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2008 Section 6: Theories of Interpretation Institute of Bill of Rights Law at the William & Mary Law School
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Copyright c 2008 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview VI. THEORIES OF INTERPRETATION
In This Section:
LOOKING BACK: DISRICT OF COLUMBIA V. HELLER
"In Defense of Looseness" p. 417 Richard A. Posner
"History's Lessons on Gun Rights" p. 424 Lyle Denniston
"Justices, Ruling 5-4, Endorse Personal Right to Own Gun" p. 427 Linda Greenhouse
"Supreme Court Finds History Is a Matter of Opinions" p. 430 David Savage
"What Did the Framers Have in Mind?" p. 433 Stanley Fish
"News Flash: The Constitution Means What It Says" p. 435 Randy E. Barnett
"A Liberal Case for the Individual Right to Own Guns Helps Sway the Federal Judiciary" p. 437 Adam Liptak
JUSTICE SCALIA 'S A MATTER OF INTERPRETATION
"Judge Dread" p. 440 David Franklin
"Courtroom Arguments" p. 443 John 0. McGinnis
JUSTICE BREYER'S ACTIVE LIBERTY
"Consent of the Governed" p. 445 Kathleen Sullivan
"Active Liberty: A Progressive Alternative to Textualism and Originalism?" p. 448 Michael W. McConnell
"How Should Judges Judge?" p. 452 Bernard G. Prusak
415 "The Philosopher-Justice" p. 458 Cass R. Sunstein
COMMENTARY ON THEORIES OF INTERPRETATION
"Justice Grover Versus Justice Oscar: Scalia and Breyer Sell Very Different Constitutional Worldviews" p. 464 Dahlia Lithwick
"Alive and Kicking: Why No One Truly Believes in a Dead Constitution" p. 467 Jack Balkin
"Rethinking Originalism: Original Intent for Liberals (and for Conservatives and Moderates, too)" p. 471 Akhil Reed Amar
"In Praise of Judicial Modesty" p. 474 Stuart Taylor
416 LOOKING BACK: DISTRICT OF COLUMBIA V. HELLER
"In Defense of Looseness"
The New Republic August 27, 2008 Richard A. Posner
At the end of June, the Supreme Court, in a unarmed militia is an oxymoron. case called District of Columbia v. Heller, invalidated the District's ban on the private Politically conscious Americans in the late ownership of pistols. It did so in the name of eighteenth century feared standing armies, the Second Amendment to the Constitution. having fought the British army in the The decision was the most noteworthy of the Revolution, and feared centralized Court's recent term. It is questionable in government (as in Britain); and on both both method and result, and it is evidence counts they wanted to make sure that the that the Supreme Court, in deciding states would be allowed to have armed constitutional cases, exercises a militias. The federal government could freewheeling discretion strongly flavored regulate them but not disarm them. The fear with ideology. was that in the absence of such a provision in the Bill of Rights, the provision in Article The majority opinion, by Justice Antonin I of the Constitution authorizing Congress to Scalia, concluded that the original, and organize, arm, discipline, and call into therefore the authoritative, meaning of the service "the Militia" (a term that embraces Second Amendment is that Americans are the state militias, because the same entitled to possess pistols (and perhaps other provision reserves the right to train and weapons) for the defense of their homes. officer "the Militia" to the respective states) Scalia's entire analysis rests on this would enable Congress to disarm them. That interpretive method, which denies the fear surfaced in the debates over the legitimacy of flexible interpretation ratification of the original Constitution and designed to adapt the Constitution (so far as was, as Justice John Paul Stevens's the text permits) to current conditions. The dissenting opinion explains, the motivation irony is that the "originalist" method would for the Second Amendment. have yielded the opposite result. The text of the amendment, whether viewed The Second Amendment, part of the Bill of alone or in light of the concerns that Rights added to the original Constitution in actuated its adoption, creates no right to the 1791, states: "A well regulated Militia being private possession of guns for hunting or necessary to the security of a free State, the other sport, or for the defense of person or right of the people to keep and bear Arms, property. It is doubtful that the amendment shall not be infringed." In other words: since could even be thought to require that a militia, provided that it is well regulated, is members of state militias be allowed to keep a very good thing for a free state to have, the weapons in their homes, since that would federal government must not be allowed to reduce the militias' effectiveness. Suppose castrate it by forbidding the people of the part of a state's militia was engaged in United States to possess weapons. For then combat and needed additional weaponry. the militia would have no weapons, and an Would the militia's commander have to 417 collect the weapons from the homes of My analysis to this point has been militiamen who had not been mobilized, as "originalist"-and it has led to the opposite opposed to obtaining them from a storage conclusion from that of the majority of the facility? Since the purpose of the Second Supreme Court. It has been a narrow Amendment, judging from its language and originalism, like that of Scalia's majority background, was to assure the effectiveness opinion, because it has ignored the of state militias, an interpretation that interpretive conventions of the legal culture undermined their effectiveness by in which the Second Amendment was preventing states from making efficient drafted and ratified. The reigning theory of arrangements for the storage and distribution legislative interpretation in the eighteenth of military weapons would not make sense. century was loose (or flexible, or nonliteral) construction. This is explicit in William The Court evaded the issue in Heller by Blackstone's Commentaries on the Laws of cutting loose the Second Amendment from England, on which the majority opinion in any concern with state militias (the Heller ironically relies. In the Commentaries "National Guard," as they are now called). we read that a medieval law of Bologna The majority opinion acknowledges that stating that "whoever drew blood in the allowing people to keep guns in their homes streets should be punished with the utmost cannot help the militias, because modem severity" should not be interpreted to make military weapons are not appropriate for punishable a surgeon "who opened the vein home defense (most of them are too of a person that fell down in the street with a dangerous), and anyway the opinion says fit." Blackstone explained that "the fairest that the only weapons the Second and most rational method to interpret the Amendment entitles people to possess are will of the legislator, is by exploring his ones that are not "highly unusual in society intentions at the time when the law was at large." Modem military weapons are made, by signs the most natural and highly unusual in society at large. By probable. And these signs are either the creating a privilege to own guns of no words, the context, the subject matter, the interest to a militia, the Court decoupled the effects and consequence, or the spirit and amendment's two clauses. reason of the law. . . . As to the effects and consequence, the rule is, where words bear It justified this decoupling by arguing that either none, or a very absurd signification, if the word "people" in the expression "the literally understood, we must a little deviate right of the people to keep and bear Arms" from the received sense of them" (emphasis (the amendment's second clause) must added). John Marshall, the greatest Supreme encompass more than just militiamen, Court justice of the generation that wrote the because eighteenth-century militias enrolled Constitution and the Bill of Rights, was also only able-bodied free men-a mere subset a loose constructionist. of the people of the United States. But obviously the Framers did not mean to Originalism without the interpretive theory confer even a prima facie constitutional right that the Framers and the ratifiers of the to possess guns on slaves, criminals, Constitution expected the courts to use in lunatics, and children. The purpose of the construing constitutional provisions is faux first clause of the amendment, the militia originalism. True originalism licenses loose clause, is to narrow the right that the second construction. And loose construction is clause confers on the "people." especially appropriate for interpreting a
418 constitutional provision ratified more than again, an originalism stripped of the original two centuries ago, dealing with a subject understanding of how a constitutional that has been transformed in the intervening provision should be interpreted). Just as period by social and technological change, when the Supreme Court, in 1947 in including urbanization and a revolution in Adamson v. California, decided in the teeth warfare and weaponry. of the language of the Fourteenth Amendment that the amendment The Framers of the Bill of Rights could not "incorporates" the Bill of Rights, an exercise have been thinking of the crime problem in of judicial discretion is presented in Heller the large crime-ridden metropolises of as historically determined. The Bill of twenty-first-century America, and it is Rights was added to the original unlikely that they intended to freeze Constitution to limit federal power. One American government two centuries hence provision of the Bill of Rights forbids at their eighteenth-century level of government to deprive persons of life, understanding. Because of the difficulty of liberty, or property without due process of amending the Constitution, it has from the law. The Fourteenth Amendment contains beginning been loosely construed so as not an identical due process clause, but directed to become a straitjacket or a suicide pact. against state action. The Court in Adamson The older the constitutional provision and turned historical handsprings to interpret the the more the environment has changed since Fourteenth Amendment's due process clause enactment, the more appropriate is the as incorporating-that is, making applicable method of loose construction. to state action-most of the other provisions of the Bill of Rights. If Heller is applied to There are few more antiquated constitutional the states, it will be on the authority of provisions than the Second Amendment. For Adamson. example, the Framers and the ratifiers of the amendment probably did think that the right The true springs of the Heller decision must of militiamen to keep and bear arms entitled be sought elsewhere than in the majority's them to keep their weapons in their homes. declared commitment to originalism. The They were expected to provide the militia's idea behind the decision-it is not muskets rather than receive them from a articulated, of course, and perhaps not even weapons depot. Back then, moreover, guns consciously held-may simply be that required a lot of upkeep. Without constant turnabout is fair play. Liberal judges have care, they would rust and the powder would used loose construction to expand become moist. Storing the guns at a constitutional prohibitions beyond any warehouse would have left many of them reasonable construal of original meaning; inoperable. To use this "original" and now it is the conservatives' turn. understanding to allow members of the Another plausible example of payback is the National Guard to store military weapons conservative justices' expansive (machine guns, grenades, Hummers, and so interpretation of the free-speech clause of on) would be preposterous, and it is the First Amendment to limit regulation of disclaimed in the majority opinion. campaign financing.
In these and other ways, the Heller decision It is possible that in both the gun control is exposed as an example of loose case and the campaign-finance cases the construction-despite the Court's pretense justices in the majority, rather than playing of engaging in originalist interpretation (but tit for tat, thought the laws they were
419 invalidating very dumb, and in the case of schools rejected the imposition on the District of Columbia's ban on possession government of a constitutional restraint that of pistols thought the law wimpish and the liberal justices wanted to impose. paternalistic, like requiring bikers to wear helmets. A law that bans possession of Another illuminating contrast to Heller is pistols outright may even be inferior, at least the recent Kelo decision. The Supreme as a method of controlling crime, to a law Court held that the just compensation clause that combines strict permit requirements of the Fifth Amendment does not forbid a with heavy penalties for violating them, or state to condemn private property and, even to one that simply imposes draconian having thus seized it, to turn it over to a penalties on crimes committed with guns. private developer. The decision provoked But judges are not supposed to invalidate outrage by conservatives, who oppose laws merely because, as legislators, they condemnation because it infringes rights of would have voted against them. private property. They should not have been outraged. All the Court did was unshackle There is an important difference, obvious government from a potential constitutional but often overlooked, between using loose constraint, and by doing so toss the issue construction to prevent making the into the political arena. And sure enough, in Constitution a straitjacket and using it to the wake of the decision a number of states, make the Constitution a straitjacket. In under pressure from property interests, Kennedy v. Louisiana, a decision handed curtailed their eminent domain powers. down shortly before Heller, the Supreme Court held that to execute a person who Similarly, had the Supreme Court upheld the rapes a child but does not kill her violates District of Columbia gun ordinance, it the cruel and unusual punishments clause of would not have been outlawing the private the Eighth Amendment. That was a loose possession of guns. It would merely have construction that tied the hands of the states been leaving the issue of gun control to the and the federal government, and Scalia and political process. The popularity of the the other conservative justices dissented. But decision and its prompt endorsement by both in Heller it was the liberal justices who were presidential candidates attests to the political dissenting from a decision that ties the hands power of the "gun lobby"; and an unpopular of the federal government, and of the states, decision in favor of the government would too, if the Supreme Court decides that the actually have strengthened the lobby, just as Second Amendment constrains state as well Roe v. Wade strengthened the anti-abortion as federal government action. Compare movement. The proper time for using loose these two cases to the Zelman case, decided construction to enlarge constitutional several years ago. There the Court upheld, restrictions on government action is when against a challenge based on the clause of the group seeking the enlargement does not the First Amendment that forbids have good access to the political process to governmental establishments of religion, the protect its interests, as abortion advocates, funneling of public monies to private like gun advocates, did and do. schools by means of vouchers that parents can use to pay for their kids' tuition. Most Constitutional interpretations that relax private schools are Catholic parochial rather than tighten the Constitution's grip on schools. The interpretation of the the legislative and executive branches of establishment clause that permitted the use government are especially welcome when of public moneys to finance parochial there are regional or local differences in 420 relevant conditions or in public opinion. The judgment; and when the nation is deeply failure to recognize this point (or perhaps divided over an issue to which the indifference to it) was the mistake that the Constitution does not speak with any clarity, Supreme Court made when it nationalized and a uniform national policy would abortion rights in Roe v. Wade. It would be override differences in local conditions, the mistake the Court would be making in nationalization may be premature. the unlikely event that it created a federal constitutional right of homosexual marriage. There is a further difference between It is the mistake the Court has made in constitutional interpretations that permit Heller. The differences in attitudes toward government action and ones that forbid it: private ownership of pistols across regions only the latter create new business for the of the country and, outside the South, federal courts. Conservatives rightly decry between urban and rural areas, are profound the enormous expansion in the federal (mirroring the national diversity of views caseload caused by the aggressive about gay marriage, and gay rights in constitutional rulings of liberal justices in general, as well as about abortion rights). A the 1960s. But if the new rule declared in uniform rule is neither necessary nor Heller is applied to the states, we may see a appropriate. Yet that is what the Heller similar result, this time engineered by decision will produce if its rule is held conservatives; and we will have further applicable to the states as well as to the confirmation that the Warren Court liberated District of Columbia and other federal conservative as well as liberal judges from enclaves. the constraint of judicial modesty. Every time a gun permit is denied, the disappointed Heller gives short shrift to the values of applicant will have a potential constitutional federalism, and to the related values of claim litigable in the federal courts. cultural diversity, local preference, and social experimentation. A majority of Justice Scalia was emphatic that the right to Americans support gun rights. But if the possess a gun is not absolute. He sparred District of Columbia (or Chicago or New with Justice Stephen Breyer (who wrote a York) wants to ban guns, why should the separate dissenting opinion) over the views of a national majority control? Is that standard to be applied to restrictions on gun democracy, or is it Rousseau's forced ownership. All that is clear is that an conformity to the "general will"? True, a absolute ban on possessing a pistol is member of a national majority can be a unconstitutional. The other restrictions that a member of a minority within a local area: government might want to impose are up for gun buffs in Washington, D.C., for example. grabs. It may take many years for the dust to But a person who is a member of a local settle-many years of lawsuits that our minority but a national majority can relocate litigious society does not need. to a part of the country in which the national majority rules. A resident of Washington Conservatives rightly believe, moreover, can move to northern Virginia. This is not to that the efficacy of legally enforceable rights say that there should be no national rights- as an engine for social reform is overrated. that Mississippi should be permitted to stone The effects even of such well known and adulterers, or Rhode Island to ban The Da generally applauded decisions as those Vinci Code. But the question of whether to invalidating racial segregation of public nationalize an issue in the name of the schools and the malapportionment of state Constitution calls for an exercise of legislatures are uncertain, and may not have 421 been, on balance, beneficial. The only the risk that allowing limited gun ownership certain effect of the Heller decision-for the in the District of Columbia would lead to scholarly literature has yet to reach more death and injury from guns was consensus on the effects of gun-control enough to uphold the District's gun law laws-will be to increase litigation over gun against constitutional challenge. ownership. Since Stevens devoted most of his dissenting I cannot discern any principles in the pattern opinion in Heller to his own interpretation of the Supreme Court's constitutional of the original meaning of the Second interpretations. The absence of principles Amendment, observers may conclude that supports the hypothesis that ideology drives the entire Court has now embraced decision in cases in which liberal and originalism as the canonical method of conservative values collide. If loose interpreting the Constitution. But this is not construction produces a conservative a plausible inference in light of the child- limitation on government, most rapist case of just a few weeks earlier (non- conservatives will support it and most murdering rapists of adult women were liberals will oppose it; and if it produces a being executed in the United States as liberal limitation on government, most recently as the 1960s), from which Scalia liberals and conservatives will switch sides. dissented. One supposes that Stevens could The qualification in "most" is important, not resist meeting the majority on its own though. Scalia has voted to invalidate, on ground, since the text and the history (both free-speech grounds, laws forbidding the pre- and post-enactment) of the Second burning of the American flag. That is loose Amendment favor the dissent. Among other construction-decidedly non-originalist in things, professional historians were on the narrow sense of his opinion in Heller- Stevens's side. because burning is not speech; and it is a loose construction that produces a liberal Still, his opinion seems to me too dogmatic outcome. Breyer concurred in a decision that (the historical evidence is not as one-sided allowed the Ten Commandments to be as his opinion suggests); and it leaves the exhibited on the grounds of the Texas impression that all that divided the two Capitol; and that was a conservative vote wings of the Court was a disagreement over (and the swing vote in the case) by a liberal the historical record. That was playing into justice. Scalia's hands. The majority (and the dissent as well) was engaged in what is derisively Whatever generated these justices' referred to--the derision is richly deserved- uncharacteristic votes in those two cases, it as "law office history." Lawyers are was not a decision-making method that advocates for their clients, and judges are prevents the exercise of discretion. Both advocates for whichever side of the case justices employ judicial methodologies that they have decided to vote for. The judge leave them with plenty of running room. In sends his law clerks scurrying to the library his dissent in the Zelman case, Breyer and to the Web for bits and pieces of argued that the school voucher system was historical documentation. When the clerks unconstitutional because there was a "risk" are the numerous and able clerks of that it could create "a form of religiously Supreme Court justices, enjoying the based conflict potentially harmful to the assistance of the capable staffs of the Nation's social fabric." In his dissent in Supreme Court library and the Library of Heller he reversed the burden, arguing that Congress, and when dozens and sometimes 422 hundreds of amicus curiae briefs have been vivification and enforcement. But nothing filed, many bulked out with the fruits of has changed in the social environment to their authors' own law-office justify giving the Second Amendment a new historiography, it is a simple matter, life discontinuous with its old one: a new especially for a skillful rhetorician such as wine in a decidedly old wineskin. There is Scalia, to write a plausible historical defense no greater urgency about allowing people to of his position. possess guns for self-defense or defense of property today than there was thirty years But it was not so simple in Heller, and ago, when the prevalence of violent crime Scalia and his staff labored mightily to was greater, or for that matter one hundred produce a long opinion (the majority opinion years ago. Only the membership of the is almost 25,000 words long) that would Supreme Court has changed. convince, or perhaps just overwhelm, the doubters. The range of historical references If constitutional decisions are to be in the majority opinion is breathtaking, but it determined by the balance between liberals is not evidence of disinterested historical and conservatives on the Supreme Court, the inquiry. It is evidence of the ability of well- fig-leafing that we find in Heller-the staffed courts to produce snow jobs. historicizing glaze on personal values and policy preferences-will continue to be This is strikingly shown by the lengthy irresistibly tempting to the justices, with discussion of the history of interpretation of their large and tireless staffs and their the Second Amendment. Scalia quotes a commitment to a mystique of "objective" number of statements to the effect that the interpretation. There is no way to purge amendment guarantees a personal right to political principles from constitutional possess guns-but they are statements by decision-making, but they do not have to be lawyers or other advocates, including liberal or conservative principles. A legislators and judges and law professors all preference for judicial modesty-for less tendentiously dabbling in history, rather than interference by the Supreme Court with the by disinterested historians: more law-office other branches of government-cannot be history, in other words. Sanford Levinson, a derived by some logical process from distinguished constitutional law professor, constitutional text or history. It would have has candidly acknowledged that the most to be imposed. It would be a discretionary important reason for his support of a choice by the justices. But judging from constitutional right of private possession of Heller, it would be a wise choice. It would guns is that opposition to this right is go some distance toward de-politicizing the harmful to the electoral prospects of the Supreme Court. It would lower the Democratic Party. temperature of judicial confirmation hearings, widen the field of selection of The statements that the majority opinion justices, and enable the Supreme Court to cited had little traction before Heller. For attend to the many important non- more than two centuries, the "right" to constitutional issues that it is inclined to private possession of guns, supposedly neglect. created by the Second Amendment, had lain dormant. Constitutional rights often lie Richard A. Posner is a judge for the Seventh dormant, spectral subjects of theoretical Circuit of the U.S. Court of Appeals and a speculation, until some change in the social senior lecturer at the University of Chicago. environment creates a demand for their
423 "History's Lessons on Gun Rights"
SCOTUSblog March 15, 2008 Lyle Denniston
When history is pressed through filters of Second Amendment, his draft was to legal advocacy, what comes out may be very combine all of those words and phrases into different, depending, of course, upon the a composite: "The right of the people to filter used. The Constitution's Second keep and bear arms shall not be infringed; a Amendment-the one that guarantees "a well armed and well regulated militia being right to keep and bear arms"-has a history the best security of a free country: but no that has been examined exhaustively for person religiously scrupulous of bearing generations, and the disagreements over how arms, shall be compelled to render military to read it have gone on unendingly. Now, service in person." opposite sides in the Supreme Court case testing the scope and meaning of that In the end, these are the words that wound Amendment-the case that comes up for up in the Amendment: "A well regulated argument next Tuesday morning-have Militia, being necessary to the security of a taken their turn at reading the history as a free State, the right of the people to keep and matter of legal advocacy. Not unexpectedly, bear Arms, shall not be infringed." James Madison, the primary architect of the Amendment, is caught in the middle. And What does that history show? To the District that is but an illustration of the history-the of Columbia government and its mayor, that histories-that have been laid before the sequence shows that the Amendment had a Justices. military-only focus. Its brief argues: "Reading the text of the Second Amendment When a convention met in Virginia to as a unified whole to protect only militia- consider ratifying the proposed Constitution, related firearm rights reflects the concerns Madison was a delegate. When some expressed by the Framers from the time of delegates said a new national convention the Constitutional Convention through should be called to change the document, a adoption of the Amendment by the First committee on which Madison sat tried to Congress." The brief goes on to examine head off that maneuver by offering a list of some history from the deliberations in the 40 changes that would be passed along to First Congress, suggesting that "Madison's the First Congress to consider. One draft was revised to make the Amendment's contained the words "the people have a right exclusively military focus even clearer." to keep and bear arms" as well as these words: "a well regulated militia . . . trained But, starting from some of the same to arms is the proper, natural and safe historical bases, a group named Academics defense of a free state." Another proposed for the Second Amendment (law professors that anyone with religious objections to who set up their group in 1992 to advocate "bearing arms" should be allowed to pay an individual rights interpretation) comes someone else "to bear arms in his stead." out differently. It agrees that Madison When Madison, in the First Congress, sat crafted his initial proposal primarily from down to draft what would become the the work of the Virginia ratifying
424 convention's committee. The proposal to Article VII was only a part of a larger have a right to keep and bear arms and to movement to vindicate the supremacy of recognize a militia as a key to defense, the Parliament. The historians sum up: "The Academics say, was intended to embrace a liberty Englishmen cherished would be concept of "essential and inalienable rights secured by confirming that a Parliament of the people." Another set of the Virginia respectful of their rights and representative proposals discussed distribution of of society would have sovereign authority to government power for dealing with military make law. Article VII endorsed the idea that needs, not rights. Madison, the Academics well-to-do Protestants might keep arms contend, wrote his draft from the rights against the threat of a Catholic restoration, proposals, not the distribution of power. but as the formula 'according to law' made They go on to address activity in the First clear, this imposed no limit on the reach of Congress, noting that the Senate voted down parliamentary power." a proposal to add the military needs idea to the Constitution-language that, they note, On the other side, Joyce Lee Malcolm, a Madison left out of his draft. professor of legal history at George Mason Law School and the author of two books on The technique of advocacy in each case- the English right to arms, goes back to the and this is typical of the other historical same English history in a joint brief she filed ruminations put before the Court-is to with the Cato Institute. Citing the same examine history with some selectivity rather language of Article VII of the English Bill, than comprehensively. Note, in the example the professor and Cato say: "This article set about Madison's choices, that some parts of out a personal right." It was part of a list of the history are the same, but others are not, rights that accompanied 12 indictments yet each points to a conclusion supporting against King James II, including one that side's core argument. That, of course, is indictment that accused him of disarming more the method of those with legal skills Protestants. The brief adds: "Neither the than those trained in history's disciplines. article nor the indictment tied having arms to militia service, which the Declaration Another example comes in the two sides' nowhere mentioned." The brief sums up that review of the English history that lies behind "by the Second Amendment's adoption, the Second Amendment, and the issue at Americans had inherited a broadly stake before the Court. Going back to the applicable and robust individual right that Glorious Revolution of 1688 and its early had been settled for at least fifty years. This aftermath, each side sees its perceptions right of course had limits, but they did not validated by the English Bill of Rights intrude on the core right to keep firearms to accepted by William and Mary. Article VII defend home and family: They confirmed guaranteed Protestants that they would have it." ''arms for their defense suitable to their condition and as allowed by law." Much of the disagreement in the legal briefs in the D.C. gun case focuses on the impact A group of 15 constitutional historians, that guns, and, alternatively, the impact that supporting the District of Columbia, reads gun control laws, have on racial and other that provision as a specific response to the minorities. Again, history is brought to bear need to safeguard the Protestant population to support the conclusions stated in the two and all of England from a restoration of sides' conflicting briefs. Catholicism. Moreover, their brief goes on, 425 For example, the NAACP Legal Defense only Second Amendment challenge to Fund notes one historian's argument that a federal firearms legislation resolved by this function of the "well regulated militia" of Court"). But a different group, led by former the Second Amendment was used during Attorneys General Edwin Meese and colonial times and afterward to help William P. Barr, conclude that the maintain slavery and suppress slave Department's history on the subject did not rebellion. And it argues that the Black Codes "provide well-reasoned, or even consistent, of the post-Civil War Reconstruction era support" for the view that the Amendment should not be confused with modem does not protect an individual right. And attempts to control gun laws. Those Codes, they counter the other ex-officials' citation it says, were blatantly discriminatory, but to the U.S. brief in the Miller case by noting there is no proof of that in the D.C. gun that the argument picked out in the other ban's history. By contrast, the Congress of brief was only an argument alternative to Racial Equality, in a lengthy excursion into others that were consistent with an the history of the Black Codes of individual rights view. Reconstruction days, notes that those provisions "often prohibited the purchase or Perhaps it was inevitable: the notion that possession of firearms" by freed slaves. It silence speaks also comes into arguments cites an 1867 report of the Anti-Slavery about what history has to say (or not). Conference concluding that blacks were Eighteen Democratic members of Congress, "forbidden to own or bear firearms, and thus for example, cite the Supreme Court's were rendered defenseless against assaults." "decades-long silence" in addressing the (One of the authors of the CORE brief is law meaning of the Second Amendment as a professor Robert Cottroll of George reason for the Court now to pay more Washington University-who also is cited attention to what Congress was doing during as one of the authorities in the brief of the that time: passing many laws to impose gun NAACP LDF.) control without fretting over the Second Amendment. But, countering that argument, On another level, there is strong Vice President Cheney and a majority of the disagreement, from a number of former U.S. current members of the House and Senate attorneys general and other ex-officials in examine that period of congressional the Justice Department top echelon, about activity and find in it repeated instances of what that Department's history says about legislative comments supporting the the nature of the Second Amendment. One individual rights theory, including "a group, led by former Attorneys General scholarly report" by a Senate subcommittee Janet Reno and Nicholas Katzenbach, in 1968 saying that what the Amendment stresses the decades during which their protects "is an individual right of a private Department supported the view that the citizen to own and carry firearms in a Amendment did not embrace a private, peaceful manner." And, in its own individual right-and notes that the suggestion of eloquence in silence, that brief Department put that argument before the recites references to an individual rights Supreme Court when it last examined the theory in pending bills that Congress has not Amendment's meaning: U.S. v. Miller, in enacted. 1939 (which, they recall, was "the first and
426 "Justices, Ruling 5-4, Endorse Personal Right to Own Gun"
New York Times June 27, 2008 Linda Greenhouse
WASHINGTON-The Supreme Court on In a dissenting opinion, Justice John Paul Thursday embraced the long-disputed view Stevens took vigorous issue with Justice that the Second Amendment protects an Scalia's assertion that it was the Second individual right to own a gun for personal Amendment that had enshrined the use, ruling 5 to 4 [in District of Columbia v. individual right to own a gun. Rather, it was Heller, No. 07-290,] that there is a "today's law-changing decision" that constitutional right to keep a loaded bestowed the right and created "a dramatic handgun at home for self-defense. upheaval in the law," Justice Stevens said in a dissent joined by Justices David H. Souter, The landmark ruling overturned the District Ruth Bader Ginsburg and Stephen G. of Columbia ban on handguns, the strictest Breyer. Justice Breyer, also speaking for the gun-control law in the country, and appeared others, filed a separate dissent. certain to usher in a new round of litigation over gun rights throughout the country. Justice Scalia and Justice Stevens went head to head in debating how the 27 words in the The court rejected the view that the Second Second Amendment should be interpreted. Amendment's "right of the people to keep The majority opinion and two dissents ran and bear arms" applied to gun ownership 154 pages. only in connection with service in the "well regulated militia" to which the amendment Justice Stevens said the majority opinion refers. was based on "a strained and unpersuasive reading" of the text and history of the Justice Antonin Scalia's majority opinion, Second Amendment, which provides: "A his most important in his 22 years on the well regulated militia, being necessary to the court, said that the justices were "aware of security of a free state, the right of the the problem of handgun violence in this people to keep and bear arms, shall not be country" and "take seriously" the arguments infringed." in favor of prohibiting handgun ownership. According to Justice Scalia, the "militia" "But the enshrinement of constitutional reference in the first part of the amendment rights necessarily takes certain policy simply "announces the purpose for which choices off the table," he said, adding, "It is the right was codified: to prevent not the role of this court to pronounce the elimination of the militia." The Second Amendment extinct." Constitution's framers were afraid that the new federal government would disarm the Justice Scalia's opinion was signed by Chief populace, as the British had tried to do, Justice John G. Roberts Jr. and Justices Justice Scalia said. Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. But he added that this "prefatory statement
427 of purpose" should not be interpreted to law-abiding citizens for lawful purposes, limit the meaning of what is called the such as short-barreled shotguns." operative clause-"the right of the people to keep and bear arms, shall not be infringed." Justice Stevens said the majority's Instead, Justice Scalia said, the operative understanding of the Miller decision was not clause "codified a pre-existing right" of only "simply wrong," but also reflected a individual gun ownership for private use. lack of "respect for the well-settled views of all of our predecessors on the court, and for Contesting that analysis, Justice Stevens said the rule of law itself." the Second Amendment's structure was notable for its "omission of any statement of Despite the decision's enormous symbolic purpose related to the right to use firearms significance, it was far from clear that it for hunting or personal self-defense," in actually posed much of a threat to the most contrast to the contemporaneous common gun regulations. Justice Scalia's "Declarations of Rights" in Pennsylvania opinion applied explicitly just to "the right and Vermont that did explicitly protect those of law-abiding, responsible citizens to use uses. arms in defense of hearth and home," and it had a number of significant qualifications. It has been nearly 70 years since the court last examined the meaning of the Second "Nothing in our opinion," he said, "should Amendment. In addition to their linguistic be taken to cast doubt on longstanding debate, Justices Scalia and Stevens also prohibitions on the possession of firearms by sparred over what the court intended in that felons and the mentally ill, or laws decision, United States v. Miller. forbidding the carrying of firearms in sensitive places such as schools and In the opaque, unanimous five-page opinion government buildings, or laws imposing in 1939, the court upheld a federal conditions and qualifications on the prosecution for transporting a sawed-off commercial sale of arms." shotgun. A Federal District Court had ruled that the provision of the National Firearms The opinion also said prohibitions on Act the defendants were accused of violating carrying concealed weapons would be was barred by the Second Amendment, but upheld and suggested somewhat less the Supreme Court disagreed and reinstated explicitly that the right to personal the indictment. possession did not apply to "dangerous and unusual weapons" that are not typically used For decades, an overwhelming majority of for self-defense or recreation. courts and commentators regarded the Miller decision as having rejected the The Bush administration had been individual-right interpretation of the Second concerned about the implications of the case Amendment. That understanding of the for the federal ban on possessing machine "virtually unreasoned case" was mistaken, guns. Justice Scalia said Thursday. President Bush welcomed the decision. "As He said the Miller decision meant "only that a longstanding advocate of the rights of gun the Second Amendment does not protect owners in America," he said in a statement, those weapons not typically possessed by "I applaud the Supreme Court's historic
428 decision today confirming what has always needed guidance to local jurisdictions across been clear in the Constitution: the Second the country." Amendment protects an individual right to keep and bear firearms." He praised the decision for endorsing the individual-rights view and for describing the The opinion did not specify the standard by right as "not absolute and subject to which the court would evaluate gun reasonable regulations enacted by local restrictions in future cases, a question that communities to keep their streets safe." was the subject of much debate when the case was argued in March. Unlike the court's ruling this month on the rights of the Guantanamo detainees, this Among existing gun-control laws, just decision, District of Columbia v. Heller, No. Chicago comes close to the complete 07-290, appeared likely to defuse, rather handgun prohibition in the District of than inflame, the political debate. The Columbia's 32-year-old law. The district's Democratic Party platform in 2004 included appeal to the Supreme Court, filed last year a plank endorsing the individual-rights view after the federal appeals court here struck of the Second Amendment. down the law, argued that the handgun ban was an important public safety measure in a The case reached the court as a result of an congested, crime-ridden urban area. assumption by the Cato Institute, a libertarian organization here, that the time On the campaign trail on Thursday, both was right to test the prevailing interpretation major-party presidential candidates of the Second Amendment. Robert A. Levy, expressed support for the decision-more a lawyer and senior fellow of the institute, full-throated support from Senator John looked for law-abiding district residents McCain, the presumptive Republican rather than criminal defendants appealing nominee, and a more guarded statement of convictions, to challenge the law. support from Senator Barack Obama, his presumptive Democratic opponent. Mr. Levy, who financed the case, recruited six plaintiffs. Five were dismissed for lack Mr. McCain called the decision "a landmark of standing. But the United States Court of victory for Second Amendment freedom in Appeals for the District of Columbia Circuit the United States" that "ended forever the ruled in favor of one, Dick Anthony Heller. specious argument that the Second He is a security guard who carries a gun Amendment did not confer an individual while on duty at a federal judicial building right to keep and bear arms." here and was denied a license to keep his gun at home. The court said Thursday that Mr. Obama, who like Mr. McCain has been assuming Mr. Heller was not "disqualified on record as supporting the individual-rights from the exercise of Second Amendment view, said the ruling would "provide much- rights," the district government must issue him a license.
429 "Supreme Court Finds History Is a Matter of Opinions"
Los Angeles Times July 13, 2008 David Savage
WASHINGTON-In 1985, President Justice Anthony M. Kennedy cited early Reagan's attorney general, Edwin Meese III, English cases in which Spanish sailors and criticized the Supreme Court's decisions and African slaves petitioned a judge for their called on the justices to decide cases based freedom. This suggests that the right of on the "original intent" of the Constitution. habeas corpus was not limited to English The justices were wrong to rely on subjects, he said. Rather, when this right was contemporary views of liberty and equality, written into the U.S. Constitution in 1787, it Meese said; instead, they should rely on the set a basic principle of liberty that protects understanding of those concepts in the late people who are captured and held by the 18th century, when the Constitution and the government, including the foreign prisoners Bill of Rights were written. held at Guantanamo, Kennedy said in Boumediene vs. Bush. This year the Supreme Court relied more than ever on history and the original Wrong, Justice Antonin Scalia wrote in meaning of the Constitution in deciding its dissent. He said English history showed that major cases. the writ of habeas corpus was limited to sovereign English territory. It certainly did In doing so, however, the court has drawn not extend to prisoners captured abroad by criticism from some historians and legal soldiers or sailors, he said. experts who say the justices' readings of history were less than scholarly. And the In the other case, District of Columbia vs. justices sometimes disagreed sharply on the Heller, the justices wrote about 150 pages of historical record, demonstrating that opinion and dissent on whether the 2nd divining the original meaning of the Amendment was intended to preserve a Constitution is no small matter. "well-regulated militia" in each state or to protect an individual's right to keep a gun The term's two most important opinions- for self-defense. on the reach of habeas corpus in the war on terrorism, and on the meaning of the 2nd Scalia, speaking for a 5-4 majority, Amendment-trace the origins of the right described how the Stuart kings of England to go to court and the right to "keep and bear had held power by confiscating the arms of arms" to 17th century England and Colonial their opponents. This, in turn, led to their America. overthrow and to the English Bill of Rights of 1689, which said Englishmen "may have All nine justices agreed that the original arms for their defense." understanding was crucial. However, they split 5 to 4 in both cases on how to interpret Scalia also cited studies by UCLA law the history. professor Eugene Volokh and others showing that some Colonial-era state In the case of Guantanamo Bay detainees, constitutions spoke of a right "to bear arms
430 for the defense of themselves and the state." History is complicated, Tushnet suggested, This suggests that the right to bear arms but the law requires clear answers, and the extended beyond service in the state militia. justices "share the natural human tendency to exaggerate the case that can be made for In dissent, Justice John Paul Stevens said the side they ultimately favor." Scalia was looking in the wrong place. James Madison, the author of the Bill of The court's focus on history went well Rights, rejected broader proposals and beyond those two cases. The justices cited a focused on preserving "a well-regulated series of early shipwreck cases to help militia" and a right to "bear arms" in decide whether Exxon could be forced to military service, Stevens contended. pay punitive damages for the 1989 Exxon Valdez oil spill off Alaska. The phrase "bear arms" referred to military service, he added. In a footnote, he quoted a "The modem Anglo-American doctrine of judge in the 19th century saying, "A man in punitive damages dates back at least to the pursuit of deer, elk and buffaloes might 1763," Justice David H. Souter wrote in carry his rifle every day for 40 years, and yet Exxon Shipping Co. vs. Baker. He noted that it would never be said of him that he had an ancient forerunner of the notion of bome arms." punitive damages is found in a case under the Code of Hammurabi from Babylon, The court's new focus on history drew the which established the principle that the attention-and some snide blog postings- penalty for stealing a goat was 10 times its of legal historians who faulted the justices value. for selectively citing cases and writings to bolster their favored view. Even a Los Angeles murder case was decided largely on English history. "Neither of the two main opinions in Heller would pass muster as serious historical Dwayne Giles shot and killed his girlfriend writing," Stanford University historian Jack Brenda Avie in 2002. He claimed self- Rakove wrote on a blog called defense, but a police officer testified to the Balkinization. jury that three weeks before the shooting, Avie said Giles had threatened to kill her. Neither Scalia nor Stevens is a "competent historian," University of Texas at Austin In Giles vs. California, Scalia said the police professor Sanford Levinson wrote in another officer's testimony violated the defendant's Balkinization posting. Their work is "what right to "confront" the witnesses against is sometimes called 'law-office history,' in him. Avie was dead and could not testify, so which each side engages in shamelessly (and the judge should not have allowed her words shamefully) selective readings of the to be read to the jury, Scalia said, unless historical record in order to support what prosecutors could show that Giles killed her one suspects are predetermined positions." in order to silence her testimony.
Harvard law professor Mark Tushnet, like According to Scalia, this "doctrine has roots Levinson, has studied the 2nd Amendment. in the 1666 decision in Lord Morley's case," Tushnet wrote that both opinions which set the rule that statements of a "demonstrate why judges shouldn't play missing witness may not be used unless the historian." witness was "kept away" by the "means or 431 procurement" of the defendant. Scalia drew for killing the witness against him. the lesson that statements to the police may not be used at a trial unless the defendant Scalia was appointed to the court by Reagan intentionally "procured" the absence of the in 1986, a year after Meese's speech, and he witness. advocated a historical approach. Justice Clarence Thomas, who joined the court in In dissent, Justice Stephen G. Breyer said it 1991, followed suit. Since the arrival of was bizarre to rely on snippets of 17th Chief Justice John G. Roberts Jr. and Justice century English cases to decide the Samuel A. Alito Jr. in the last couple of Constitution today. "Each year, domestic years, Scalia has more often found himself violence results in more than 1,500 deaths" in the position of speaking for the court's in this country, he said, and there is no good majority rather than firing off opinions in reason for giving a defendant "a windfall" dissent.
432 "What Did the Framers Have in Mind?"
New York Times July 6, 2008 Stanley Fish
Whatever side of the Second Amendment amendment will have one and only one controversy you may be on, the clear winner obvious meaning. in District of Columbia v. Heller (striking down a Washington, D.C., ban on hand For Scalia, that meaning is that Americans guns) was intentionalism, the thesis that a have "an individual right to possess a text means what its author or authors intend. firearm unconnected with service in a militia, and to use that arm for traditionally The text in dispute is 27 words long, and it lawful purposes, such as self-defense within is cited in the opening pages of each of the the home." For Justice John Paul Stevens, three opinions: "A well regulated Militia, the Second Amendment "was adopted to being necessary to the security of a free protect the right of the people of each of the State, the right of the people to keep and several states to maintain a well-regulated bear arms, shall not be infringed." None of militia," and he finds no "evidence the words in this sentence is esoteric and the supporting the view that the amendment was syntax is straightforward; but if textual intended to limit the power of Congress to simplicity were sufficient to determine regulate the civilian uses of weapons." meaning, there would be no reason for 157 pages of close legal and linguistic argument. The evidence that might satisfy Stevens will not be found in the amendment itself, for as What are the justices arguing about? A lot- the opinions amply demonstrate, the 27 the meaning of words, the significance of words can be made to bear either documents contemporary to the framing of interpretation. Does the first clause of the the amendment, debates at constitutional amendment govern the second, conventions, regulations adopted or not propositional, clause and constrain its adopted by various states, the Court's own meaning (it is only in relation to the desire precedents-but basically the argument is to maintain a healthy militia that the right to about what the framers had in mind. As bear arms is asserted)? Or does the first Justice Antonin Scalia, writing for the clause only establish a general, pre-existent majority, observes, "The two sides in the condition that does not direct the application case have set out very different of the second? interpretations of the amendment." Scalia, who holds the latter view, declares But the two sides do not proceed from that "a prefatory clause does not limit or different theories of interpretation. Both expand the scope of the operative clause." agree that the task is to read the amendment But in fact it sometimes does and it in the light of the purpose the framers would sometimes doesn't. A formal, grammatical have had in writing it. They disagree about analysis will no more settle the matter than what that purpose was, and the materials will a lexical analysis. Only by putting a they cite are meant to establish a purpose so background intention firmly in place can one firmly that in the light of it the words of the stabilize a text that (like all texts) varies with
433 the purpose assigned to it. That is why each criminals." He puts particular weight on a side hears the other's interpretation as report from a congressional committee that "grotesque" or "strained." Reading within found handguns "to have a particularly different assumptions of the framers' strong link to undesirable activities in the intention, they see different texts and cannot District's exclusively urban environment." understand how anyone could miss what is to each of them so differently clear. Scalia If that were all there was to Breyer's confidently concludes that nothing in the opinion, it would be vulnerable to Scalia's Court's precedents "forecloses our adoption retort that even if "gun violence is a serious of the original understanding of the Second problem," no mere sociological finding Amendment," and he is sure he knows what authorizes or obligates the Court "to that understanding was. pronounce the Second Amendment extinct." Where's the link to what the Constitution Stevens just as strongly believes that the says? evidence he marshals "sheds revelatory light on the purpose of the amendment" and that Breyer claims to find it in the phrase he too knows what that purpose (and "exclusively urban environment," which therefore the amendment's meaning ) was. allows him to ground his support of the And yet, while the two jurists come to statute in what at least looks like an different interpretive conclusions, they are intentionalist argument. The reasoning is playing the same interpretive game, the somewhat convoluted because it relies on a game of trying to figure out what the authors negative. The problem the statute is intended of the amendment intended by its words. to redress, he says, is largely urban; but in thinking about the Second Amendment, the For a large part of his separate dissenting framers would have been "unlikely . . . to opinion, Justice Stephen G. Breyer seems to have thought of a right to keep loaded be playing another game. He is less handguns in homes to confront intruders in concerned with intention and purpose than urban settings," if only because in the with the problems faced by crime-ridden America they knew there were no urban urban areas. His question, at least at first, is settings. Therefore they couldn't have had not How can we be true to the framers' the intention to disallow a regulation of a intention? but How can we read the kind they could not have contemplated. amendment in a way thatfurthers our efforts to deal with a serious social problem? He Whether or not this argument is persuasive wants to focus on "the practicalities, the as an account of the framers' intention (and statute's rationale, the problems that called it it wasn't persuasive to five of Breyer's into being, its relationship to those brethren), its intention is clear-to allow objectives-in a word, the details." He Breyer to present himself as an identifies as the statute's "basic objective" intentionalist. the saving of lives and he cites statistics that establish, he believes, a strong correlation In the end, what we have in District of between the availability of hand guns and Columbia v. Heller is a unanimous decision. crime. Handguns, he observes, "are involved The vote is 5-to-4 on the interpretation of in a majority of firearms deaths and injuries the amendment's intention, but it's 9-to-O on in the United States." And they are also, he the specification of intention as the declares, "a very popular weapon among interpreter's task.
434 "News Flash: The Constitution Means What It Says"
Wall Street Journal June 27, 2008 Randy E. Barnett
Justice Antonin Scalia's majority opinion in evaluate "time, place and manner" yesterday's Supreme Court decision in regulations of speech and assembly. Such District of Columbia v. Heller is historic in regulations of First Amendment freedoms its implications and exemplary in its are today upheld if they are narrowly reasoning. tailored to achieve a truly important government purpose, but not if they are A federal ban on an entire class of guns in really a pretext for undermining protected ordinary use for self-defense-such as the liberties. handgun ban adopted by the District of Columbia-is now off the table. Every gun My prediction? Because gun-rights groups controller's fondest desire has become a like the NRA have so successfully prevented constitutional pipe dream. enactment of unreasonable gun laws, most existing gun regulations falling short of a Two important practical issues remain. First, ban will eventually be upheld. But more will this ruling also apply to states and extreme or merely symbolic laws that are municipalities? That will depend on whether sometimes proposed-whose aim is to the Supreme Court decides to "incorporate" impose an "undue burden" by raising the the right to keep and bear arms into the 14th cost of gun production, ownership and Amendment. But in the middle of his sale-would likely be found opinion Justice Scalia acknowledges that the unconstitutional. All gun regulations-for 39th Congress that enacted the 14th example, safe storage laws and licensing- Amendment did so, in part, to protect the will have to be shown to be consistent with individual right to arms of freedmen and an effective right of self-defense by law- Southern Republicans so they might defend abiding citizens. themselves from violence. Justice Scalia's opinion is exemplary for the My prediction: This ruling will eventually way it was reasoned. It will be studied by be extended to the states. law professors and students for years to come. It is the clearest, most careful Second, how will the court deal with interpretation of the meaning of the firearms regulations that fall short of a ban? Constitution ever to be adopted by a The majority opinion strongly suggests that majority of the Supreme Court. Justice such regulations must now be subjected to Scalia begins with the text, and carefully meaningful judicial scrutiny. The exact parses the grammatical relationship of the nature of this scrutiny is not clear, but "operative clause" identifying "the right to Justice Scalia explicitly rejects the keep and bear arms" to the "prefatory extremely deferential "rationality" review clause" about the importance of a "well- advocated by Justice Stephen Breyer. regulated militia." Only then does he consider the extensive evidence of original Most likely, gun laws will receive the same meaning that has been uncovered by sort of judicial scrutiny that is now used to scholars over the past 20 years-evidence
435 that was presented to the Court in numerous decisions or "precedents" that are "friends of the court" briefs. inconsistent with the original public meaning of the text. This shows why Justice Scalia's opinion is the finest example elections matter-especially presidential of what is now called "original public elections-and why we should vet our meaning" jurisprudence ever adopted by the politicians to see if they appreciate how the Supreme Court. This approach stands in Constitution ought to be interpreted. sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on Good legal scholarship was absolutely "original intent"-the method that many crucial to this outcome. No justice is capable historians employ to explain away the text of producing the historical research and of the Second Amendment by placing its analysis upon which Justice Scalia relied. words in what they call a "larger context." Brilliant as it was in its execution, his Although original-intent jurisprudence was opinion rested on the work of many scholars discredited years ago among constitutional of the Second Amendment, as I am sure he law professors, that has not stopped would be the first to acknowledge. nonoriginalists from using "original (Disclosure: I joined a brief by Academics intent"-or the original principles for the Second Amendment supporting the "underlying" the text-to negate its original individual rights interpretation; one of my public meaning. articles was cited by Justice Scalia and another by Justice Breyer in his dissent.) Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark Due to the political orthodoxy among most contrast with Justice Breyer's dissenting constitutional law professors, some of the opinion, in which he advocates balancing an most important and earliest of this enumerated constitutional right against what scholarship was produced by nonacademics some consider a pressing need to prohibit its like Don Kates, Stephen Halbrook, David exercise. Guess which wins out in the Kopel, Clayton Cramer and others. Believe balancing? As Justice Scalia notes, this is it or not, Heller was a case of nearly first not how we normally protect individual impression, uninhibited by any prior rights, and was certainly not how Justice decisions misinterpreting the Second Breyer protected the individual right of Amendment. habeas corpus in the military tribunals case decided just two weeks ago. Last but not least, tribute must be paid to the plaintiffs-Shelly Parker, Dick Anthony So what larger lessons does Heller teach? Heller, Tom Palmer, Gillian St. Lawrence, First, the differing methods of interpretation Tracey Ambeau, and George Lyon-who employed by the majority and the dissent went where the National Rifle Association demonstrate why appointments to the feared to tread, and to their lawyers Robert Supreme Court are so important. In the Levy, Clark Neily, and lead counsel Alan future, we should be vetting Supreme Court Gura. I was privileged to witness Mr. Gura nominees to see if they understand how argue the case-his first Supreme Court Justice Scalia reasoned in Heller and if they argument ever-and he was outstanding. are committed to doing the same. Heller provides yet another reminder of the crucial role that private lawyers play in the We should also seek to get a majority of the preservation of our liberties. Supreme Court to reconsider its previous 436 "A Liberal Case for the Individual Right to Own Guns Helps Sway the Federal Judiciary"
New York Times May 7, 2007 Adam Liptak
In March, for the first time in the nation's 1978 and 1988, endorsed the collective history, a federal appeals court struck down rights view. The latest, published in 2000, a gun control law on Second Amendment sets out his current interpretation. grounds. Only a few decades ago, the decision would have been unimaginable. Several other leading liberal constitutional scholars, notably Akhil Reed Amar at Yale There used to be an almost complete and Sanford Levinson at the University of scholarly and judicial consensus that the Texas, are in broad agreement favoring an Second Amendment protects only a individual rights interpretation. Their work collective right of the states to maintain has in a remarkably short time upended the militias. That consensus no longer exists- conventional understanding of the Second thanks largely to the work over the last 20 Amendment, and it set the stage for the years of several leading liberal law Parker decision. professors, who have come to embrace the view that the Second Amendment protects The earlier consensus, the law professors an individual right to own guns. said in interviews, reflected received wisdom and political preferences rather than In those two decades, breakneck speed by a serious consideration of the amendment's the standards of constitutional law, they text, history and place in the structure of the have helped to reshape the debate over gun Constitution. "The standard liberal rights in the United States. Their work position," Professor Levinson said, "is that culminated in the March decision, Parker v. the Second Amendment is basically just read District of Columbia, and it will doubtless out of the Constitution." play a major role should the case reach the United States Supreme Court. The Second Amendment says, "A well regulated militia, being necessary to the Laurence H. Tribe, a law professor at security of a free state, the right of the Harvard, said he had come to believe that people to keep and bear arms, shall not be the Second Amendment protected an infringed." (Some transcriptions of the individual right. amendment omit the last comma.)
"My conclusion came as something of a If only as a matter of consistency, Professor surprise to me, and an unwelcome surprise," Levinson continued, liberals who favor Professor Tribe said. "I have always expansive interpretations of other supported as a matter of policy very amendments in the Bill of Rights, like those comprehensive gun control." protecting free speech and the rights of criminal defendants, should also embrace a The first two editions of Professor Tribe's broad reading of the Second Amendment. influential treatise on constitutional law, in And just as the First Amendment's
437 protection of the right to free speech is not "The Second Amendment doesn't guarantee absolute, the professors say, the Second the right to have firearms at all," Mr. Burger Amendment's protection of the right to keep said in a speech. In a 1991 interview, Mr. and bear arms may be limited by the Burger called the individual rights view government, though only for good reason. "one of the greatest pieces of fraud-I repeat the word 'fraud'-on the American The individual rights view is far from public by special interest groups that I have universally accepted. "The overwhelming ever seen in my lifetime." weight of scholarly opinion supports the near-unanimous view of the federal courts Even as he spoke, though, the ground was that the constitutional right to be armed is shifting underneath him. In 1989, in what linked to an organized militia," said Dennis most authorities say was the beginning of A. Henigan, director of the legal action the modem era of mainstream Second project of the Brady Center to Prevent Gun Amendment scholarship, Professor Levinson Violence. "The exceptions attract attention published an article in The Yale Law Journal precisely because they are so rare and called "The Embarrassing Second unexpected." Amendment."
Scholars who agree with gun opponents and "The Levinson piece 'was very much a support the collective rights view say the turning point," said Mr. Henigan of the professors on the other side may have been Brady Center. "He was a well-respected motivated more by a desire to be scholar, and he was associated with a liberal provocative than by simple intellectual point of view politically." honesty. In an interview, Professor Levinson "Contrarian positions get play," Carl T. described himself as "an A.C.L.U.-type who Bogus, a law professor at Roger Williams has not ever even thought of owning a gun." University, wrote in a 2000 study of Second Amendment scholarship. "Liberal professors Robert A. Levy, a senior fellow at the Cato supporting gun control draw yawns." Institute, a libertarian group that supports gun rights, and a lawyer for the plaintiffs in If the full United States Court of Appeals for the Parker case, said four factors accounted the District of Columbia Circuit does not for the success of the suit. The first, Mr. step in and reverse the 2-to-1 panel decision Levy said, was "the shift in scholarship striking down a law that forbids residents to toward an individual rights view, keep handguns in their homes, the question particularly from liberals." of the meaning of the Second Amendment is almost certainly headed to the Supreme He also cited empirical research questioning Court. The answer there is far from certain. whether gun control laws cut down on crime; a 2001 decision from the federal That too is a change. In 1992, Warren E. appeals court in New Orleans that embraced Burger, a former chief justice of the United the individual rights view even as it allowed States appointed by President Richard M. a gun prosecution to go forward; and the Nixon, expressed the prevailing view. Bush administration's reversal of a
438 longstanding Justice Department position Second Amendment case since 1939. That under administrations of both political ruling was, as Judge Stephen Reinhardt, a parties favoring the collective rights view. liberal judge on the federal appeals court in San Francisco acknowledged in 2002, Filing suit in the District of Columbia was a "somewhat cryptic," again allowing both conscious decision, too, Mr. Levy said. The sides to argue that Supreme Court precedent gun law there is one of the most restrictive aided their interpretation of the amendment. in the nation, and questions about the applicability of the Second Amendment to Still, nine federal appeals courts around the state laws were avoided because the district nation have adopted the collective rights is governed by federal law. view, opposing the notion that the amendment protects individual gun rights. "We wanted to proceed very much like the The only exceptions are the Fifth Circuit, in N.A.A.C.P.," Mr. Levy said, referring to that New Orleans, and the District of Columbia group's methodical litigation strategy Circuit. The Second Circuit, in New York, intended to do away with segregated has not addressed the question. schools. Linda Singer, the District of Columbia's Professor Bogus, a supporter of the attorney general, said the debate over the collective rights view, said the Parker meaning of the amendment was not only an decision represented a milestone in that academic one. strategy. "This is the story of an enormously successful and dogged campaign to change "It's truly a life-or-death question for us," the conventional view of the right to bear she said. "It's not theoretical. We all arms," he said. remember very well when D.C. had the highest murder rate in the country, and we The text of the amendment is not a model of won't go back there." clarity, and arguments over its meaning tend to be concerned with whether the first part The decision in Parker has been stayed of the sentence limits the second. The while the full appeals court decides whether history of its drafting and contemporary to rehear the case. meaning provide support for both sides as well. Should the case reach the Supreme Court, Professor Tribe said, "there's a really quite The Supreme Court has not decided a decent chance that it will be affirmed."
439 JUSTICE SCALIA 'S A MATTER OF INTERPRETATION
"Judge Dread"
Slate January 22, 1997 David Franklin
There are two kinds of law, wrote Thomas Scalia offers two antidotes to this epidemic Paine in 1805: Legislative law is the law of of judicial lawmaking: textualism and the land, enacted by our own legislators, originalism. Textualism is just what it chosen by the people for that purpose. sounds like. As Scalia puts it, The text is the Lawyerslaw is a mass of opinions and law, and it is the text that must be observed. decisions which courts and lawyers have The only democratically binding feature of a instituted themselves. Paine liked the first statute is its literal language, because that kind of law better. So does Antonin Scalia. language alone has been ratified by both As the most intellectually consistent and houses of Congress and the president in stylistically gifted member of the Supreme accordance with the Constitution. Court, Scalia has never hidden his Originalism, as Scalia defines it, is a species enthusiasm for the American tradition of of textualism particularly relevant to mistrusting courts and lawyers. The basics constitutional interpretation. Its adherents of his judicial philosophy are now usefully tether their interpretations to plain meanings collated in [A Matter of Interpretation,] as they were understood when the text was which consists of an essay by the associate first penned. Originalists believe, as Scalia justice, followed first by responses from puts it, that a constitution's whole purpose is Gordon Wood, Laurence Tribe, Mary Ann to prevent change-to embed certain rights Glendon, and Ronald Dworkin, and then by in such a manner that future generations a reply from Scalia. cannot take them away.
According to Scalia, the problem begins in None of this is new to anyone who has paid law school, where tomorrow's judges digest attention to Scalia's opinions and other a steady diet of fusty 19th-century English writings over the past decade. Yet, in A appellate decisions, and taste-for the first Matter of Interpretation, his reprise of the time-the joys of reasoning by analogy and traditional jeremiad against judicial precedent. A few of these students befriend usurpation concludes with a twist. The their senators, or find some other way to specter raised by common-law judging, become federal judges; by that time, they Scalia says, is not the unelected judge have internalized what Scalia calls the determined to impose the values of an elite common-law attitude, and they become a few upon the masses, but that old dangerous lot. Faced with an ambiguous Tocquevillian villain, the tyranny of the statute or regulation, these judges, reared on majority. Scalia's argument goes like this: the common law, too often treat the enacted As judges persist in bending the law, the text as just one more precedent to majority of the moment will begin to insist circumvent. In other words, they hijack the ever more stridently on judges of its democratic process. particular ideological stripe. Once on the
440 bench, these judicial politicians Constitution. And so on. (emboldened by their anything-goes common-law attitudes) will set about Yet, Scalia is refreshingly right in several encoding the popular will into law, to the particulars. He justifiably laments the virtual detriment of unpopular minorities. disregard of statutory interpretation in law- school curricula, where the hoary common- As law Professor Mary Ann Glendon points law case-study method still predominates out in her response, this is an odd coda, despite the fact that most law nowadays especially given the majoritarian premises of takes the form of statutes and regulations. Scalia's philosophy. (Glendon shares Scalia's distrust of undisciplined judges, but Scalia also rightly rejects the use of hers is the more traditional anxiety, rooted in legislative history (committee reports and a fear of elites.) At the end of the book, floor debates) as a guide to divining Scalia, defending his prediction that judges lawmakers' intent. Committee reports are will carry democracy too far, contends that worthless, not only because they lack a the individual rights favored by judges tend democratic pedigree, but because they are to be the same ones championed by popular infinitely pliable. (Scalia quotes Judge majorities. Here is Scalia's list: women's Harold Leventhal's quip that using rights, racial-minority rights, homosexual legislative history is like looking over the rights, abortion rights, and rights against heads at a cocktail party until you spot your political favoritism. Scalia's notion of what friends.) And Scalia is right to object to the constitutes a popular cause does seem caricature of the textualist/originalist judge questionable-racial-minority and gay rights as wooden and unimaginative- are not nearly as universally supported as nontextualists, after all, can be plenty Scalia seems to think they are. His wooden and unimaginative themselves. nightmare scenario is also far-fetched: Life- tenured judges are dubious vehicles for Admitted nontextualists, incidentally, are implementing a popular will that changes becoming harder and harder to find. Scalia's from moment to moment. Besides, judges plain language approach has certainly can't be relied on: Supreme Court justices, become more popular among his bench for instance, are famous for disappointing mates. The simplest proof of this is the their appointers. remarkable increase in citations to dictionaries in Supreme Court opinions. A Scalia's prescriptions have long drawn fire recent study found that dictionary from legal academics. Some of their definitions were 14 times more likely to criticisms are repeated here by legal appear in the court's decisions five years academics Laurence Tribe and Ronald after Scalia's swearing-in than they were Dworkin: Scalia's originalism is too glib, five years before it. (The originalists, of because it doesn't distinguish between what course, like to dust off old dictionaries-Dr. the Constitution says and what its framers Johnson's 1785 edition for the Bill of expected it to do; too malleable, because it Rights, for instance.) This lexicographical merely substitutes the guesswork of trend won't cure the textualists' reputation historians for the musings of moral for stiltedness; reading some of these philosophers; too value-laden, because it opinions is like listening to the high-school imputes an anti-evolutionary purpose to the valedictorian who inevitably begins, I didn't
441 know what to say today, so I looked up the judges to live with adventurous Supreme word "commencement." Court decisions from earlier in the century. Not surprisingly, Scalia is no big fan of stare Even devotees of the Living Constitution decisis: In his dissents, he often calls upon like Tribe now declare their fidelity to text. the court to scour away layers of encrusted It's surprising that Tribe's essay doesn't precedent in order to get at the original discuss his textualist argument for the meaning of the underlying text. unconstitutionality of Colorado's Amendment 2, which forbade cities to enact How judges interpret statutes and anti-discrimination ordinances based on constitutions is, according to Scalia, a sexual orientation. Citing almost no cases, question utterly central to the existence of Tribe told the Supreme Court that the democratic government. That's hard to Colorado initiative violated the letter of the dispute. Yet, as Wood-a historian of early Equal Protection Clause because it denied America-shows in his essay, it's also a gays alone the protection of the anti- question we've been asking since the discrimination laws. Not an airtight colonial era, fitting the answer to the needs argument (all anti-discrimination laws pick of the moment. The revolution of 1776, for and choose among protected classes), but a instance, was fueled in part by the colonists' cleverly textualist one-and one that seems resentment of the overweening powers of to have helped convince a majority of the royal judges. As early as the 1780s, court to strike down the amendment, despite however, the pendulum had swung back, a lack of helpful precedent. (Scalia offered a and many Americans looked to the courts to different textualist reading of the Equal check the excesses of their legislators. To Protection Clause, grounding his arch Scalia, however, the idea that judicial power dissent firmly in majoritarianism-The responds to the demands of the time merely Court has mistaken a Kulturkampf for a fit proves that there have always been willful of spite.) judges who bend the law to their wishes.
So how often are judges actually as willful Seen from a historian's perspective, Scalia's as Scalia claims they are? It still sometimes view of the debate over the judiciary does happens. Last spring, the 9th U.S. Circuit look a bit Manichaean. But it would be a Court of Appeals found in the Due Process mistake to dismiss him for that reason. Clause a constitutional right to physician- Scalia's arguments have shaped the debate assisted suicide by relying on Plato, in our time; he has gone a long way toward Montaigne, Thomas More, and the Roper changing how judges interpret the letter of poll. Its decision, which Tribe defended the law. Not all the way-he has not yet before the court earlier this month, is almost succeeded in building a durable majority on certain to be reversed, probably on textualist the court. Does this mean that unpopular grounds. Most of the current textual individual rights are in peril? More likely, it infidelity, though, occurs because the simply goes to show-as do the exchanges doctrine of stare decisis-which dictates in this stimulating book-that there is more adherence to precedent-forces today's than one way to read a text.
442 "Courtroom Arguments"
The Wall Street Journal February 4, 1997 John 0. McGinnis
Of all the justices now sitting on the must be fixed at the time it was ratified. In Supreme Court, Antonin Scalia is perhaps recent years, however, the court has the most notorious-for his unrelenting discovered all sorts of rights and courtroom interrogations, his rhetorically prohibitions-concerning abortion, capital sharp judicial prose and (not least) his punishment and much else-that are uncompromisingly conservative ideas. It is nowhere to be found in the Constitution probably fair to say that most professional itself. Certain matters, Justice Scalia court-watchers do not share Justice Scalia's reminds us, the Framers expressly left to view of the world-or of the Constitution; legislatures. indeed, in much of the popular press he has become a kind of right-wing caricature. So The natural temptation of judges to follow we are lucky to have, in book form, an essay their own inclinations rather than the on legal interpretation by Justice Scalia, as dictates of a written text is strengthened, well as a critical review of his entire judicial Justice Scalia argues, by their legal training. corpus. Taken together they present a clearer In first-year law courses students are not picture of the justice and his ideas-and only invited to admire the judges who are help to explain why he incites so much the great architects of the common law but opposition in our current political culture. they are challenged, in Socratic dialogue with their professors, to create the legal rule In A Matter of Interpretation, Justice Scalia that they think will make for a better (i.e., defends the jurisprudence of originalism, "more just") society. It is hard to put aside which requires that judges interpret the the heady experience of working one's will Constitution in accordance with the meaning on the world and become instead a humble of its text at the time it was enacted. He servant of the Framers of the Constitution. contrasts originalism with the so-called Living Constitution, according to which One of the great merits of Justice Scalia's judges are permitted to update the essay, however, is to show that the Constitution to keep it in tune with their protection of our liberties depends on such view of society's current needs. faithful service. If the First Amendment is expanded beyond its historically rooted Justice Scalia recognizes that the "living" meaning to meet the felt necessities of approach gives courts the power to create today-e.g., if it is interpreted to protect not law, a power that originated, he shows, in a only political speech but the "speech" of, monarchical era when individuals were say, nude dancing, as it now does-there is much more willing to acquiesce in the no reason that it cannot be contracted to judgments of nondemocratic institutions. meet the necessities of tomorrow: The The U.S. Constitution, however, is the individual rights judges give they can also product of democratic principles by which take away. Indeed, once people recognize fundamental law is created by the people. that judges are inventing rights, they will The meaning of the Constitution, he argues, take steps to ensure the confirmation of
443 justices who will enforce only those rights Revival, Richard Brisbin shows us another with which the majority agrees, thereby reason why Justice Scalia is unpopular in making the actual set of rights in the certain precincts: In a time of value- Constitution irrelevant. relativism and militant identity politics, he is the leading exponent of Enlightenment A Matter of Interpretation includes beliefs. Justice Scalia's jurisprudence, Mr. comments on Justice Scalia's essay by four Brisbin shows, seeks to protect our property academics, including Laurence Tribe and from bureaucrats, to require that people be Ronald Dworkin, who argue that the broad treated as individuals rather than as language of many constitutional provisions, representatives of a class or race, and to use like the Equal Protection Clause, was the rule of law as a restraint against disorder intended to be the means by which judges and conflict. could express the best of contemporary moral values. In both his essay and his As an advocate of postmodernism and a response to his commentators, Justice Scalia proud egalitarian, Mr. Brisbin appears to projects a sanguine humor through a robust deplore these results, but he has the fairness prose enlivened by sly sallies against what to acknowledge that Justice Scalia is a he sees as the gaps in logic of the opposing tenacious exponent of the politics of reason camp. He is anything but the angry justice of that the Framers bequeathed to us through a popular myth. Our political discourse has written constitution. Since the romantic become so jejune that the natural habits of a rebellion against the politics of reason is powerful mind-sharp reasoning and responsible for most of this century's imaginative rhetoric-are mistaken for political disasters, we should be grateful that petulant temperament. there is at least one such exponent on the Supreme Court. Would that there were In Justice Scalia and the Conservative more.
444 JUSTICE BREYER'S ACTIVE LIBERTY "Consent of the Governed"
New York Times February 5, 2006 Kathleen Sullivan
On the first Monday in October, the United vote. And in each decision, Justice Stephen States Supreme Court opened its term under Breyer, appointed to the court in 1994 by the gavel of the new Chief Justice, John G. President Clinton, was among the dissenters. Roberts Jr., President Bush's first nominee In his clear and elegant new book, Active to the court. In promising that the justices he Liberty: Interpreting Our Democratic appoints "will not legislate from the bench Constitution, based on his 2004 Tanner and will strictly interpret the Constitution," lectures at Harvard University (where he Bush has faithfully recited the mantra that taught before becoming a federal judge), conservatives regularly use to signal their Breyer offers an extended reflection on why belief that the Supreme Court should defer he would have deferred to Congress and to democratic decision making. upheld the statute in each of these and other cases, as well as why he sometimes finds But in fact, conservative justices have statutes trumped by a constitutional right. frequently invoked the Constitution in recent years to strike down laws passed by For Breyer, the guiding theme in representatives of the people, especially constitutional interpretation, whether in statutes enacted by Congress. At last upholding statutes or enforcing rights, month's Senate Judiciary Committee should be enabling democracy "a form of hearings on the nomination of Samuel A. government in which all citizens share the Alito Jr., Democrats and Republicans agreed government's authority, participating in the on little except the view that the court creation of public policy." Such democratic presided over by Chief Justice William H. participation is what Breyer means by the Rehnquist had struck down too many of "active liberty" of the book's title. He takes their own statutes. his cue less from any particular provision of the Constitution than from the spirit of the For example, the Rehnquist court held document as a whole, and from Thomas invalid such popular legislation as the Gun Jefferson's reminder in the Declaration of Free School Zones Act, the Violence Independence that, in our system, Against Women Act and the Religious governments must derive "their just powers Freedom Restoration Act as intrusions by from the consent of the governed." the federal government upon the powers of the states. The Rehnquist court also voted to Yet the fair-minded, balanced and immunize state governments from federal dispassionate tone of Active Liberty cannot lawsuits on issues ranging from patent conceal its startling premise: that self- infringement to mismanagement of seaports professed conservatives who espouse to discrimination against public employees textualism, originalism and strict on the basis of disability or age. constructionism often produce results that in fact turn our democratic tradition on its Each of these cases was decided by a 5-to-4 head. It may come as a surprise to some
445 readers to encounter a Clinton nominee- individual rights. His two main examples are indeed, one of only six justices appointed to recent challenges to campaign finance the court by Democratic presidents in the regulation and race preferences in university past half-century-arguing so powerfully for admissions. "judicial modesty" and "judicial restraint" in the face of decisions by a court so long Breyer praises the court's 2003 decision in dominated by Republican appointees. McConnell v. FederalElection Commission, in which he joined a 5-to-4 majority The great strength of Active Liberty lies in upholding the McCain-Feingold law's limits Breyer's detailed application of his general on campaign advertisements focused on thesis to particular recent controversies. In special issues and on soft money the federalism cases mentioned above, for contributions. The statute was challenged on example, Breyer would have allowed First Amendment grounds. Conceding that Congress to regulate in matters like gun McCain-Feingold interferes with speech, possession and domestic violence under a Breyer argues that such laws also enhance broad reading of the federal commerce speech by democratizing "the influence that power. This, he explains, is because in money can bring to bear upon the electoral enacting such laws, "the public has process." In his view, they "facilitate a participated in the legislative process at the conversation among ordinary citizens that national level," and democratic participation will encourage their informed participation." is discouraged when Congress holds Seeing First Amendment interests on both "elaborate public hearings only to find its sides, he finds that enhancing the active legislative work nullified." liberty of speaking together justifies limiting the negative liberty of each of us speaking as Justices like Rehnquist and Sandra Day we please. O'Connor, who has held state legislative office, have argued that invalidating such Breyer likewise justifies upholding race federal legislation in fact shifts democratic preferences in university admissions on the decision making to the state or local level. ground that such policies enhance Breyer disagrees. In a passage candidly democracy. In 2003, in Grutter v. Bollinger, criticizing some of the court's recent he joined a 5-to-4 majority rejecting a decisions as "retrograde," he notes that a challenge to the University of Michigan Law number of decisions made in the name of School's use of racial criteria in admissions. states' rights "paradoxically threaten to shift He acknowledges that different theories of regulatory activity from the state and local equality competed in the case, but holds that to the federal level." By telling federal democratic values tipped the balance: "a officials they may not enlist county sheriffs racially diverse educational environment," to check the backgrounds of handgun by diversifying the leaders whom the purchasers, for instance, the court in effect university produces, helps to "facilitate the forces Congress to expand the "federal functioning of democracy" and foster enforcement bureaucracy" in order to "effective participation in today's diverse achieve the same ends. civil society." The overwhelming majority of examples in the book come out the same By the same token, Breyer writes way: in favor of the choices made by elected approvingly of court decisions that in his decision makers. view advance democratic values against claims that the statutes in question violate Breyer offers only a few examples that
446 would go the other way-invalidating the meaning are the only methods that can work of a political majority in recognition of prevent judges from descending into a constitutional right. He would favor, for hopeless subjectivity. On the current court, instance, Nike's right to publicly contest these arguments are sometimes echoed by allegations that it runs sweatshops; a radio Justice Clarence Thomas. station's right to broadcast an illegally intercepted recording of union leaders' Breyer offers a methodical rebuttal to such threats of violence; and taxpayers' right not arguments, taking them seriously but to finance public subsidies to religious contending that they are wrong. Clear rules schools. In each of these cases Breyer sees are often unfair, he argues, as when petty enforcement of the constitutional right as criminals get life sentences for stealing a serving to strengthen democracy-by golf club or a videotape under a regime of enhancing public debate or preventing "three strikes and you're out." And he debilitating religious divisiveness. suggests that textualism and originalism themselves inevitably involve subjective In this respect, Active Liberty echoes John judicial choices, since the views of the Hart Ely's 1980 masterwork, Democracy constitution's framers or the canons of and Distrust. Ely argued that judicial statutory construction so often point in more intervention in democratic outcomes could than one direction. be justified only if it would make democracy itself function better. His examples included While rejecting originalism and textualism, allowing oppressed minorities to gain Breyer eagerly embraces another representation and permitting dissent as a conservative tradition-that of jurists like way to help clear the channels of political Oliver Wendell Holmes, Louis Brandeis, change. Harlan F. Stone, Felix Frankfurter and Learned Hand, to whom he attributes "an Breyer goes farther than Ely, however, by attitude that hesitates to rely upon any single applying his theory to statutory as well as theory or grand view of law, of constitutional interpretation. He explains interpretation or of the Constitution," but why it is best to interpret statutes in the light relies instead upon a catholic combination of of testimony before Congress and legislative "language, history, tradition, precedent, history rather than their literal texts: "the purpose and consequences." interpretative process" should make "an effort to locate, and remain faithful to, the Now, with Samuel Alito succeeding the human purposes embodied in a statute." retiring Justice Sandra Day O'Connor, it remains to be seen who will stand at the Here Breyer takes on arguments made by center of the court in the future and Justice Antonin Scalia, who has articulated a command its vote when it is narrowly very different theory of adjudication. Scalia, divided. With Active Liberty, Stephen like Breyer a former law professor, set forth Breyer has offered a theory of democratic his principles for deciding cases in his 1997 pragmatism that is very likely to play a book, A Matter of Interpretation: Federal powerful role in deciding such Courts and the Law. There Scalia argued controversies. Everyone interested in the that the rule of law should be a law of rules, trajectory of the new Roberts court should and that reliance on literal text and original surely read it.
447 "Active Liberty: A Progressive Alternative to Textualism and Originalism?"
HarvardLaw Review June 2006 Michael W. McConnell
[Excerpt of a review of Justice Breyer's Active Liberty.]
approach, and Justice Breyer's discussion is no exception. As Justice Breyer describes . . . Many approaches to constitutional the approach, judges should "focus primarily interpretation have been employed or upon text, upon the Framers' original suggested over the years, some closer than expectations, narrowly conceived, and upon others to Justice Breyer's. I have already historical tradition" (p. 116). There are, noted the affinity between his approach and admittedly, different versions of textualism pragmatism. One approach with even and originalism, and this may be an accurate stronger similarities is the "representation- description of some. But it seems to me that reinforcement" idea proposed a generation Justice Breyer's definition misdescribes the ago by John Hart Ely. Ely thought the most prominent and attractive version, in Constitution leaves "the selection and three respects. accommodation of substantive values . . . almost entirely to the political process" and First, the definition omits the textualist- that the document is "overwhelmingly originalist commitment to deference to concerned, on the one hand, with procedural present-day enactments of the political fairness. . . , and on the other, with . . . branches. According to most practitioners of ensuring broad participation in the processes this view, the decisions of the people's and distributions of government." Ely's representatives enjoy a presumption of theory led him to praise progressive Warren constitutionality and should be displaced and Burger Court decisions on only when they are demonstrably reapportionment, voting rights, criminal inconsistent with prior constitutional procedure, and desegregation, while commitments manifested in text, history, criticizing other decisions that took and tradition. Thus, textualist and originalist substantive issues out of the political judges do not "focus primarily" on text and process, including Roe v. Wade. Justice history, but "primarily" on the right of the Breyer could have made his approach people to govern themselves through clearer by explaining how and why it differs democratic institutions. If textual and from these related approaches. Justice historical sources are indeterminate, as they Breyer compares his position to only one often are, judges are not free to resolve the alternative, which he calls "textualism" as it ambiguity in favor of their own preferences, applies to statutes and "originalism" as it but must defer to the decisions of the applies to the Constitution. This is the legislature. approach most closely associated with his colleague Justice Scalia. Much hostility to Second, I do not agree with Justice Breyer's textualism and originalism is based on an assumption that originalist analysis looks to unrealistically rigid characterization of the "narrowly conceived" purposes. The breadth
448 or specificity of historical meaning is itself a good for that which the Constitution or historical question, and some provisions, statute demands" (p. 116). such as those in the first section of the Fourteenth Amendment, may be very broad Advocates of this view thus argue that it is indeed. No less than any other approach, not an ideological position, but one that textualism-originalism understands that safeguards the distinction between law and constitutional principles are not frozen in politics. Textualist and originalist judges, at time. The task is to apply the moral-political least in principle, will on occasion vote to principles of the Constitution as faithfully as uphold laws they deeply disagree with, or to possible to the circumstances of our day. strike down laws they would favor, because Eighteenth-century Framers may not have the basis for constitutional judging (text, thought to apply the First Amendment to history, tradition, and settled precedent) is flag burning or the Fourth Amendment to independent of their own preferences. The thermal imaging, but that has not stopped same is not true, even in principle, of judges originalists from doing so. who believe their responsibility is to interpret the Constitution in light of their Third, Justice Breyer does not acknowledge own best sense of justice, equality, good the importance of precedent to any system consequences, or other normative concerns. of legal interpretation, including the one he criticizes. To be sure, judges in the This is not, of course, to say that every judge textualist-originalist camp differ among claiming to follow a textualist or originalist themselves regarding the weight to be given approach will do so in an objective manner. to precedent, just as is true of judges who Texts can be misread and history can be employ other approaches. In my opinion, the manipulated; judges are human; power doctrine of stare decisis is a weak link in corrupts; and judges may be tempted to twist constitutional theory across the board. All the sources to make the cases come out "the too often it is employed selectively and right way." The point is that in principle the arbitrarily. More on that below. But most textualist-originalist approach supplies an originalist judges recognize the need for a objective basis for judgment that does not consistent, coherent doctrine of respect for merely reflect the judge's own ideological settled precedent. As Hamilton wrote in The stance. And when errors are made, they can Federalist No. 78, following precedents is be identified as such, on the basis of "indispensable" to "avoid an arbitrary professional, and not merely ideological, discretion in the courts." criteria. Even in principle, constitutional interpretation based on the judge's own Presumably Justice Breyer targets the assessment of worthy purposes and textualist-originalist approach because of the propitious consequences lacks that prominence it has achieved in the last few objectivity. decades as both a justification for and an objective constraint on the power of judicial I hasten to add that few, if any, judges fit the review. As Justice Breyer explains, stereotype of disregarding all law in favor of exponents of textualism and originalism their own political preferences. Virtually all "hope that language, history, tradition, and judges recognize a certain degree of precedent will provide important safeguards constraint based on text, history, tradition, against a judge's confusing his or her and precedent, and give play to their own personal, undemocratic notion of what is values only within the remaining realm of
449 discretion. The real points of division relate 115), we must ask how the people manifest to how strictly or loosely judges read the their will. I suggest that they do so in three constraints, and whether in the remaining ways: by creating and amending the gray areas they defer to democratic Constitution, by developing constitutional judgment or give play to their own tradition, and by electing representatives ideological commitments. Justice Breyer who enact legislation. These correspond to devotes the last full chapter of his book to the three traditional bases for constitutional explaining why the textualist-originalist interpretation: fidelity to text, respect for approach is "unsatisfactory." He lodges five settled understandings, and deference to major criticisms of textualism and current democratic decisions. Far from being originalism: (1) as a historical matter, the an alternative to interpretation based on text, Framers "did not say specifically what history, tradition, precedent, and deference factors judges should take into account when to democratic decisionmaking, active liberty they interpret statutes or the Constitution" provides theoretical support. (p. 117); (2) nontextualist and nonoriginalist judging does not "necessarily open the door First, active liberty explains why it is to subjectivity" (p. 118); (3) "language and essential for judges to pay close attention to structure, history and tradition . . . often fail constitutional text and history. The theory of to provide objective guidance in . . . truly judicial review is not that judges are more difficult cases" (p. 124); (4) even if likely to make good decisions than the textualist or originalist methods of representatives of the people, but that the interpretation were "more likely to produce Constitution reflects the will of the people clear, workable legal rules. . . , the and sets boundaries for the governing advantages of legal rules can be overstated" authority of elected officials. The (p. 127); and (5) "textualist and originalist Constitution is a document with meaning doctrines may themselves produce seriously and purpose, and legitimate interpretation harmful consequences" (p. 129). These are must take its bearings from that meaning familiar points, extensively debated in the and purpose. To impute a meaning to the literature. What should interest us most, text that could not have been intended by the however, is how they connect to Justice drafters and ratifiers divorces the words of Breyer's affirmative position. What is the the Constitution from the source that gives connection between active liberty and text, them authority. Attention to longstanding history, tradition, and precedent? Justice practice and tradition, too, serves the end of Breyer passingly concedes that textualism active liberty, because practices that have and originalism are "logically consistent been adopted by many decentralized with emphasizing the Constitution's democratic decisionmakers over an extended democratic objectives" (pp. 116-17), but he period of time, up to and including the does not develop this theme. One would present, provide authoritative evidence of think that, from the perspective of active the popular will. And of course, for reasons liberty, the connection to the Constitution's already explained, judicial restraint-the democratic objectives would be the most principle that judges should defer to important issue. If judges committed to the democratic decisionmaking-follows from promotion of active liberty "insist[] on the principle of active liberty. interpretations, statutory as well as constitutional, that are consistent with the Active liberty could also help to provide a people's will," as Justice Breyer claims (p. consistent theory of precedent. For all the
450 attention to stare decisis in debates over they ever were controversial. Supreme Court nominees, political scientists tell us that, "[o]verwhelmingly, Supreme This overwhelming public acceptance Court justices are not influenced by constitutes a mode of popular ratification, landmark precedents with which they which gives these decisions legitimacy and disagree." Many of the Court's most authority under the theory of active liberty. celebrated decisions-Brown v. Board of Attention to the theory of active liberty thus Education, for example-involved the may lead in a direction Justice Breyer did overruling of prior precedents. But it is also not intend. He set out to describe and defend true that many decisions, even some that an approach to constitutional interpretation were questionable or controversial when that would not be bound by text, history, and rendered, have become part of the fabric of tradition, but also would not be based solely American life; it is inconceivable that they on whether the consequences "are good or would now be overruled. Examples might bad, in a particular judge's opinion" (p. include protection against sex discrimination 120). In many ways, the attempt is under the Equal Protection Clause, admirable. Justice Breyer's commitment to application of the Equal Protection Clause to judicial restraint, his respect for differing the federal government, expansion of the opinions, his modesty, his practicality, and Commerce Clause to permit federal his rejection of utopianism are all welcome regulation of intrastate commercial activity, additions to the public debate over the role or prohibition of gross malapportionment of of the judiciary. state legislative districts. The staying power of these holdings is not attributable to the But ultimately, his effort falls short. On the bare fact that the Supreme Court decided one hand, he asks judges to place greater them, for other decisions of equally long emphasis on effectuating the people's will. standing remain controversial and subject to On the other hand, he asks them to give reconsideration. The difference, I think, lies greater emphasis to purposes and in the fact of overwhelming public consequences than to text, history, and acceptance. Whatever may have been their tradition. But in republican government, original legal merit, these decisions have text, history, and tradition are the objective been accepted by the nation. Legislatures do manifestations of the people's will. Justice not pass laws in defiance of these decisions; Breyer's insistence that active liberty commentators do not attack their reasoning provides the linchpin for constitutional (except as an academic exercise, which interpretation, examined carefully, offers serves a different purpose than provoking more support for the approach he criticizes their reconsideration); people have forgotten than for the approach he espouses.
451 "How Should Judges Judge?"
Commonweal December 16, 2005 Bernard G. Prusak
Supreme Court Justice Stephen Breyer's the common good hardly make the papers. elegant little book [Active Liberty] has Breyer draws attention to these questions, gotten a lot of press. The reason for the buzz and so deserves praise. Nevertheless, he is that the view of constitutional needs to write another chapter for the second interpretation that he puts forth directly edition of this book. More precisely, he challenges the view of the Court's most needs to explain and justify what his view of outspoken conservative, Justice Antonin constitutional interpretation implies for the Scalia. Scalia has long argued that his view controversies that divide us. of how the Constitution should be interpreted, which he calls "originalism," is Ironically, the title of Breyer's book, Active most consistent with a democratic system of Liberty: Interpreting Our Democratic government and best protects against what Constitution, could serve Scalia just as well he takes to be "the main danger in judicial for a book of his own. Breyer and Scalia interpretation of the Constitution," namely, share a commitment to what the nineteenth- that "judges will mistake their own century French philosopher Benjamin predilections for the law" (see Antonin Constant called the "liberty of the ancients." Scalia, Originalism. The Lesser Evil, In Breyer's definition, it is "the freedom of University of Cincinnati Law Review 57/3, the individual citizen to participate in the 1989). "Originalists" hold that the meaning government and thereby to share with others of the Constitution should be understood as the right to make or to control the nation's fixed. So, for example, the amendments to public acts"-hence Breyer's term "active the Constitution mean what they meant liberty." Constant contrasted the liberty of when they were ratified, and no more. The the ancients with the liberty of the moderns. job of a judge is to resolve questions of law To be "modem," in Constant's lexicon, is to by determining and applying the original value first and foremost "the enjoyment of meaning of the constitutional text in security in private pleasures" (or, "peaceful question. Breyer presents a liberal reply to enjoyment of private independence"). From Scalia and others. this perspective, "liberty" is the name for "the guarantees accorded by institutions to There is much that is compelling in Breyer's these pleasures." These guarantees have argument, and it is to be hoped that his book traditionally included the rule of law; will be widely read. In the end, though, it is freedom of expression, association, and difficult to escape the impression that he has religion; and property and voting rights. made matters too easy for himself. Breyer mostly ignores here the "culture war" Neither Breyer nor Scalia is in the least controversies like abortion and gay rights opposed to modem liberty in this sense. that currently dominate public discourse Instead, they both acknowledge that the about the Court. In a way, this is all for the Constitution guarantees individual rights. better. With all the Sturm und Drang over Both also want to maximize the questions of individual rights, questions of opportunities for the people to rule
452 themselves, that is, to exercise ancient or constitutional values or purposes "limit active liberty. Where they part ways is on interpretive possibilities." He also disagrees the means to this end. To advance active with Scalia about the "main danger" to be liberty, Scalia wants judges to limit feared in interpreting the Constitution. For themselves to protecting the rights Breyer, this danger is interpreting the unambiguously articulated in the Constitution in such a way that it no longer Constitution and leave all else to the will of "helps to resolve problems related to modern the people as expressed by legislators and government"-thus "we the people" are not other elected officials. In his estimation, served here and now. originalism best serves this end. To advance active liberty, Breyer wants judges to read Basically, Breyer's book can be seen as a the Constitution in light of what he takes to development of his impassioned dissent in a be the "basic constitutional purpose: 2002 federalism case, Federal Maritime creating and maintaining democratic Commission v. South Carolina State Ports decision-making institutions." In his Authority. He also shows the implications of estimation, originalism in fact risks his view of constitutional interpretation for "undermin[ing] the Constitution's efforts to campaign-finance reform and affirmative create a framework for democratic action, among other disputed questions. government" by "placing weight upon Still, his case against originalism and for his eighteenth-century details to the point at own view is clearest and most compelling in which it becomes difficult for a twenty-first- his discussion of federalism, the proper century court to apply the document's division of powers among the federal and underlying values." Countering originalism, state authorities. Breyer claims that judges "should recognize that the Constitution will apply to 'new The opinion of the Court in Federal subject matter . . . with which the framers Maritime was written by Justice Clarence were not familiar."' The job of the judge Thomas, another Originalist. The question then (quoting Learned Hand) is to before the Court was whether state "'reconstruct the past solution imaginatively sovereign immunity-in particular, in its setting and project the purposes which immunity from complaints by private inspired it."' In Pauline language, the letter parties-precludes federal agencies like the kills, but the spirit gives life; Breyer chooses Federal Maritime Commission (FMC) or, life. For him (to use Pauline language once say, the Environmental Protection Agency more) the Constitution is a covenant of a (EPA) from adjudicating a private party's free people. It is old, but always open to the complaint against a state. Under the new by virtue of its enduring values. Shipping Act, the FMC was granted the authority to investigate complaints of Thus stated, Breyer's view of constitutional violations of the Act. The agency decided to interpretation, exercised by unelected do so through an adjudicative process judges, seems almost to invite the danger somewhat similar to court proceedings. The that Scalia fears: that "judges will mistake Court ruled against the FMC. their own predilections for the law." Breyer agrees that judicial "subjectivity" is a What is interesting about this case is that the danger, but he vigorously disputes the Constitution says nothing one way or charge that rejecting literalism invites another about administrative adjudications. subjectivity, noting that the relevant For, as Thomas observes, "The framers, who
453 envisioned a limited federal government, the amendment beyond its plain meaning. could not have anticipated the vast growth More generally, times having changed since of the administrative state" and did not the eighteenth century, it is no wonder that anticipate administrative adjudications at all. an eighteenth-century text would not speak So what is the Originalist to do here? explicitly to all our questions. In such a case, originalism, strictly speaking, is useless. The Thomas invokes the rule of an 1890 case, judge cannot be an Originalist here because Hans v. Louisiana, that "the Constitution there is no text here to apply. Instead, the was not intended to 'rais[e] up' any judge must decide what basic purposes proceedings against the states that were moved the framers. In the end, this is what 'anomalous and unheard of when the Thomas does: he prioritizes the framers' fear Constitution was adopted."' He then notes of "encroachments by the federal "strong similarities" between administrative government on fundamental aspects of state adjudications and civil litigation. The sovereignty, such as sovereign immunity." Eleventh Amendment is the key But why should fear about an overbearing constitutional text in Thomas's argument. federal power in the eighteenth century rule This amendment, ratified in 1795, stipulates us in the twenty-first? Other purposes might that "the judicial power of the United States be claimed to be more central to the shall not be construed to extend to any Constitution, which is what Breyer claims. suit . . . commenced or prosecuted against one of the United States by citizens of Two sentences from Breyer's dissent nicely another state. . . ." From here, Thomas's summarize his argument in Active Liberty: reasoning to his conclusion can be expressed in a syllogism: There are strong similarities Even if those alive in the between administrative adjudications and eighteenth century did not civil litigation. Civil litigation by a private "anticipate the vast growth of the party against a state is unconstitutional administrative state," they did under the Eleventh Amendment. Therefore, write a Constitution designed to administrative adjudications by a private provide a framework for party against a state are unconstitutional government across the centuries, a under the Eleventh Amendment. framework that is flexible enough to meet modem needs. . . . An Decisions like Thomas's in this case raise overly restrictive judicial the question of whether originalism really interpretation of the Constitution's does protect against judicial subjectivity (or, structural constraints (unlike its as it is often called today, "judicial protections of certain basic activism"). One might wonder just how liberties) will undermine the strong the analogy is between civil litigation Constitution's own efforts to and administrative adjudications. Beside achieve its far more basic structural similarities, there are notable differences. aim, the creation of a Further, the text of the Eleventh Amendment representative form of government bears explicitly on "the judicial power of the capable of translating the people's United States," which executive-branch will into effective public action. agencies like the FMC do not exercise. It might then be considered strange that As Breyer also observes in his dissent, Thomas, an Originalist, extends the scope of restrictive interpretations of federal powers
454 threaten the common good. For such Since the late nineteenth century, the Court interpretations may undercut "many laws has recognized that the Due Process Clause designed to protect worker health and ''guarantees more than fair process," as safety," including the Clean Air Act, the former Chief Justice William Rehnquist Clean Water Act, the Toxic Substances wrote in Washington v. Glucksberg (1997). Control Act, and the Solid Waste Disposal In other words, it is settled law that the Act. Thomas's precise aim may be to roll clause is not only about legal process, but back the power of the federal government to about what is due to persons in our what it was before the New Deal-the aim democracy. But there, agreement more or of advocates of the so-called Constitution- less comes to an end. in-Exile. One way or the other, however, he cannot claim merely to be applying the For anti-originalists, what is protected by the Constitution in its original meaning. In the Due Process Clause is open to development Court's recent federalism cases, it is the as our understanding of what is essential to originalists who can be accused of being liberty evolves. From this perspective, the "activist judges." (That is a development Due Process Clause, because of the that senators should ask the current Supreme generality of its language, is unlike most of Court nominee, Judge Samuel A. Alito, the instructions and prescriptions that we about.) Still, to reiterate, Breyer needs to give in our daily lives. These instructions extend his argument. typically have a precise and limited purpose. For example, if I tell my students on Originalism has become the rallying cry for Monday to write a two-page paper for opposition to a series of disputed decisions Friday, the meaning of my utterance on since the 1960s over the regulation of Friday is the same as it was on Monday. contraception, abortion, and most recently, And it would be silly (if not homosexual relations. These decisions incomprehensible) for my students to claim include, most important, Griswold v. that its meaning had changed over the Connecticut (1965), Eisenstadt v. Baird course of the week. Yet, consider the (1972), Roe (1973), Carey v. Population maxim, "To thine own self be true." If I say Services International (1977), Planned it to somebody today, it is true that, at least Parenthoodof Southeastern Pennsylvania v. in a sense, its meaning will be the same Casey (1992), and Lawrence v. Texas thirty years from now as it is today. But I do (2003). What all these decisions have in not pretend to know what this maxim will common is that they find a right nowhere mean concretely for this person thirty years enumerated in the Constitution: to "marital from now, and it would be silly and in fact privacy," to decide "whether to bear or beget contradictory for me to insist that it must a child," to terminate a pregnancy, and to mean that she do with her life then exactly engage in intimate conduct with another what she should do with her life now. person of the same sex. Since Roe, these Similarly, according to the anti-originalists, rights have been justified under the Due it would be senseless for the Court to insist Process Clause of the Fourteenth that the Due Process Clause must mean Amendment, ratified in 1868, which concretely the same today as it did in 1868. prohibits a state from depriving "any person Further, to insist as much would run counter of life, liberty, or property, without due to the spirit of the amendment, which after process of law." all was incorporated into the Constitution in
455 order to spread what the preamble calls "the interpretive aid to more effective protection blessings of liberty." Because times have of ancient and modern liberty alike" changed since 1868, so should our (emphasis added). Yet he does not explain understanding of what is due to persons in how or why prioritizing "the Constitution's our democracy. In Justice Anthony democratic objective" would result in the Kennedy's words in Lawrence, it must now protection of "modern liberty," that is, be recognized that "liberty presumes an freedom from government regulation. To the autonomy of self that includes" not only contrary, it may seem that giving priority to "freedom of thought, belief, expression," as the Constitution's democratic objective has traditionally been acknowledged, but would mean a reluctance to extend ''certain intimate conduct," which has come individual rights beyond those enumerated to be realized only over the past half- in the Constitution. Breyer also writes that, century. "from a historical perspective, one can reasonably view the Constitution as focusing By contrast, for originalists, the claim that upon active liberty, both as important in what is protected by the Due Process Clause itself and as a partial means to help secure is open to development as "our" individual (modem) freedom" (emphasis understanding of what is essential to liberty added). But again, how would promoting evolves runs counter to the spirit of self- "active liberty"-that is, the liberty of the government in a representative democracy. ancients-serve as a means to help secure In his dissent in Casey, Scalia founds his modem liberty? There are possible answers opposition to recognizing a right to abortion to this question-it may be argued, for on "two simple facts: (1) the Constitution example, that refusing to recognize the right says absolutely nothing about it, and (2) the of gay persons to have sexually intimate longstanding traditions of American society relationships demeans and disenfranchises have permitted it to be legally proscribed." these persons-but Breyer does not give Accordingly, "The states may, if they wish, any. That is a shame because these answers permit abortion on demand," but they are need both elaboration and case-by-case not required to do so under the terms of the evaluation. Constitution. Instead, he holds that the question of the permissibility of abortion The legal philosopher Joel Feinberg ought "to be resolved like most important observed some years ago that originalism questions in our democracy: by citizens seems to imply "a deep skepticism about the trying to persuade one another and then existence of moral rights." For originalists voting." refuse to recognize the existence of rights not explicitly articulated in the Constitution, On the questions of abortion and gay rights as if there were nothing outside of the text. (think gay marriage), a strong case can be This is ironic because, judging by the made that it is Scalia, not Breyer, who is the Declaration of Independence, the founding defender and advocate of "active liberty." fathers and framers of the Constitution (Breyer voted with the majority in themselves firmly believed that persons Lawrence.) For it is Scalia who holds that possess moral rights before the institution of "we the people" ought to have the right here government and its codification in a to decide what should and should not be constitution. For the Declaration holds it to legal. Breyer claims to find "in the be self-evident that government is instituted Constitution's democratic objective . . . a in order to secure, among other unnamed source of judicial authority and an rights, the inalienable rights of life, liberty, 456 and the pursuit of happiness. It would then of human life." Here a deep skepticism make sense to read the Constitution, in about truth is made to found our rights in particular the Ninth Amendment, as seeking general and the right to terminate a to protect our rights whether they are named pregnancy in particular. So a suggestion: or not. (The Ninth Amendment reads: "The Maybe what is needed to bring peace, or at enumeration in the Constitution, of certain least civility, to our culture wars is that our rights, shall not be construed to deny or jurists become more philosophical again. disparage others retained by the people.") It We do not want to be ruled by philosopher- can further be observed, though, that the kings, but we should want our Supreme Court's liberals and libertarians seem to Court justices to be able to argue in the share a similar skepticism. Consider the highest terms. We should also anticipate the claim in the opinion of the Court in Casey second, expanded edition of Breyer's book. that "at the heart of liberty is the right to define one's own concept of existence, of Bernard G. Prusak is a Gallen Fellow in the meaning, of the universe, and of the mystery Humanities at Villanova University.
457 "The Philosopher-Justice"
The New Republic September 19, 2005 Cass R. Sunstein
I. commitment to democratic self-rule. Throughout the nation's history, many of the William H. Rehnquist has died, and John G. most prominent constitutional theorists have Roberts Jr. has been nominated to replace tried to resolve this apparent contradiction. him, and another nomination is still to come: They have argued that if the Court acts in a it is an understatement to say that the certain way, it can coexist comfortably with Supreme Court is in a period of transition. democracy after all.... The change of personnel is taking place among conservatives of one kind or another, according to the wishes of a deeply conservative president. Yet all this must not A . . . theory of constitutional interpretation, obscure the fact that conservatism on the espoused most prominently by Scalia and Court is about to encounter a serious also favored by Clarence Thomas, is known challenge. With this small but important as "originalism." Originalists believe that book, [Active Liberty,] Justice Stephen the Constitution should be interpreted to Breyer emerges as a leading theorist of mean exactly what it meant at the time that constitutional interpretation on the highest it was ratified. If the Equal Protection bench in the land. At last there has appeared Clause was originally understood to permit a direct and substantial challenge, within the sex discrimination, then courts should Court, to the constitutional thought of permit sex discrimination. If the Second Justice Antonin Scalia, who has long offered Amendment was originally understood to an ambitious and forceful account about forbid gun control, then courts should forbid how to approach the Constitution and laws gun control. When President Bush praises of the United States. For the next decade, I ''strict construction," many people take him think, much of the intellectual battle, within to be embracing originalism. Originalists the Court and within the nation, will have to such as Scalia reject Thayer's approach, be conducted with close reference to the because they are quite prepared to strike conflict between the starkly different down legislation that violates the original constitutional theories of Scalia and Breyer. understanding. They are mystified by Ely's The impact of President Bush's idea of "representation-reinforcing" judicial appointments notwithstanding, liberalism is review. But originalists, too, prize finally, at the level of ideas, pushing back. democracy. They emphasize that the Constitution was ratified by "We the Breyer and Scalia begin with a shared People," who have sovereign authority, and appreciation of the fact that the justices of they want to limit the discretion of federal the Supreme Court are unelected and serve judges, who are after all not elected. It is for life. Since the Court has the power to true that those who ratified the Constitution invalidate the decisions of the elected are long dead, and this point creates a branches, it is not so easy to reconcile the substantial problem for originalists; but magnitude of its power with the national democracy is nonetheless central to
458 originalist thinking about constitutional law. of intellectual equality which forms the glory and power of a people." But Constant As a professor at Harvard Law School, also prized negative liberty, meaning Stephen Breyer specialized in administrative "individual independence" from government law and regulatory policy. Constitutional authority. In Constant's view, which Breyer law was not his field. As a member of the firmly endorses, it is necessary to have both Supreme Court, however, Breyer has forms of freedom, and thus "to combine the gradually been developing a distinctive two together." constitutional approach of his own, one that can be seen as directly responsive to Scalia ... Breyer claims that the Constitution can and originalism. This book announces and be viewed "as focusing upon active liberty." develops that theory. In so doing, it He thinks that constitutional interpretation constitutes a major challenge not only to should be undertaken with close reference to Scalia's principles and methods, but also to that central constitutional purpose. In his the legacy of Rehnquist, with his strongly account, the Warren Court appreciated conservative inclinations. Appearing when active liberty, and it attempted to make that the Supreme Court is in transition, and when form of liberty more real for all Americans. the national debate about the Court and the The Rehnquist Court, by contrast, may have Constitution has degenerated into a war of pushed the pendulum too far back in the slogans, Breyer's timing is uncanny. other direction.
Breyer's major theme is "active liberty," So Breyer believes that an appreciation of which he associates with the right of self- the idea of active liberty has concrete governance. In his own judicial work, implications for a wide range of modern Breyer might indeed be seen as the most disputes, and the second part of his book consistently democratic member of the traces those implications. He begins with Rehnquist Court: among its nine members, free speech. An obvious question is whether he has shown the highest percentage of the Court should be hostile or receptive to votes to uphold acts of Congress and to campaign finance reform. With his eye defer to the decisions of the executive directly on the democratic ball, Breyer branch. But Breyer ... does not believe that suggests that if we focus on the the Court should uphold legislation Constitution's basic structural objective, whenever the Constitution is unclear. . . . "participatory self-government," then we Breyer wants the courts to take an will be receptive to restrictions on campaign aggressive role in some areas, above all in contributions. A central reason is that such order to protect democratic governance. restrictions "seek to democratize the influence that money can bring to bear upon His book comes in three parts. The first the electoral process." He thinks that some builds on Benjamin Constant's famous of his colleagues, most prominently distinction between the liberty of the Rehnquist and Scalia, have been mistaken to ancients and the liberty of the modems. The invoke negative liberty as a rigid barrier to liberty of the ancients involves "active campaign finance restrictions. In the same liberty"--the right to share in the exercise of vein, he insists that the principle of free sovereign power. Quoting Constant, Breyer speech, regarded from the standpoint of refers to the hope that the sharing of that active liberty, gives special protection to power would "ennoble" the people's political speech, and significantly less "thoughts and establish among them a kind protection to commercial advertising. He
459 criticizes his colleagues on the Court for ''premature judicial decision" that would protecting advertising with such risk "short-circuiting, or pre-empting, the aggressiveness in recent years. Breyer's 'conversational' law-making process." interpretation of freedom of speech Hence his plea is for narrow and careful emphasizes democratic self-government judicial rulings that do not lay out long-term above all. solutions. In Breyer's view, such rulings serve active liberty, because they refuse to Affirmative action might seem to have little "limit legislative options in ways now to do with active liberty. At first glance, it unforeseeable." By its very nature, a narrow poses a conflict between the ideal of color- ruling is unlikely to "interfere with any blindness and what Breyer calls a "narrowly ongoing democratic policy debate." His purposive" understanding of the Equal argument here is important, because other Protection Clause, one that emphasizes the members of the Court, notably Scalia, have historical mistreatment of African objected to such narrow rulings on the Americans. Directly disagreeing with Scalia ground that they leave too much uncertainty and Rehnquist, Breyer tends toward the for the future. For Breyer, such uncertainty narrowly purposive approach. But he also may be a friend of democracy. contends that in permitting affirmative action at educational institutions, the Court ... Breyer agrees that the federal system fits has been directly concerned with democratic with his general theme, since that system self-government. The reason is plain: "some makes "it easier for citizens to hold form of affirmative action" is "necessary to government officials accountable" and maintain a well-functioning participatory brings "government closer to home"; but he democracy." Breyer points to the Court's strongly objects to the Rehnquist Court's emphasis on the role of broad access to federalism decisions. With respect to education in "sustaining our political and congressional enactments, he observes that cultural heritage" and in promoting diverse "the public has participated in the legislative leadership. Underlining those points, Breyer process at the national level," and hence the argues that the Court's decision to permit principle of active liberty calls for deference affirmative action made a direct appeal "to by the Court. Breyer's special target is the principles of solidarity, to principles of anti-commandeering principle. Speaking in fraternity, to principles of active liberty." In pragmatic terms, Breyer thinks that this Breyer's view, it should be no surprise that prohibition precludes valuable initiatives to the Court selected an interpretation of the protect against terrorism, environmental Equal Protection Clause that would promote, degradation, and natural disasters- rather than undermine, the operation of initiatives in which, for example, the democracy. national government requires state officials to ensure compliance with federal standards. With respect to privacy, Breyer's emphasis is on the novelty of new technologies and Breyer also contends that an understanding the rise of unanticipated questions about of active liberty can inform more technical how to balance law enforcement needs debates. Consider a prominent example. against the interest in keeping personal Should courts rely only on a statute's literal information private. Owing to the novelty text, or should they place an emphasis and the difficulty of those problems, Breyer instead "on statutory purpose and argues for "a special degree of judicial congressional intent"? Sharply disagreeing modesty and caution." He wants to avoid a with the more textually oriented Scalia, 460 Breyer favors purpose and intent. He For a start, originalist judges claim to follow emphasizes that a purpose-based approach history, but they cannot easily demonstrate asks courts to consider the goals of "the that history favors their preferred method. 'reasonable Member of Congress'-a legal The Constitution does not say that it should fiction that applies, for example, even when be interpreted to mean what it meant when it Congress did not in fact consider a particular was ratified. The document itself enshrines problem." Breyer thinks that this approach, no particular theory of interpretation. And if as compared with a single-minded focus on originalism cannot be defended by reference the literal text, will tend to make the law to the intentions and the understandings of more sensible. He also contends that it the Framers, Breyer asks, in what way can it "helps to implement the public's will and is be defended, "other than in an appeal to therefore consistent with the Constitution's consequences?" He knows that some of the democratic purpose." Breyer concludes that most sophisticated originalists ultimately an emphasis on legislative purpose "means argue that their approach will have good that laws will work better for the people they consequences-for example, by stabilizing are presently meant to affect. Law is tied to the law and deterring judges from imposing life; and a failure to understand how a their own views. So even Breyer's statute is so tied can undermine the very originalist adversaries are "consequentialist human activity that the law seeks to in an important sense." (Rehnquist himself benefit." never squarely endorsed originalism, but his votes generally lined up with his originalist The third part of Breyer's book tackles colleagues. His principles of constitutional broader questions of interpretive theory and interpretation will remain unspecified.) directly engages Scalia's contrary view. Breyer emphasizes that he means to draw Breyer also argues that his own approach attention to two considerations above all: does not at all leave courts at sea, for he, purposes and consequences. Constitutional too, insists that judges must take account of provisions, he thinks, have "certain basic "the legal precedents, rules, standards, purposes," and they should be understood in practices, and institutional understanding light of those purposes and the broader that a decision will affect." Those who focus democratic goals that infuse the Constitution on consequences will not favor frequent or as a whole. In addition, consequences are dramatic legal change, simply because ''an important yardstick to ensure a given stability is important. But the important interpretation's faithfulness to these point is this: to oppose textualism and democratic purposes." Breyer is fully aware originalism is hardly to oppose the careful that many people, including Scalia and consideration of the Constitution and Thomas, are drawn to "textualism" and its statutory law. One of the many services close cousin "originalism"-approaches that performed by Breyer's book is that it should argue in favor of close attention to the make it difficult, or even impossible, for meaning of legal terms at the precise time critics to caricature the anti-originalist they were enacted. He knows that such position. Moreover, textualism and people are likely to think that his own originalism also cannot avoid the problem of approach is an invitation for open-ended judicial discretion. Their methods do not judicial lawmaking, in a way that provide quite the unmediated and value-free compromises his own democratic inquiry that they imagine. "Which historical aspirations. But he has several responses to account shall we use? Which tradition shall such criticisms. we apply?" In the end, Breyer contends that 461 the real problem with textualism and the constraints imposed by text, but Breyer originalism is that they "may themselves underplays the risk that any judgments about produce seriously harmful consequences- "reasonableness" will be the judges' own, in outweighing whatever risks of subjectivity a way that disserves democracy itself. We or uncertainty are inherent in other may agree that any theory of interpretation approaches." His ultimate goal is "a has to be defended in terms of its framework for democratic government" that consequences; but for interpreting statutes it will prove workable over time, and he is not at all clear that a purpose-based believes that his kind of purposive approach, approach, focusing on consequences in rooted in active liberty, is most likely to particular cases, is preferable to a text-based promote that goal. approach, which asks judges to think little or not at all about consequences. Textualism II. might well lead to better results, all things considered. None of this means that Scalia's This is a brisk, lucid, and energetic book, approach is necessarily superior to Breyer's. written with conviction and offering a It means only that Breyer has not adequately central argument that is at once provocative engaged the possibility that, on his own and appealing. It is not usual for a member consequentialist grounds, and with an eye on of the Supreme Court to attempt to set out a democratic goals, textualism in the general approach to his job; and Breyer's interpretation of ordinary statutes might be effort must be ranked among the most better than an approach that explores impressive of such efforts in the nation's purposes. long history. For that reason alone, the appearance of his book is an event of considerable importance. Scalia has long been traveling the country, making the Certainly Breyer does not try to argue, in argument on behalf of originalism and originalist fashion, that the actual drafters contending that there is no real alternative to and ratifiers of the Constitution wanted to it. Breyer demonstrates that on this point allow campaign finance reform, restrictions Scalia is wrong. Moreover, he does so in a on advertising, affirmative action programs, way that is unfailingly civil and generous to and federal commandeering of state those who disagree with him-and thus government. He argues instead that the idea provides a model for how respectful of active liberty, which animates the argument might occur, even on a bench that Constitution, helps to justify these has become polarized by unusually hot judgments. But exactly what kind of rhetoric. argument is that? The Framers of the Constitution also placed a high premium on ... The textualist Scalia ridicules the resort "domestic tranquility," to which the to purposes, which, in his view, are often preamble explicitly refers. Would it be right made up by willful judges. He believes that to say that because domestic tranquility is a an emphasis on text, which is what after all central goal of the document, the president is has been enacted, promotes democratic permitted to ban dangerous speech? Or that, responsibility, and also helps to discipline if affirmative action threatens to divide the the judiciary. Textualism itself might easily races in a way that compromises be defended with reference to the principle "tranquility," color-blindness is the right of active liberty. Perhaps Scalia overstates principle after all? In any event, Breyer
462 emphasizes that the Constitution attempts to risk that under-qualified people will be protect negative liberty, too. Why shouldn't placed in important positions. If those are a ban on campaign finance restrictions be bad consequences, perhaps we will oppose seen to follow from that goal? If the answer affirmative action programs. An emphasis lies in the idea of active liberty, why on consequences as such is only a start. To shouldn't we see campaign finance be sure, Breyer is not concerned with restrictions as offending, at once, both forms consequences alone; he wants to understand of liberty? them with close reference to purposes, above all "active liberty." But as I have suggested, that idea, taken in the abstract, is compatible with a range of different Recall that Breyer does not claim that approaches to constitutional law. It does not legislative "purpose" is always something mandate Breyer's own approach. that can simply be found. "Purpose" is sometimes what judges attribute to the None of this means that Breyer is wrong. ... legislature, based on their own conception of The problem is that he underplays the what reasonable legislators would mean to inevitable role of judicial judgments in do. If this is true for the purposes of characterizing purposes and in assessing individual statutes, it is also true for the consequences. But no approach to purposes of the Constitution as well. When interpretation can avoid the interpreter's Breyer asserts that the "basic" purpose of own judgments. A fuller account than the Constitution is to protect active liberty, Breyer has given here would specify the so as to produce concrete conclusions on underlying judgments and attempt to defend disputed questions, his own judgments about them in far more detail. Such an account the goals of a reasonable constitution-maker would have to show that courts are both are playing a central role in his assertion. willing and able to proceed as Breyer Fortunately, Breyer's own judgments are suggests; and it would also have to show reasonable; but he underplays the extent to that as compared with alternative which they are his own. possibilities, a democracy-centered approach of his preferred sort really would promote The same point bears on Breyer's self-government, properly understood. enthusiasm for an inquiry into consequences. Consequences do matter; but Active Liberty is a sketch, not a fully some of the time it is impossible to assess developed argument. But even sketches can consequences without reference to disputed change the way we look at things. With its questions of value. Consider the question of modesty, its self-conscious pragmatism, and affirmative action, and suppose, rightly, that its emphasis on the centrality of democratic the text of the Constitution could be goals, Stephen Breyer's approach provides understood, but need not be understood, to an eminently reasonable foundation for require color-blindness. If we care about constitutional law. It is an approach that consequences, will we accept the color- deserves a place of honor in national blindness principle or not? Suppose we debates, now and in the future, about the believe that affirmative action programs role of the Supreme Court in American life. create racial divisiveness and increase the
463 COMMENTARY ON THEORIES OFINTERPRETATION
"Justice Grover Versus Justice Oscar: Scalia and Breyer Sell Very Different Constitutional Worldviews"
Slate December 6, 2006 Dahlia Lithwick
If judicial confirmation hearings in the striving to connect to the world, Scalia is Senate were one-tenth as illuminating as last happiest in his head. Throughout the debate, night's debate between Supreme Court Breyer continues to measure, aloud, whether Justices Antonin Scalia and Stephen Breyer he and Scalia are "making progress." Scalia at the Capitol Hilton, there would be a laughs that Breyer's hopes for the evening booming market for Supreme Court action are too high. figurines. Co-sponsored by the American Constitution Society and the Federalist Scalia is charming and-as ever-riotously Society (the Birkenstocks and bow ties of funny. For each time Breyer says his own the legal universe), the debate has Breyer constitutional approach is "complicated" or and Scalia whacking their way through the "hard," Scalia retorts that his is "easy as pie" possibility of "justice," the limitations of and a "piece of cake." And if this debate constitutional history, and, throughout the mirrors a marketplace of ideas, Breyer will evening-the possibility of persuasion. make the sale through the earnest personal connection of a Wal-Mart greeter, while The justices agree more than they differ, and Scalia opts for the aloof certainty of the they agree about nothing so much as the Tiffany's salesman: "Sure, you can buy extent to which they agree. They agree in some other, cheaper constitutional theory, the majority of the cases they decide, and but really. Ew." they agree that "judicial activist" is a stupid label. They agree that religion cases are hard Each of the justices explains how he and that judicial minimalism is overrated. approaches a case: Breyer has six Still, when you're sitting close enough to see interpretive tools-text, history, tradition, that Suprenme Court justices actually wear precedent, the purpose of a statute, and the socks, their differences are stark. From the consequences. In his view, it's a mistake to moment he takes the stage, Justice Breyer ignore the last two. Scalia replies that to looks outward. He shifts in his seat look at either the purpose or the constantly to catch the eye of the moderator, consequence of a statute is to invite ABC's Jan Crawford Greenburg, and then to subjectivity and beg the question. make eye contact with individual audience members. When Scalia speaks, Breyer nods Scalia bristles when Crawford Greenburg and bobs. Justice Scalia turns inward, quotes back a line about the "living folding up his arms and gazing raptly into Constitution" being "idiotic." "You are the middle distance. As Breyer speaks, misquoting me," he says. "I was describing Scalia first smirks, then giggles, then sort of the argument in favor of the living erupts with a rebuttal, usually aimed right at Constitution-that it's a living organism that the tips of his shoes. Where Breyer is ever must grow or become brittle and snap." And
464 he can't resist adding, "That is idiotic." He Frenchman have an Italian accent?" observes that there is a difference between applying the Constitution to a changing Both justices agree the words activist judge world-to television and the Internet, say- are basically useless. "An insult," says and to "morphing" old ideas to mean Breyer. A "conclusory label," says Scalia. precisely their opposite. How could a Asked if he ever calls Breyer an activist, Constitution that clearly allowed for the Scalia quips: "I would never call him that to death penalty now explicitly prohibit it? his face." "That's the living Constitution I am talking about, and it's the one I wish would die." Breyer selects Brown v. Board of Education as a case that was criticized as activist but is Breyer points out that the constitutional today recognized as a correct application of language of "cruel and unusual" is not clear, the Equal Protection clause. It's an odd before chuckling, "I was making a lot more choice in light of the desegregation cases progress before." Breyer describes the job of argued at the court just this week. Brown's justices as patrolling the boundaries- indisputable "correctness" has, after all, making certain the legislature doesn't "go possibly laid the groundwork for its own too far" at the margins. The words of the demise. Constitution "don't explain themselves," he says. Scalia retorts that the Bill of Rights Both justices agree that Chief Justice John itself sets out the limitations on legislatures Roberts' affection for narrower, unanimous and that a majority set out these limitations cases is probably mistaken: says Scalia, "If when it ratified the Constitution. Those are you wanted to decide almost nothing at all the real boundaries, not the boundaries and decide the case on such a narrow ground invented by each new generation of jurists. that it will be of very little use to the bar in the future, you can always get nine votes." Breyer says that if the only thing that He notes that it helps the bar not at all to matters is historical truths from the time of have cases decided on narrow technicalities. the Constitution, "we should have nine Breyer agrees that you don't want nine votes historians on the court." Scalia says, "It's just to have nine votes. Scalia also disputes not my burden to prove originalism is Roberts' distaste for "boldness" in opinion perfect. It's just my burden to prove it's writing: "The law doesn't have to be dull," better than anything else." He adds that a he grins, explaining that he writes his court of nine historians sounds better than a dissents for the case books. "Originalism court of nine ethicists. used to be an orthodoxy," he sighs. "Now, there are only two certified originalists on The justices enter into a side skirmish over the court, myself and Justice Thomas." He the high court's religion jurisprudence-a waves his arm hopelessly at the 900 skirmish that launches Scalia into a delicious assembled lawyers. "I don't hope to impression of the Frenchman who described persuade you. It's too late for you guys." to him the difference between France and But he says he's still hoping to win over the America: "Justice Scalia," he minces, law students. "France is a country with 300 cheeses and two religions. The United States is a country Here is where Breyer reveals just how much with two cheeses and 300 religions." these men truly differ. Because, says he, he writes his dissents to persuade. His cell Breyer cracks up: "But why does the phone erupts here. He describes how after
465 finishing each dissent, he proclaims to his broad and deep, collegial and frank. And as wife that "this time it will really persuade we always knew from oral argument, there them." He laughs, explaining that over time, are miles and miles separating Scalia's that always changes to a hope that he'll elegantly simple interpretive worldview persuade them and then to regret that it from Breyer's murkier, more hopeful one. didn't. Scalia offers the view that nobody at Stephen Breyer's jurisprudential Grover- Supreme Court case conferences is sweet and optimistic and eager-to-please-is persuaded by the other justices. Breyer working the room, confident he'll sell us on thinks his colleagues' minds can be changed his constitutional theory, one lawyer at a with good arguments. time. And Antonin Scalia's constitutional Oscar the Grouch-frustrated and Breyer celebrates the benefits of the many misunderstood, yet somehow more lovable diverse and contrasting views at the high for it-doesn't even try to close the deal. He court. Scalia mourns the fact that they don't doesn't need us to vindicate him. He's all share Scalia's views. The discussion is confident history will do that.
466 "Alive and Kicking: Why No One Truly Believes in a Dead Constitution"
Slate August 29, 2005 Jack Balkin
We are all living constitutionalists now. But aspects of Social Security-go beyond the only some of us are willing to admit it. original understanding of federal power, not to mention most federal civil rights laws that The notion of a Constitution that evolves in protect women, racial and religious response to changing conditions didn't start minorities, and the disabled from private with the Warren Court of the 1960s; it began discrimination. Independent federal agencies at the founding itself. The framers expected like the Federal Reserve Board, the Federal that their language, not their intentions, Trade Commission, and the Federal would control future generations. They Communications Commission would all be created, in John Marshall's words, a unconstitutional under the original "constitution, intended to endure for ages to understanding of the Constitution. come, and consequently, to be adapted to the Presidential authority would be vastly various crises of human affairs." curtailed-including all the powers that the Bush administration regularly touts. Indeed, The specific metaphor of a living, evolving most of the Bush administration's policy Constitution arose in the 1920s to explain goals-from No Child Left Behind to how a broad view of federal power that national tort reform-would be beyond came with World War I (and later, the New federal power. Deal) was consistent with the American constitutional tradition. The Constitution's Conversely, a vast number of civil-liberties words, Justice Oliver Wendell Holmes Jr. guarantees we now expect from our wrote in 1920, "called into life a being" Constitution have no basis in the original whose "development . . . could not have understanding. If you reject the living been foreseen completely by the most gifted Constitution, you also reject constitutional of its begetters." Hence we must interpret guarantees of equality for women, not to our Constitution "in the light of our whole mention Brown v. Board of Education and experience and not merely in that of what Loving v. Virginia, which struck down laws was said a hundred years ago." banning interracial marriage. Liberals and conservatives alike would be discomfited. Holmes was right: The living Constitution is The original understanding cannot explain central to the American constitutional why the Constitution would limit race- tradition, so central that even its loudest conscious affirmative action by the federal critics actually believe in it. Many government, nor does it justify the current Americans fail to realize how much of our scope of executive power. current law and institutions are inconsistent with the original expectations of the Even the Supreme Court's two professed founding generation. A host of federal laws originalists, Justices Antonin Scalia and securing the environment, protecting Clarence Thomas, believe in the living workers and consumers-even central Constitution. Scalia's concurrence in Raich
467 v. Ashcroft-this term's medicinal- that fidelity to law and a written marijuana case-demonstrates that he long Constitution requires fidelity to the original ago signed on to the idea of a flexible and understanding. Anything else is not legal broad national power that came with the interpretation and is per se illegitimate. But New Deal. And Thomas argues for First a vast number of existing statutes and Amendment protections far broader in scope constitutional doctrines are inconsistent with than the framers would have dreamed of. the original understanding. Why are any of Both Justices joined the majority in Bush v. them law? Gore, which relied on Warren Court precedents securing voting rights under the Some originalists argue that we should 14th Amendment. There was just one tiny respect non-originalist precedents only if originalist problem with that logic: The lots of people have relied on them. This framers and ratifiers of the 14 th Amendment doesn't explain why those precedents are didn't think it applied to voting. legitimate interpretations according to the theory; indeed, it suggests that legitimacy Nobody, and I mean nobody, whether comes from public acceptance of the Democrat or Republican, really wants to live Supreme Court's decisions, not from fidelity under the Constitution according to the to original understanding. Moreover, this original understanding once they truly strategy allows originalists to pick and understand what that entails. Calls for a choose which rulings to keep, based on their return to the framers' understandings are a judgments of when reliance is real or political slogan, not a serious theory of justified. So, strict scrutiny for federal constitutional decision-making. affirmative action stays, but the right of privacy goes. We'll keep presidential power In fact, the contemporary movement for on steroids, thank you, but jettison the originalism began as a conservative political Endangered Species Act. slogan used to attack the Warren Court's decisions on race and criminal procedure. It But there's a more important problem here: mutated from a concern with the original Non-originalist decisions that guarantee race intentions of the framers, to the intentions of and sex equality, that protect free speech and the ratifiers, to how the public would have the rights of criminal defendants, and that understood and applied the Constitution's give Congress power to protect the words at the time they were adopted. environment and secure equal civil rights are not unfortunate errors that we are just stuck Today's originalism is hauled out to attack with because of "reliance." They are some decisions that judges and politicians don't of our country's proudest achievements. like. But when it comes to decisions they do There's something deeply wrong with a like, or would be embarrassed to disavow, theory of constitutional interpretation that the same judges and politicians quickly treats some of the key civil rights decisions change the subject. In practice contemporary of the 2 0 th century as mistakes that we are originalists pick and choose when they will stuck with. For if decisions like Brown, demand fidelity to original understanding. Loving, Craig v. Boren, and Griswold v. Sometimes they even mangle the history to Connecticut are mistakes, we should read get to results they like. them as narrowly as possible and overturn them at the first opportunity. But that's not Originalists make two standard objections to how Americans regard these decisions. They the idea of a living Constitution. The first is are evidence of our gradual progress as a
468 nation. They are what make us a country blacks; both have pushed hard for ever- conceived in liberty and dedicated to the greater protection of commercial speech proposition that all people are created equal. without any evidence of the original understandings of 1791. If we want The great irony is that living examples of judges just making stuff up to constitutionalism rests on much firmer satisfy their personal predilections, so-called jurisprudential foundations. Originalists are originalist judges offer plenty of examples. right that the Constitution is binding law, but they confuse the constitutional text-which Originalists are right: Constraining judges is is binding-with original understanding and important. But originalists are looking in the original intentions, which are not. A living wrong place. Lower courts are strongly Constitution requires that judges faithfully constrained by previous precedent. apply the constitutional text, given the Constraints on the Supreme Court come meanings the words had when they were from two sources-the professional legal first enacted, applying those words to culture and constitutional structure. today's circumstances. Original meaning does not mean original expected application. Legal culture demands that arguments For example, the Constitution bans cruel and depend on the familiar categories of text, unusual punishments. But the application of history, precedent, and structure. These the concepts of "cruel and unusual" must be modalities allow considerable leeway, but that of our own day, not 1791. Living they also genuinely constrain. Even though constitutionalists draw upon precedent, the Supreme Court chooses the most structure, and the country's history to flesh controversial cases, many, if not most, of its out the meaning of the text. They properly decisions are unanimous or include both regard all of these as legitimate sources of liberals and conservatives in the majority. interpretation. In fact, most people who call themselves originalists agree; even they The second, and more important, don't regard original understanding as background constraint on the Supreme Court controlling in all cases. comes from the constitutional structures of American government. Because the court is Because the basic jurisprudential claim that a multimember body, centrist judges in each original understanding is the only legitimate generation, like Lewis Powell or Sandra Day method of interpretation is overstated, O'Connor, determine the path of doctrine, originalists usually make a second, more especially in the most controversial areas. In pragmatic argument: A living Constitution addition, new Supreme Court appointments offers insufficient constraints on judicial tend to respond to the vector sum of the power. The irony of this charge is that in political forces at play at the time of practice originalism doesn't provide any confirmation. In fact, political scientists greater constraint. As we've seen, originalist have shown repeatedly that the Supreme judges pick and choose when to invoke Court never strays too far too long from the original understanding and when to rely on center of the national political coalition, and existing precedents they like. Justices Scalia when it does, new appointments tend to push and Thomas, for example, haven't it back in line. The Supreme Court held out acknowledged in their opinions that the against Franklin Roosevelt's New Deal for a Congress that passed the 14th Amendment few years but eventually gave in. The New also engaged in affirmative action for Deal settlement, which Justice Scalia
469 himself believes in, came from nobler, but because the American people overwhelming public sentiment in the '20s have demanded it. When social movements and '30s that the Constitution had to be like the civil rights movement or the interpreted in light of the needs of the time; feminist movement convince the center of that ours was a living Constitution. the country that their claims are just, the court usually comes around. Sometimes it Since the nation began, critics of the gets ahead of the center of public opinion, Supreme Court have argued that judges are and sometimes it's a bit behind. But in the about to take over the country and rule by long run it reflects the national mood about fiat. It hasn't happened yet. What critics the basic rights Americans believe they don't recognize is this: Checks and balances deserve. The great engine of constitutional built into the system guarantee that the court evolution has not been judges who think rarely opposes the national political they know better than the American people. coalition for long, and it usually cooperates It has been the evolving views of the with it. It's a good bet that people who American people themselves about what complain the loudest about the court being rights and liberties they regard as most countermajoritarian represent at most a important to them. regional majority, not a national one. People in the political center usually get pretty Rather than a set of shackles designed by much what they want. long-dead slave-owners, the framers bequeathed to us a Constitution that could And that brings us to the real secret of why adapt to the needs and aspirations of each we have a living Constitution. In the long succeeding generation. Their faith in the run, the Supreme Court has helped secure possibilities of the future, and our enterprise greater protection for civil rights and civil in realizing that future, have made us the liberties not because judges are smarter or great and free nation we are today.
470 "Rethinking Originalism: Original Intent for Liberals (and for Conservatives and Moderates, too)"
Slate September 21, 2005 Akhil Reed Amar
Should constitutional interpreters embrace more consistent and less hypocritical: They the document's original intent or evade it? should respect original intent across the Several leading liberal scholars are urging board-at least in the absence of some Americans to choose Door No. 2, because compelling legal counterargument, such as the original- intent game is doomed to justifiable reliance on past practice or reach intolerably conservative-indeed, precedent. reactionary-results. Balkin himself has reached a wholly But is it? And once we reject that game, different conclusion: Modem constitutional what are the proper legal rules to play by? interpreters, says he, should simply stop trying to heed the original intent of the men The present moment is a perfect time to and women who ratified and amended the ponder such foundational questions: The document. In his opinion, interpreters should Rehnquist Court is now officially history, focus on the text, not the original intent. two new justices will soon be in place, and the Roberts hearings have introduced a new As I see it, text without context is empty. generation of channel-surfers to detailed Constitutional interpretation heedless of debates about constitutional philosophy. enactment history becomes a pun-game: The Closer to home (i.e., the home page of this right to "bear arms" could mean no more Web site), several recent Slate postings by than an entitlement to possess the stuffed Jack Balkin, Dahlia Lithwick, and Emily forelimbs of grizzlies and Kodiaks. (And if Bazelon have made interesting contributions history no longer constrains, why should to the original-intent debate. spelling? Maybe the Second Amendment is about the right to "bare arms" and other In late August, Balkin-my Yale colleague body parts-e.g., nude dancing.) and sometime co-author-correctly pointed out that Justices Antonin Scalia and How about Balkin's argument that Clarence Thomas, while proclaiming originalism generally leads to outrageously themselves faithful followers of original conservative results? Another leading liberal intent, do not always practice what they light, Cass Sunstein, has said much the same preach. For example, these two justices have thing of late. I disagree. The framers consistently voted against affirmative action themselves were, after all, revolutionaries but have never explained how their votes who risked their lives, their fortunes, and can be squared with historical evidence that their sacred honor to replace an Old World the Reconstruction Congress itself engaged monarchy with a New World Order in affirmative action. unprecedented in its commitment to popular self-government. Later generations of But without more, this is merely an reformers repeatedly amended the argument that Scalia and Thomas should be Constitution so as to extend its liberal
471 foundations, dramatically expanding liberty fact equal? Or was it instead a law whose and equality. The history of these obvious purpose, effect, and social meaning liberal reform movements-i 9th-century proclaimed white supremacy in deed rather abolitionists, Progressive-era crusaders for than in word? For any honest observer in women's suffrage, 1960s activists who either 1896 or 1954, the question answered democratized the document still further-is itself: Jim Crow was plainly designed to a history that liberals should celebrate, not demean the equal citizenship of blacks-to sidestep. keep them down and out-and thus violated the core meaning of the 14th Amendment. Consider, for example, the landmark 1954 So, Brown is in fact an easy case for those case of Brown v. Board of Education. Both who take text and history seriously. (Note, Sunstein and Balkin say that Brown broke by the way, that this basic view of Brown- with the history underlying the Civil War embraced by a wide range of scholars from amendments, which, they claim, plainly Robert Bork on the right to Charles Black on permitted racial segregation. But the 14th the left-is somewhat different than the Amendment, ratified in 1868, undeniably more controversial originalist theory demanded that government treat blacks and championed by the towering judge/scholar whites with equal respect, equal dignity, and Michael McConnell, whose ideas Emily equal protection. All Americans-black and Bazelon has recently explored.) white alike-were proclaimed equal citizens by that amendment. True, some framers of Another key originalist point that is often this amendment did say that some overlooked derives from the 15 th segregation laws might be permissible. But Amendment, which was ratified two years in saying this, many of them were after the 14th and reflected a far more robust envisioning a postwar world in which both vision of black rights, including equal- races in general might prefer separate spaces suffrage rules. This amendment was (as most men and women today probably intrinsically integrationist, envisioning a prefer sex-segregated bathrooms in public world in which blacks and whites would places). In such a world, they believed, work side by side at the ballot box, in the segregation would not always be unequal. jury box, and in legislatures across the country. As the first Justice Harlan But the Reconstructionists never said that understood in Plessy (though many modem segregation would always and automatically scholars seemed to have missed the point be constitutional. The Constitution's text altogether), the enactment history of the 15th does not say that all citizens are equal Amendment thus powerfully reinforced "except for segregation laws." Rather, it various 14th Amendment arguments against uncompromisingly demands equality of civil Jim Crow. rights-no ifs, ands, or buts. In fact, most Reconstructionists understood that a law Yes, it's true that on today's court the two whose statutory preamble explicitly leading originalists are both conservative, proclaimed whites superior to blacks would but perhaps the court's most influential be plainly unconstitutional. The question in originalist in history was the great Hugo both Plessy v. Ferguson (in 1896) and Black-a liberal lion and indeed the driving Brown v. Board (in 1954) was thus a simple force behind the Warren Court. . . . It's also one, and simpler than these constitutional worth remembering that the most towering scholars might suggest: Was Jim Crow in originalist scholar of the 1970s was also a
472 professed liberal, John Hart Ely. overlooking-I've tried to do that elsewhere (in an article in the Harvard Law Review In short, there are many reasons to question published in 2000, and, more the idea that modem liberals should abandon comprehensively, in my new book being constitutional history rather than claim it as published this month). But I hope I've said their own. This short posting is not the place enough here to convince thoughtful anti- to present all the historical evidence that originalists to take a second look at the some modem anti-originalists are Constitution's first principles.
473 "In Praise of Judicial Modesty"
NationalJournal March 18, 2006 Stuart Taylor
During the hiatus between Supreme Court have agreed about what school of confirmation battles, we may as well settle interpretive thought should prove dominant the clash between the conservative and in interpreting the Bill of Rights in the liberal approaches to constitutional centuries to come?" interpretation. The battle lines are familiar. Conservatives, led by Justices Antonin Even when the original meaning is Scalia and Clarence Thomas, say that the undisputed, it is often intolerable to sole legitimate approach is to follow the conservatives as well as liberals. Many literal text and original meaning of Framers did not see the flogging or even the constitutional provisions and amendments. execution of a 12-year-old for theft as "cruel Justices' policy preferences should play no and unusual punishment," for example. And role, assert conservative "originalists." But nothing in the text or original meaning of the the claim is undercut somewhat by the Constitution was designed to bar the federal consistency with which the conservatives' government from discriminating based on votes on abortion, religion, race, gay rights, race (or sex). This has not stopped Scalia or and many other big issues happen to fit their Thomas from voting to strike down federal policy preferences. racial preferences for minorities. Nor have they hesitated to invoke debatable Liberals and many moderates prefer the interpretations of the Constitution to attack "living-Constitution" approach, which has laws regulating campaign finance and been dominant at least since the Warren imposing monetary liability on state Court. It involves using ancient but governments. conveniently vague constitutional phrases to enforce "evolving standards of decency," to The living-Constitution approach may be promote equality, and to vindicate what even more problematic, because it has cut a sometimes-liberal Justice Anthony Kennedy wider swath through democratic governance likes to call "the right to define one's own with even less basis in the written concept of existence, of meaning, of the Constitution. universe, and of the mystery of human life." Not surprisingly, constitutional evolution in If the Constitution is an "invitation to apply the hands of liberals supports liberal current societal values," as Scalia has asked, policies. "what reason would there be to believe that the invitation was addressed to the courts Each school of thought is most persuasive in rather than to the legislature? . . . A debunking the other. Justice Stephen Breyer democratic society does not, by and large, skewers originalism in his 2005 book, Active need constitutional guarantees to ensure that Liberty: "Why would the Framers, who its laws will reflect 'current values.' disagreed even about the necessity of Elections take care of that." including a Bill of Rights in the Constitution, who disagreed about the Consider Roper v. Simmons, last year's content of the Bill of Rights, nonetheless decision barring the death penalty for any
474 murder committed before the killer's 18th decisions by other branches of government. birthday. This would have been good Embraced in general terms by then-Judges legislation, in my view. But it was bad John Roberts and Samuel Alito during their constitutional law. Supreme Court confirmation hearings, the judicial-modesty approach is expounded Justice Kennedy's claim for the 5-4 majority more fully in a November 2005 Harvard that modem Americans had reached a Law Review article by Posner, a prolific and "consensus" that no juvenile murderer ideologically eclectic legal scholar. should ever get the death penalty was bogus: A majority (20) of the 38 states with the Posner begins by puncturing the myth that death penalty still allowed such executions. judging can ever be completely apolitical. In Kennedy's reliance on the laws of almost all constitutional cases, he shows, the Court is foreign nations against the juvenile death unavoidably "a political body ... exercising penalty was a fig leaf for his personal moral discretion comparable in breadth to that of a preferences. So was his twisting of the legislature." The most sincere attempt at relevant literature on juvenile psychology to "lining up the facts alongside the suggest misleadingly that minors are constitutional text" usually provides no incapable of mature moral reflection. And as more objective a basis for preferring one Judge Richard Posner of the federal appeals outcome to another than for "preferring a court in Chicago points out, Kennedy was margarita to a cosmopolitan." tellingly selective in his attention to social- science literature: He ignored the studies Next Posner explains that the justices would suggesting that the death penalty may deter look and act less like political manipulators some would-be killers and thus save lives. if they "acknowledged to themselves the essentially personal, subjective, and indeed In a variation on the living-Constitution arbitrary character of most of their approach, Breyer argues in Active Liberty constitutional decisions." Such self- for interpretations designed to promote awareness is rare among justices, Posner "participatory self-government" by voters. says, because it "would open a But Breyer's support for the 1973 decision psychologically disturbing gap between their that ended participatory self-government on official and their actual job descriptions." abortion-Roe v. Wade-casts doubt on his seriousness. Especially since his book does Instead, "cocooned in their marble palace, not even mention this, the biggest and most attended by sycophantic staff, and treated controversial decision of the past 60 years. with extreme deference wherever they go, Supreme Court justices are at risk of The bottom line is that nonadherents acquiring exaggerated opinions of their understandably see originalism and living ability and character." constitutionalism alike as smoke screens for imposing the justices' personal policy The path of wisdom would be to preferences. acknowledge that "the law made me do it" is usually no more than a "rationalization for This is not healthy. How might we avoid the the assertion of power" of an essentially worst excesses of each approach? political nature, Posner adds. Justices who understood this would probably be "less The best answer is judicial modesty, in the aggressive upsetters of political and policy sense of great hesitation to second-guess apple carts than they are." 475 Judicial modesty also converges with a escapades would be political dynamite that pragmatic focus on what will be the actual would explode and interfere with his ability consequences of a proposed decision. Three to perform his duties." of Posner's examples-cases in which "the law" did not dictate any particular Third, Posner shows sympathy for Justice outcome-are illustrative. Breyer's solo, split-the-difference approach in two 5-4 decisions last June involving First, he applauds the 5-4 decision (over a displays of the Ten Commandments. In one, liberal dissent) in 2002 to allow Cleveland Breyer joined liberals in invalidating the to finance vouchers enabling low-income recent, locally controversial installations of children to leave failed public schools for Decalogue plaques in two Kentucky mostly Catholic private schools. The major courthouses. ("I have no settled view" on disputes underlying the case-over whether that decision, Posner notes.) In the other, the Cleveland experiment would work well Breyer joined conservatives in upholding a for children and whether it would lead to Ten Commandments monument on the sectarian conflict-turned on factual grounds of the Texas state Capitol, where it projections beyond the Court's competence. had stood for 40 years, amid various secular monuments, with little ado. "Actual social experiments are necessary to generate the data needed for intelligent Many critics (including me) have faulted constitutional rule-making," explains Breyer's hairsplitting for leaving the law Posner. "The pragmatist wants to base unclear. Not so Posner: "Compromise is the decisions on consequences, and it is very essence of democratic politics and hence a difficult to determine the consequences of a sensible approach to dealing with challenged policy if you squelch it at the indeterminate legal questions charged with outset." political passion. . . . To give a complete victory to the secular side of the debate (or Second, Posner deplores as "injuriously for that matter to the religious side) could be unpragmatic" the unanimous 1998 ruling thought at once arrogant, disrespectful, and against President Clinton in the Paula Jones needlessly inflammatory." lawsuit: "It should have been obvious to the justices that forcing the president to submit Amen. Or, if that offends you, right on. to a deposition in a case about his sexual
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