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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October is the Gayest Month

October 11th is Coming Out Day; October is also the month chosen for IUPUI’s Harvey Milk Dinner–an event sponsored by the university’s GLBT faculty and staff to bring “friends and family” together, to remember where the struggle for gay rights has been, and to remind us all that the fat lady hasn’t sung and the fight isn’t over. This was the fourth year of the event;  I’ve been honored to emcee last two. This year, 275 people attended, including a significant percentage of the campus administration, from the Chancellor on down.

As I looked over the crowd, I couldn’t help wondering what Harvey Milk would think if he were still alive to see what he and a few other brave pioneers had wrought.

Harvey Milk was the first openly gay person elected to public office in California (and probably, in the U.S.). Born in New York in 1930, Milk moved to San Francisco in 1972, a time when there was a significant migration of gay men to the city’s Castro District. Once there, he became politically active.

Milk ran losing campaigns for political office three times before being elected. But he was by all accounts charismatic, and he ran what have been called “highly theatrical” campaigns. He finally won a seat as a city supervisor (what most places call city councilors) in 1977.  He had served barely 11 months in office when he and Mayor George Moscone were murdered by Dan White.

Eleven months is a pretty short career.  But Milk had started something and that something has snowballed. Since his death, relatives have established a foundation in his name, he was posthumously awarded the Presidential Medal of Freedom, and the Post Office has just announced the issuance of a Harvey Milk postage stamp.

Why did Milk have such an impact? Why did a brief 11-month stint in a relatively low-level office leave such a legacy?

I can only speculate, but I think most Americans—at least, those not deeply invested in hate and homophobia—respond to obvious injustice when they can’t avoid confronting it. What Harvey Milk did—and what every single gay person who has had the courage to come out has done—is insist on visibility.

I first recognized the importance of visibility several years ago, when I was the Executive Director of Indiana’s ACLU.  We wanted to give one of our annual awards to the West Lafayette City Council for adding sexual orientation to their Human Rights Ordinance’s list of protected categories. (They were the first in the state to do so.) Since awards from the ACLU can be a mixed blessing to elected officials, I called the clerk to see whether the councilors would accept the honor. She turned out to be a chatty soul, and confided that when the amendment was first offered, she thought it was silly. No one was discriminating against gay people—at least, not that she was aware.

Then there were public hearings on the proposed amendment, and the church buses rolled. People came out of the woodwork to oppose the measure, and their behavior was anything but Christian. She was appalled. As she said, “I’d had no idea! Those people showed me how wrong I  had been and how important the amendment really was.”

When you become visible,  it is no longer possible for the “good people” to ignore bigotry and injustice.

October is the month GLBT folks and those of us who count ourselves as allies remember that lesson.

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Now I Understand Why People Believe What They Hear on Fox News….

Ever wonder why people don’t recognize when “news” reports are blatantly, obviously incorrect, improbable or impossible? Or wonder why anyone in his right mind would vote for Michelle Bachmann or Louis Gohmert or Ted Cruz?

My working thesis is that folks who don’t know anything–who are hazy about history, have no clue about how government functions and have only the most tenuous connection to the Constitution–simply have no context within which to judge the reasonableness of assertions that more knowledgable people simply laugh at.

Recently, Bill Maher cited a study showing that fewer than 17% of incoming college freshmen knew what the Emancipation Proclamation was (he described the incoming class as “Basically, golden retrievers with smartphones”). Unfortunately, we have a lot of studies that conclude we don’t know anything.  And the hits keep coming.

As if we needed even more evidence of Americans’ abysmal lack of knowledge, here are the results of yet another survey I stumbled across:

1. Only 45% of Americans were able to correctly identify what the initials in GOP stood for: Grand Old Party. Other popular guesses were Government of the People and God’s Own Party. Republicans obviously scored much better than Democrats did on this answer.  [source]

2. 55% of Americans believe that Christianity was written into the Constitution and that the founding fathers wanted One Nation Under Jesus. This includes 75% of Republicans and Evangelicals. [source]

3. Although a “relatively” high 40% of people were able to name all three of the United States branches of government — executive, legislative and judicial — a far lower percentage knew the length of a Senator’s term. Just 25% responded that a Senator’s term stretches for six years. Even fewer, 20%, knew how many Senators there were.  [source]

4. Americans are known to pick recent heads of state as among the best president in history, which is why Clinton and Reagan regularly rank higher than Lincoln, FDR and Washington. However, Hoover used to routinely top polls of the worst, but today, just 43% of Americans know who he was, according to statistics from the University of Pennsylvania. [source]

5. When asked on what year 9/11 took place, 30% of Americans were unable to answer the question correctly, even as few as five years after the attack. This was according to a Washington Post poll conducted in 2006. . [source]

6. It’s not shocking that 80% of Americans believe that there is life out there somewhere, because it’s hard to look at a vast universe and think we’re completely alone. But 1 in 5 allege that an alien life form has abducted a friend or family member of theirs. Based on population estimates of around 300 million, that means that a terrifying number of people believe they have been probed. [source]

7. When looking at a map of the world, young Americans had a difficult time correctly identifying Iraq (1 in 7) and Afghanistan (17%). This isn’t that surprising, but only a slim majority (51%) knew where New York was. According to Forbes and National Geographic, an alarming 29% couldn’t point to the Pacific Ocean. [source]

8. 25% of Americans were unable to identify the country from which America gained its independence. Although 19% stated that they were unsure, Gallup findings indicated that others offered answers varying from France to China. Older folks scored much better than young people on this question, as a third of those 18-29 were unable to come up with the correct answer. [source]

9. Despite being a constant fixture in school curricula, 30% of Americans didn’t know what the Holocaust was.  [source]

10. Even though we are a predominantly Christian country, only half of Americans knew that Judaism came before Christianity, because the words “Old Testament” are apparently very confusing in that regard. [source]

11. A surprisingly high percentage of Americans, 20%, believe that the Sun revolves around the Earth, instead of the opposite, aka the correct answer. This is despite the fact that centuries of science have consistently proved otherwise. [source]

12. In 2011, Newsweek found that 29% of Americans were unable to correctly identify the current Vice President, Joe Biden, when asked to take a simple citizenship test. Although a relatively low 6% didn’t know when Independence Day was, a much, much higher percentage (73%) had no idea why we fought the Cold War. [source]

13. According to most polls, Americans didn’t know that Obamacare was scheduled to go into effect. Kaiser puts the number at 64%, whereas others say as few as 1 in 8. [source]

14. 2006 AP polls showed that a majority of Americans were unable to name more than one of the protections guaranteed in the first Amendment of the Constitution — which include speech, assembly, religion, press and “redress of grievance.” Just 1 in 1000 could name all of these five freedoms. However, 22% were able to come up with the name of every member of the Simpson family. [source] TC mark

And we wonder why we elect buffoons to high office.

Just kill me now.

 

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We Don’t Need No Stinkin’ Government

I really shouldn’t read the Letters to the Editor.

A couple of days ago, I read one from a woman who applauded the government shutdown, because we don’t need all these ridiculous regulations of our foods, our businesses and our local governments.

It’s a familiar theme.

Later that day, we stopped for gas, and my husband noted that the gas pumps had a sticker denoting the date they were last inspected. “If the shutdown goes on much longer,” he said, “those pumps won’t get their next inspection. I wonder how long it will be before consumers get shorted–before the pump says one gallon but dispenses a bit less than that. It only takes turning a couple of screws.”

My more libertarian friends will undoubtedly respond that if that happened, eventually people would catch on and that station would go out of business. Maybe–after a lot of people paid for more gas than they received. Or maybe not, since people stopping at stations on highway interchanges or in unfamiliar neighborhoods are unlikely to be “in the loop” of local gossip.

Gas stations aside, I’d suggest that if the clueless author of that letter prefers not to die of botulism (I hear that’s pretty unpleasant), she should welcome those intrusive FDA food inspections. I might remind her that people working for government didn’t just wake up one day and decide–hey, wouldn’t it be fun to go inspect those pork chops!? A lot of people got sick and died, and a lot of other people demanded that government–the folks who work for us–do something about it.

Look–it is perfectly reasonable to keep an eye on government to ensure that it isn’t getting into areas it shouldn’t, or conducting itself in a less than businesslike fashion, or playing favorites. It isn’t reasonable–in fact, it’s a sign of terminal stupidity–to suggest that we really don’t need no stinkin’ government.

I have news for all these anti-government ideologues. Most Americans no longer go out to the back yard and strangle a chicken for dinner. We no longer live miles from our nearest neighbor, so we can’t just throw our garbage out back for the animals to eat. The days of settling our disputes via duels is long past. And in case you hadn’t noticed, women and minorities are no longer willing to meekly abide by a bunch of rules made by white guys to privilege white guys.

The world has changed.

Today’s America is densely populated and interdependent, and individuals have neither the time nor–god knows–the expertise to test our food for contamination, review the business practices of our merchants’ and bankers and candlestickmakers, put out  fires in our neighborhoods and saddle up with the posse when a bad guy robs the local liquor store. We have things called airplanes now, and they need to be inspected; we have cars and they need roads to drive on and rules to regulate their use.

For these and a zillion other reasons, we need government.

Get over it.

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