I go further, and affirm, that Bills of Rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the National Government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for Bills of Rights.

First of all, I try not to sweat the Founding Fathers too much, since it connotes a certain level of weirdness in today’s society with which I care not to be associated.  But that aside, those guys were insanely smart.  I suspect we can all agree on that.

Moving on, Matt writes “that relying on history and exegesis of centuries-old documents (as opposed to more recent precedents) as the basis of our legal system is a deeply problematic concept.”  He might be right there, but that’s another debate.   If the point of a constitution is to lay a permanent foundation for society, then one would think that both lawmakers and courts should strive to be consistent with whatever the constitution sought to accomplish.  Of course, when precedent, rather than the Constitution itself, supports one’s ideological predispositions, precedent shines a lot brighter.  And vice-versa, no doubt.

But what’s interesting here, and what Matt fails to consider, is that Hamilton’s language seems to make pretty plain how limited the federal government’s powers were thought to be under the Constitution — so limited, in fact, that Hamilton went so far as to say there was no need for a Bill of Rights to protect the people.  Congress did not have the power to even pass laws abridging speech, for example.  In Hamilton’s mind, there was simply no need to protect that which was unassailable.

Funny how the centuries turned out.  Supreme Court precedent certainly gives Congress more authority than Hamilton thought the Constitution gave it back then.  My guess is that Hamilton would either be thankful today that they included a Bill of Rights, or horrified at how much power that little commerce clause in fact was.  Perhaps a bit of both.

I don’t fault the Times, because they speak, as do most on the Constitution, from the perspective of policy preferences, not the state of the law.  That’s something we should expect those without legal training to do, although separating what the law is from what we’d want it to be does not seem too difficult a concept to grasp.   This has become one of my favorite points to make, both on this blog and elsewhere, because it’s too simple and important to be as ubiquitously ignored as it is in the national debate.

But Barnett also mentioned the use by the Times of ab hominum arguments, the discussion of which I thought made for a good blog post, in part because it links pretty well with the above principal.  Wikipedia defines these arguments as “an attempt to link the validity of a premise to a characteristic or belief of the person advocating the premise.”  A trip through American universities and/or grad schools supplies many of us with enough doses of this method of argumentation to make us think it actually has some logical merit.  Ironically, I’d venture to guess that law school is a particularly popular place for such arguments — ironic because I can’t think of a place where it’s more crucial not to make such arguments.  They’re hurled in equal proportions from the right and the left, but it should come as no surprise that, in academia, the ones from the right are nonetheless far fewer in number.  They’re also almost uniformly targeted at Justice Scalia, of course.

If I were a Constitutional Law professor, I would lay out the logical fallacies of ad hominum arguments on the first day of class.  And I would supplement it with the equally, if not more, important principle that a good lawyer has to be able to separate what the law is from what he or she wants it to be.   These two principals are interrelated because they both involve isolating completely irrelevant factors from a legal argument.  Who cares why Justice Scalia is an originalist?  Let’s just worry about the legal argument he’s outwardly making to support his legal conclusion.  And while policy preference is the critical consideration in law-making, legal interpretation involves determining what a  law or constitutional provision actually says, not what we’d like it to say.  Reading a law to fit our preexisting policy preferences is illogical, yes, but I find it more disingenuous than anything else.  (I should concede, of course, that there is a danger of being so watchful of such arguments as to be suckered into ad hominum rants yourself).

But while ab hominum arguments are so logically flawed as to make one think they’re not even worth addressing, their abundance makes them that much more necessary to address head on — most importantly because they often blind those that make them to other justifications for particular legal arguments.  For example, I’ve been on this crusade of late to prove that one can actually be a liberal originalist — that you can be, e.g., pro-abortion rights, pro-gay marriage, and against anti-sodomy laws and still support constitutional decisions that seemingly limit such rights and laws.  Now, some might, in a knee-jerk way, accuse me of being a social conservative and thus conveniently choosing a philosophy that furthers those ends.  But what if I place particular value on our democratic ways and would prefer that social progress be the product of votes, electoral-wins, and subsequent law-making, as opposed to nine justices extending rights that are not plainly in the Constitution?  What if I value competing preferences on a particular policy — again, the merits of which are not addressed in the Constitution’s text — duking it out democratically?

I, for one, am no originalist, although I concede that I thought I was for a time (and maybe will become one again down the road ).  As it turns out, I’m actually just very deferential to the democratic process, which puts me on the side of Scalia on some cases and Breyer on others.  My position is that the Supreme Court should be much more hesitant than it has been to strike down democratically past laws (how this approach stocks up against healthcare reform will be the subject of a future post).  But this is just another nuance that might go unaddressed should someone notice that I’m siding with Scalia on one of his more controversial opinions and conclude that I’m just a garden variety social conservative.  Moreover, liberal policy preferences can exist with a more orthodox form of originalism.  One might think, from a philosophical perspective, that a Constitution should be strictly interpreted according to the Founders’ original intent, but still find that there is ample room to engage our democracy to promote a liberal policy agenda.

So I guess the point here is that, not only is it irrelevant to make any inquiry into the personal beliefs of a person making an argument, but your conceptions as to what those beliefs are can very well be wrong.

But I’m also starting to place a bigger premium on a particular benefit of originalism: the benefit of progressing democratically.  The practice of striking down democratically passed laws is, to me, the most problematic aspect of judicial activism.  As I mention in the posts linked above, opponents of originalism erroneously conflate the theory with “no progress.”  But by refusing to articulate new and non-existing rights in the Constitution, the Court would promote that same progress through democratic processes.  I very much prefer slow and democratic progress (assuming I’m for the substantive result) to quick and judge-made progress through incorrect interpretations of the Constitution.  But, more to the point, I almost have a general preference for any democratic law to any alternative articulation by the Supreme Court if it involves striking down that law.

Mark Tushnet wrote a book a couple of years ago called Weak Courts, Strong Rights, of which I’ve only read a snippet.  He proposes a “weak-form judicial review,” which “respects the right . . . for majorities to prevail when, acting through their representatives, they enact statutes that are consistent with reasonable interpretations of the constitution even if those interpretations differ from those the courts offer.”  Considering that the power of judicial review is mentioned nowhere in the Constitution, much less the ultra-powerful version exercised by federal courts today, there is no constitutional problem with this kind of review, putting aside the whole “it is emphatically the province of the judicial branch to say what the law is” thing articulated in Marbury v. Madison.

Such an interpretation has several benefits.  First, it encourages democracy even more than an originalism that invalidates laws in the name of original intent.  Second, it wouldn’t hinder federal, state and local governments’ pursuit of legitimate policy objectives.  Take the three cases mentioned in the previous two posts as examples.  Should the Second Amendment  suddenly prohibit a crime-ridden city from regulating and banning certain fire-arms, considering that the law had been on the books for over 30 years — even if the Second Amendment protects an individual right?  Should the Fourteenth Amendment prohibit using race to integrate schools, when the purpose of such integration — and the Fourteenth Amendment itself — is/was to help disadvantaged African Americans?  Should the First Amendment’s guarantee of free speech prohibit the government from banning particular corporate campaign expenditures when the overriding purpose is to preserve the integrity of our basic political process and to prevent rich speech from drowning out poor speech?

Regardless of where one comes down on what the Constitution mandates in these instances, I find an interpretation of the particular constitutional provisions that permits these types of policy preferences to be entirely reasonable. Crime-prevention, diversity/integration, and preventing corruption are all compelling justifications for the laws at issue in those cases, and, putting aside the Court’s strict scrutiny jurisprudence, would seem to pass a reasonableness test.

A third benefit of this approach is that it would seem to lessen the likelihood of politically motivated decisions cloaked in legal justification.  It would be more difficult for an activist judge to implement an alternative policy from the bench if the law merely had to represent a reasonable interpretation of the Constitution.  This would also create a truer version of political accountability, as the populace is not free to overturn a Supreme Court decision with which it disagrees, absent a constitutional amendment.

Clearly this isn’t the way our Constitutional system works at the present.  And I’m not even entirely convinced that it’s a better method.  But I can’t help but be sympathetic to a form of judicial review that tends to defer to democratically passed laws as opposed to one that permits judges to permanently prohibit a particular brand of policy by striking down such laws — regardless of whether the decision is originalist or not.  Under this type of analysis, all of the cases we’ve discussed — including Roe and Lawrence – may have been wrongly decided.

Yet the question of whether judicial philosophies are merely custom-made pretexts for individualized and desirable results is irrelevant to the inquiry of whether a judicial philosophy is in fact correct and desirable. And the focus on substantive results and consequences, while certainly an appropriate consideration when interpreting vague, ambiguous, and ancient constitutional text, does not belong at the forefront.  What does, in fact, belong at the forefront becomes clear when the purpose of a constitution is considered. This inquiry causes the American system of government to emerge with better clarity.  What we see is an organized society whose charter does not call for a permanent and authoritarian form of change through manipulative interpretations of its text, but rather popular change through the democratic process of law-making; laws that can compromise, change over time, and represent the voice of the citizens that they are created to rule.

A constitution is a limited set of binding principles designed to endure through changing times.  The key words here are (1) limited, (2) binding, and (3) endure. Because a constitution represents the birth of an organized society, the principles it addresses are the most basic and fundamental aspects of how the government is designed to operate. Such basics are limited in the sense that they cannot establish what they do not address. Notwithstanding Sunstein’s refusal to acknowledge what the word “interpretation” means, it certainly cannot mean seeing something that is not there.

A constitution is binding in the sense that society must follow its dictates. If a constitution could be readily disregarded by succeeding generations, this would run counter to the concept of organized society.  This concept goes hand in hand with the philosophical necessity that a constitution should endure.  If a constitution’s original meaning does not endure, then its purpose and utility are stripped.  A constitution’s original meaning must be preserved in order for the document to endure; if its words were permitted to change over time, it would not be an enduring charter for the functioning of government, but a tool for manipulation in an effort to effect change.  But a constitution is not designed to facilitate change; it is designed to impede change. Individuals may wish for “due process of law” to include the right to smoke marijuana or to solicit prostitutes.  But such basic national principles must mean what they were designed to mean, not what a portion of society would like them to mean.

Many people erroneously associate originalism and other forms of strict interpretation with a lack of progress.  They argue that such interpretations would “take us back to 1789.”  But these arguments dramatically misconstrue the consequences of strict interpretation and, simultaneously, how American federalism operates.  The application of a minimalist form of originalism would simply remove the constitutional justifications for some of the country’s most polarizing and controversial issues.  For instance, the reversal of Roe v. Wade would place the issue of abortion in the hands of either federal or state legislators.  Congress could pass a right to choose law, or, alternatively, the individual states could write their own laws on the matter.  While this would create a broad array of state laws addressing abortion, leaving some of the country’s citizens displeased with others, such a result would at least be a democratic one.  Uniformity is a desirable goal, but not if it’s one side of a divisive issue imposing its view on the rest of the country.

Originalism is thus a promoter and facilitator of democratic progress; a form of progress that is a hallmark of our constitutional scheme.  Societal advancement on controversial matters is best left to the People through the exercise of their democratic rights.  Most importantly, such progress is worthy of confidence, as we can be sure that it is the People themselves who are at the wheel and effecting a desired change, not a “governing caste that knows best.”

I recently had a discussion with a friend about Lawrence v. Texas.  I explained to her that, in Lawrence, the Supreme Court held that laws banning homosexual sodomy were unconstitutional.  I was curious to know what she thought and asked her whether she agreed.  Her immediate response was that the Supreme Court was 100% right and that laws like that are clearly unconstitutional.  What amazed me about her response was that there was no inquiry into what the Constitution actually said, or upon what provision the Court’s holding was based.  I realized then that when she said “laws like these are unconstitutional,” she was basically saying “I don’t like these laws.”  In other words, whether something is unconstitutional depends, to her, on her subjective beliefs of right and wrong.

This type of thinking is not unique to my friend.  It is prevalent in American society.  Too often we decide that certain laws or policies are unconstitutional based solely on our individual moral compasses. But whether something is unconstitutional must depend on what’s contained in the document, not on what we think it should contain.

Consider the many times courts upheld slavery in the pre-Civil War era.  Since the original Constitution explicitly sanctioned slavery through the Three-Fifths Clause, the Importation Clause, and the Fugitive Slave Clause, were courts wrong to uphold the institution, knowing full well the horrors of slavery?  This question still remains in other forms today and can be stated in more general terms: is it the Court’s job to uphold the Constitution, no matter how undesirable the results, or is it the Court’s job to exercise its own ideas of right and wrong?

There have been many incidents in American history where an originalist holding would have resulted in upholding horrific laws such as school segregation, discriminatory laws against women, and laws that banned homosexual sodomy (I believe that there is an originalist argument in defense of Brown v. Board of Education, but I will assume in this paper that an originalist approach would have resulted in upholding school segregation.).  When the Court is faced with such cases, it must decide whether to uphold undesirable laws that have strong justifications in the constitutional text or to aggressively strike these laws down as the product of a “living constitution,” complete with “evolving standards of decency.”

But is the substantive change more important than the process through which it comes about?  Should we want the Court to strike down laws we don’t like at the expense of letting these laws die naturally through the democratic process?  After all, Texas was one of the few remaining states with anti-sodomy laws at the time Lawrence was decided.  And can we really say that Congress wouldn’t have eventually banned school segregation if the Court didn’t decide Brown?

The point of this painfully long post is that that there is more at stake in these cases than the change sought.  The way in which change occurs is just as important as the change itself.  This process implicates our bedrock democratic principle of having the People steer the wheel of change through their votes.  If the Court exercises its authority on controversial subjects, it strips the People of this basic right.  If the Constitution does not speak to a particular subject matter, we should value the right of People to decide for themselves the laws under which they choose to live  just as much as we value the change itself.  We should value the right of people to pass laws that we might hate if the Constitution so permits.   If it means that undesirable laws must endure longer than some would like, then this is the price that we must pay to protect the system itself.

If I am right that [the Supreme Court] is a political court, the absence of term limits is an affront to democratic theory; conferring life tenure on politicians is profoundly undemocratic.

From Posner’s perspective, the absence of term limits can be regarded as an affront to democratic theory.  But turning a separate branch of government with a completely different purpose in our tripartite system into a second legislative branch is certainly an even bigger affront to American constitutionalism.  Imposing term limits on the Justices does nothing to address this central – and much more significant – concern.  The biggest affront to our structure of government is settling on a false application of America’s constitutional ideals.  And this, in fact, becomes the real affront to democratic theory: judges that reach beyond the constitutional text’s original understanding by articulating new rights under the guise of interpreting the text strip the population of its basic right to use the democratic process to determine for themselves the issues that the Constitution does not address.  Such a jurisprudence essentially robs Americans of their democratic voice on the most divisive issues.

In so doing, the Court seals its fate as a political institution.  So long as the America that people want depends in large part upon the composition of the Supreme Court, nomination of potential justices will be politically charged rather than merit based.  Justices will be chosen based on whether they interpret the Constitution strictly or expansively.  They will be chosen based on whether or not they plan to defend the constitutional protection of abortion, articulate a constitutional right to same-sex marriage, or interpret other provisions as protecting a newly defined fundamental right.  In so doing, nine justices unaccountable to the electorate will be blanketing the entire country with their own subjective beliefs as to what rights ought to be in the Constitution.

The most crucial point here is that this should trouble people of all political stripes.  I am often astounded by how many Americans seem completely indifferent as to how rights are protected.  They don’t care if a state law is passed, a federal law is passed, a judge reads a new right into a state or federal constitution, or if the Constitution is simply amended so long as they obtain their desired result.  But this is one of the most flagrant examples of “ends justifies the means” analysis present in our society.  We should be troubled by ultra vires acts by the government regardless of our beliefs.  I strongly believe in a woman’s right to choose to have an abortion and in everybody’s right to marry whomever they wish.  But I also believe in every American’s right to have their say on these divisive issues through the basic democratic process that this country was founded upon.  I cannot justify the uniform application of my personal ideals to the whole country solely upon my strong desire for such a result.  Absent a clear mandate in the Constitution, I, like everyone else, must seek desired change through the democratic process.

Consider the alternative.  If Roe v. Wade was overturned, the decision of whether or not to prohibit abortion would be left to the states. People all across the country would be able to voice their opinions on the issue through their individual votes on local leaders.  Alternatively, Congress could conceivably use their power under the Commerce Clause to protect a basic right to abortion through statute.  Either of these results would remove this lightning rod of an issue to its more appropriate home – the political sphere.  Such a turn of events would result in the Court regaining a large degree of its lost integrity.