prohibited from sleeping under bridges.

The problem with voting on a constitutional amendment that would deny certain people rights that our laws deem to be fundamental is that–in our system, under our Constitution–rights are not subject to the whims of the majority. That’s why they are rights, rather than privileges. No one said it better than Justice Jackson, in West Virginia Board of Education v. Barnette. In my all-time favorite Supreme Court quote, Jackson wrote

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein..The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Presumably, Governor Pence and Brian Bosma both slept through Constitutional Law. Although I have a sneaking suspicion that they might suddenly remember this principle if they faced mean-spirited, politically-motivated efforts to vote on their fundamental rights.

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