Now Let’s Talk About “Originalism”

Yesterday, I considered the political food fight being waged over the nomination of a Justice to replace Scalia. Today, I want to consider Scalia’s much-ballyhoo’d judicial philosophy.

During his long tenure on the Court, there has been a great deal of attention paid to Scalia’s claim that he was a true–if “faint-hearted” (his description)– constitutional “originalist.” It is a claim uncritically accepted by political conservatives, but one that has been thoroughly debunked by both conservative and liberal legal scholars.

In 2012, the widely admired, brilliant, and very conservative Judge Richard Posner— the most cited legal scholar of this generation— deconstructed Scalia’s purported originalism in the New Republic. Posner’s review of a book about judicial philosophy co-authored by Scalia was an “emperor has no clothes” moment, and I urge anyone who values careful analysis to click through and read the whole thing. But I especially want to call attention to the following paragraph:

Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law”…. Blackstone adds that “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

That last sentence, explaining that the true meaning of a law is to be determined by “considering the reason and spirit of it” is crucial. It is the root of the only practical approach to original intent. It requires judges to analyze the Constitution and the Bill of Rights in order to understand the values the Founders were attempting to protect, and to apply the law in a way that is faithful to those values–and to do so in situations that are highly unlikely to have been within the contemplation of those who drafted the Constitution.

The question, as I tell my students, is not: what did James Madison think about porn on the internet? Obviously, none of the Founders ever contemplated the internet. But they did contemplate–and quite clearly disapproved of–government efforts to censor expression.

The proper question, then, is: how do we apply the Founders’ judgment about the importance–the inestimable value— of free expression to “facts on the ground” they could never have imagined?

That process–discerning the principles that animated the Bill of Rights and applying those principles in new and unanticipated situations in order to protect the liberties the Founders  wanted to safeguard—is what is meant by a “living” Constitution.

Antonin Scalia was a brilliant man who used his brilliance to dissemble, to pretend (probably even to himself) that he was following a principled methodology that just happened to produce results consistent with his own political preferences and religious beliefs.

Posner is equally brilliant, and equally conservative–but far more intellectually honest.

Comments

An Elastic View of Constitutional Responsibility

Okay–This week, it seems appropriate to talk about the late Justice Scalia, the battle over his replacement, and his much touted (albeit misunderstood and selectively applied) “originalism.”

Today, let’s consider where we are in the process for replacing Scalia.

Republicans in the Senate–notably McConnell and Grassley, who heads up the Judiciary Committee–have said they will refuse to participate in the Constitutionally-described process of “advice and consent.” Their argument, apparently, is that because this is an election year, and the President is in the last year of his tenure, he shouldn’t nominate a successor.

Between 1796 and 1988, at least 14 Justices have been confirmed during election years.

According to legal historians, Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the individual who’d been nominated—that is, just to obstruct the sitting President.

As a post from the Brookings Institution put it: the Republicans’ behavior is a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term.

And I thought they claimed to be “strict constructionists”!

The bottom line is that there is simply no precedent for the Senate refusing to discharge its constitutional duty to advise and consent, and if I had to guess, I would predict that McConnell et al will back away from that refusal once they recognize the extent of the political risk involved. (Of course, I’ve been wrong before when I have predicted rational behaviors from crazed partisans…)

Tomorrow, a decidedly critical consideration of Scalia’s controversial jurisprudential legacy…..

Comments

Privatizing Libraries

What with the wild and weird Presidential campaign, and the focus on the Supreme Court in the wake of Scalia’s death, there’s much discussion about the operation of the federal government. But Americans have really been engaged in a much longer debate–largely uninformed–over the role of government in general.

And that debate has “evolved;” a recent column from the LA Times brought me up short. It began:

The list of responsibilities that a local government must shoulder isn’t an especially long one. Typically it includes keeping the streets paved and the streetlights lit, maintaining adequate police and fire services, inspecting buildings, sometimes providing water. One hallmark of almost every local jurisdiction is the free public library.

So the proposal before the Kern County supervisors to turn over the county library system to a private company operating out of suburban Maryland marks a major step. If you’re looking for a sign that local political leaders are intent on giving up all pretense of working for the public interest, look no further.

As the columnist points out, the proposal to privatize the library system is part and parcel of the long slide in spending on public infrastructure, the result of viewing the public budget as an expense rather than an investment. The Kern County supervisors are choosing between turning the library over to a private, for-profit company, or imposing a sales tax increase of one-eighth of a cent to fund the libraries.

How, one might ask, does a company make a profit operating a library? According to the story, LSSI, the company in question, cuts down the number of employees, “squeezes” those who remain, and replaces existing pensions with cheaper 401K plans. Even then, the proposal defies logic.

Chronic underfunding and repeated budget cuts have allowed the Kern County libraries to deteriorate physically, while the county spends money instead on an 822-bed expansion of its jail. Library employees are among the lowest paid public workers in Kern County, the advocacy group says.

Turning management over to a firm that will add its own profits to all the other expenses incurred by a library system doesn’t seem on the surface to be a path to improved library services. The money will still have to be found to improve and maintain the physical plant, acquire books and magazines, and upgrade the system’s electronic access.

Something more fundamental is lost when a system such as libraries becomes privatized. The sense that government exists in part to provide infrastructure and services that should be immune from the influence of private interests.

Free public libraries create and nurture community. They cannot be replaced by bookstores (as former Mayor Goldsmith once advocated) or other for-profit ventures. Their importance in the age of the internet has actually grown, as they have moderated the digital divide and curated essential access to credible information.

Government isn’t a business. It exists to provide public goods– services that the private sector cannot and will not provide. When we starve and diminish it, we lose that which makes us a community–an “us”–rather than an assortment of winners and losers who simply occupy a common geography.

Privatized libraries are a step too far. Far too far.

Comments

Despicable

If this is true, it is beyond despicable. Per Talking Points Memo:

An Iranian official said “Republican rivals of the current US administration” attempted to stall last month’s Iranian-U.S. prisoner swap until the eve of the U.S. presidential election, Tasnim News Agency reported.

According to the semi-official Iranian news outlet, Ali Shamkhani, the secretary of Iran’s Supreme National Security Council, made the claims during a speech Thursday at a rally in Yazd, Iran.

“In the course of the talks for exchanging prisoners, the Republican rivals of the current US administration who claim to be humanitarians and advocates of human rights sent a message telling us not to release these people [American prisoners] and continue this process [of talks] until the eve of US presidential elections,” Shamkhani said, according to Tasnim.

“We acted upon our independent resolve and moved the process forward,” Shamkhani said.

Representatives of the party that constantly proclaims its Christianity and superior morality, the party whose Presidential contenders are constantly beating their chests and bragging about being strong enough to protect America and its citizens, were evidently willing to forgo honor and patriotism–not to mention basic humanity– in pursuit of partisan electoral advantage.

This claim by the Iranians is believable because it is so consistent with the behavior of Congressional Republicans ever since Barack Obama entered the White House. Absolutely nothing has mattered to the GOP except obstructing and diminishing this President–certainly not the health or safety or best interests of the American public  (as we are seeing in the wake of Scalia’s death, they are even refusing to discharge their constitutional duty to vote on a successor). But even for the sleaziest among them, a willingness to leave four American citizens in Iranian prisons for many months more than necessary in order to score political points is almost beyond comprehension.

Evidently, the ascendance of Donald Trump and Ted Cruz is not an anomaly. Appalling as they are, they really do represent today’s GOP.

As I recently wrote elsewhere, Trump, especially, is what happens when politics becomes just another team sport–when campaigns are only about winning, whatever the cost in integrity.

When your sole political ambition is to win, when the only criterion for acceptable behavior is that it gives your “team” an advantage, is it any wonder that your party’s base chooses a self-described “winner”? When you have created a political culture that sneers at nuance and paints every policy dispute as a stark contest between “makers” and “takers,” is it any wonder that your voters see wealth as evidence of superiority? When you have countered even the mildest criticism of U.S. policy with exaltations of “American exceptionalism,” is it any wonder that your base embraces a xenophobic blowhard?

Trump truly is the id of today’s GOP.

Comments

The Real Obscenity

If your definition of “obscenity” is sexual, you can stop reading now.

Lockheed Martin recently held a conference for Defense contractors, at which they shared the “good news” about global conflicts.

Lockheed Martin Executive Vice President Bruce Tanner told the conference his company will see “indirect benefits” from the war in Syria, citing the Turkish military’s recent decision to shoot down a Russian warplane.

Executives of OshKosh and Raytheon reported equally positive business prospects, noting “significant upticks” for sales of military equipment due to ISIS and unrest across the Middle East.

The last bit of good news for the contractors is the latest budget deal in Congress. After years of cuts following the budget sequester, the deal authorizes $607 billion in defense spending, just $5 billion down from the Pentagon’s request, which DefenseNews called a “treat” for the industry.

America’s infrastructure—our roads, bridges, electrical grid, water utilities, rail—is dangerously deteriorated. Our cities are struggling to hire sufficient police. Our schools lack supplies, our teachers are underpaid, and we can’t find the money for universal kindergarten, let alone day care. We have nothing that can compare to Europe’s public transportation systems, or China’s high-speed rail. Our right-wing lawmakers are furious that we are finally making basic medical care accessible, and they insist we cannot afford to continue social security and other social safety net programs at current levels.

But we can evidently afford to spend more than the rest of the world combined for defense, and the military-industrial complex about which Eisenhower warned us. We seem able to find billions for the armaments that keep defense contractors fat and happy, while we starve the “homeland” and citizens we are supposedly protecting.

That’s my definition of obscene.

We talk a lot about the growth of American inequality, and the focus of those conversations is usually on income–wage stagnation, the incredibly bloated salaries paid to Wall Street “movers and shakers,” a tax system that allows mega-millionaires to avoid paying their fair shares.

All of those issues are important. But in a properly functioning society, where all taxpayers do pay their fair share, government is responsible for using that tax money to provide a physical and social infrastructure serving all its citizens, rich or poor.

We recognize third-world countries by inequalities of infrastructure; they are places where the wealthy hire their own police or bodyguards, live in gated compounds where they pave the streets and landscape parks for their own use, while segregating themselves from the wretched surroundings inhabited by the less fortunate. Those countries often support and valorize highly privileged military establishments.

If, as most knowledgable observers claim, the threats America faces are significantly different than in the past—if those threats come primarily from non-state terrorists—we need fewer tanks and bombs and missiles, and more targeted and surgical strategies.

We can defend the legitimate interests of the United States without unnecessarily enriching the military-industrial complex, and without maintaining the current bloated and obscenely expensive defense establishment.

Comments