UPDATE: See also co-blogger Katherine‘s post, below.
Eugene Volohk has an excellent article on the First Amendment over at NROnline. (Also discussed at the Volohk Conspiracy here and here.) Kevin Drum sums up Volohk’s argument, and then adds his own thoughts:
Eugene’s argument about why judges have to interpret the First Amendment — it’s too vague and absolute to make sense in the real world — seems to me to apply to the entire strict construction school of constitutional law. The entire constitution is deliberately vague and assumes a broad societal consensus about its interpretation that the framers felt it was unnecessary to spell out in the document itself. Relying on black letter text just doesn’t work if the text itself has been deliberately left incomplete.
Well, not entirely. It’s true that the language of the U.S. Constitution is deliberately vague in some areas, but, by and large, the Constitution is not as hopelessly indeterminate as Kevin seems to suggest. It’s not all throwing bones and examining entrails, so long as one examines each passage in its historical context. . . .
Since we’re on the subject of the First Amendment, let’s take a look at a passage of the First Amendment that is fairly clear when put in historical context: “Congress shall make no law respecting an establishment of religion . . .”
This clause is fairly straightforward: No laws shall be made respecting an establishment of religion. What’s an “establishment of religion”? It’s not a common phrase today, but, at the time, it meant a national religion, such as the Church of England. This clause of the First Amendment is meant to prohibit the U.S. Congress from setting up something akin to the Anglican Church. (Although, presumably, the addition of the term “respecting” broadens the prohibition to include acts short of an actual establishment of a state religion — so a bit of fudge here, yes.)
Now, there was no prohibition in the First Amendment against the states establishing their own religions and, indeed, several had state religions at the time of the First Amendment’s passage. (Later, Courts interpreted the subsequently-passed Fourteenth Amendment to apply the First Amendment to the States, thus extending the prohibition to the states.) And, in all events, there’s no prohibition against all state-sanctioned religious acts, only those that may lead to (or are associated with) the “establishment” of a state religion.
This does not mean, by the by, that the application of the Constitution to a set of facts occurring hundreds of years later is easy. Lord, no — this is difficult work. But strict construction merely assumes that you’ll look at the historical context of each Constitutional passage when interpreting it, and that you’ll cleave to the derived meaning when passing judgment. It’s not such a radical thought.
we’ve been on some kind of bizarre mind meld for the last 24 hours. Hmmm…perhaps I can use this to my advantage. (You are getting sleepy….your eyelids are getting heavy….Howard Dean is a GOOD candidate…. You want to VOTE for him….)
we’ve been on some kind of bizarre mind meld for the last 24 hours. Hmmm…perhaps I can use this to my advantage. (You are getting sleepy….your eyelids are getting heavy….Howard Dean is a GOOD candidate…. You want to VOTE for him….)
I know. It’s scary. (And why do I have a sudden urge to watch that horrid Mr. Bean movie?)
That applied to posts crossing in the night, not everything you said afterward. Here is my problem with strict constructionism (at least, the Scalia “originalist” school of strict constructionism): when the Equal Protection Clause was passed, no one seemed to think it gave women the right to vote. But I don’t see how any sensible, unprejudiced interpretation of “equal protection of the law” can deny it.
Not that you shouldn’t look at the historical context. Sometimes you can’t understand the passage without it. Just that it shouldn’t always be decisive.
In practice it just doesn’t seem to work, though. To coin a phrase, ask ten strict constructionists what a phrase in the constitution means and you’ll get 11 answers.
Even your example doesn’t hold up under scrutiny. Your “bit of a fudge” is really a massive loophole and I doubt that scholars of the era could really agree on what it means.
Besides, who cares? Really, assuming that interpretation is called for at all, why give extra weight to the interpretation of the framers? Sure, it’s a good excuse for conservative interpretations of the law, but that’s not a very principled excuse.
To coin a phrase, ask ten strict constructionists what a phrase in the constitution means and you’ll get 11 answers.
Not true: my discussion of the “establishment” clause is pretty much accepted as the historical basis for the passage. You will find points of disagreement (the Second Amendment, for example), but they’re generally the exception, not the rule.
Even your example doesn’t hold up under scrutiny. Your “bit of a fudge” is really a massive loophole and I doubt that scholars of the era could really agree on what it means.
It’s not a loophole, and it’s not a dodge. The question is, where does one begin in Constitutional interpretation. If we know what “establishment of religion means,” “respecting” is a relatively easy one to fight over, for it’s range of possible meanings is limited.
Besides, who cares? Really, assuming that interpretation is called for at all, why give extra weight to the interpretation of the framers?
Then, where would you begin? This isn’t a debating society. There is no “correct answer,” only some answers that are better than others. I think that the Founders are an excellent place to begin the inquiry because they’re the ones who actually drafted the language, and consistency of interpretation (as well as notice thereof) are important. We can’t go changing Constitutions with every generation, as one of your commentators suggested (misconstruing Jefferson).
They wrote it, and I don’t think their views are “just another opinion”. But you could argue it gains its legitimacy from those who voted to ratify it. Harder to know what they thought. You could also argue that we’re the ones who have to live under it, and they made it very difficult for us to amend it.
We may disagree less than I think. What do you think of the question about the equal protection clause and women’s suffrage?
Are we sure here that the language is deliberately vague or just that meanings for some words are broader (in or out of context) than they were to those who wrote the Constitution?
As far as the who really cares, the answer should be lots of people.
The main point of having a Constitution like ours is so that we know what the boundaries are. We can skirmish over the exact contour of the boundaries, but there are still zones which are pretty clearly inside and outside the boundaries. The problem I have with modern liberal/left Constitutional jurisprudence is that its avoidance of the text amounts to doing whatever the hell they want. The move is from ‘fighting over the boundaries is hard work’ to ‘hell the difficulty proves that there really aren’t any boundaries’. The problem with that pose is that if the Constitution is so malleable, why bother having it? Not to mention the old objection of not wanting to give your enemies that kind of power.
I tried to deal with the whole issue here a couple of months ago, but I’m not sure I did a good job of nailing down my thinking on the matter. But in short, the Constitution in specific and the judiciary in general are meant to preserve rights and implement law. The implementation part isn’t supposed to be a huge loophole. If you want major changes, you are supposed to go through the democratic branches or a super-majority Constitutional process. The modern Democrat understanding of the judiciary threatens to swallow all important functions of law-making.
I guess I want to know how we know when a Supreme Court Justice is wrong if he issues an opinion. I don’t like the idea that the Constitution is really just whatever 5 Justices say it is.
Acknowledging that these are hard questions and will depend on your policy views can make you MORE honest about what the text actually says. The Lochner majority were the ones arguing that they were only following The Law; Holmes and Brandeis, the legal realists, were the ones who got it right. I think Scalia is also a good example of the dishonesty that pretending away ambiguity leads to.
Please acknowledge that the Warren court got some things right that the Supreme Court had been getting wrong for decades and decades. Also acknowledge that conservative judges can–and often are–judicial activists too. Where are the calls for judicial restraint when economic regulations are struck down?
Also, the plain meaning of the text, the intent of the founders, and the principle of abiding by precedent whenever possible often point in two different directions, and sometimes in three. That’s assuming you can take your own policy views out of the equation–and whether or not you should, you can’t; not entirely.
Are we sure here that the language is deliberately vague or just that meanings for some words are broader (in or out of context) than they were to those who wrote the Constitution?
Well, James Casey, the phrase “establishment of religion” is sometimes vague to modern readers, but its meaning was quite clear to the founders. I’d say it does happen with some frequency.
Indeed, Americans often forget that their Cosntitution did not spring forth, but is really a continuation of the unwritten English Constitution. Indeed, it’s almost impossible to understand the US Constitution (and particularly the Bill of Rights) without looking at what rights and privileges were afforded under the English Constitution. In some places (the “establishment of religion” clause in the First Amendment, for example), the so-called founding fathers expressly rejected a part of the English Constitution; in most places, however (e.g,, “Due process,” “writ of habeus corpus,” “freedom of . . . the press”), the founding fathers were co-opting essentially English concepts of justice.
I once had a law professor tell me that virtually everything I needed to know about U.S. Constitutional law was in Sir William Blackstone’s commentaries on English law. He was pretty much correct.
The main point of having a Constitution like ours is so that we know what the boundaries are. We can skirmish over the exact contour of the boundaries, but there are still zones which are pretty clearly inside and outside the boundaries.
I think that’s still pretty much true, Sebastian. Outside of the Ninth Circuit, the number of truly activist judges (on the right or left) is diminishingly small, and much of the supposed activism of the Warren Court involved either (a) a reassertion of Constitutional values that had been ignored (Brown v. BOE) or (b) the application of old concepts to new facts (many of the search and seizure cases). There were a few attempts at legislation (Miranda, Roe v. Wade), as well as a couple of “stretches” (Giswald), but, by and large, the Warren court was no more activist than other Courts.*
von
*Such as the rightward leaning Lochner court, for example.
I’ll toss in a question about activism–can an originalist support judicial review? I always heard that judicial review was not to be found in the Constitution, but was a piece of judicial activism on the part of John Marshall in Marbury v. Madison.
I always heard that judicial review was not to be found in the Constitution, but was a piece of judicial activism on the part of John Marshall in Marbury v. Madison.
You’re right, Matt Weiner, that judicial review is not expressly set forth in the Constitution. The genius of Justice Marshall’s decision, however, was to find it there by implication. Put simply, Justice Marshall found that by vesting all judicial power in one Supreme Court, the Constitution necessarily also vested the power of judicial review in the Supreme Court would have the power to review acts of Congress — after all, judicial review is what Courts do.
I’ll toss in a question about activism–can an originalist support judicial review?
They can and do — although a small minority grumble about how the Constitutional review should really take place in the Legislature, not the Courts. (Shades of Sebastian‘s argument.)
This doesn’t do justice to the whole opinion, which really is worth reading. You can take a look at it here
Then, where would you begin? This isn’t a debating society. There is no “correct answer,” only some answers that are better than others. I think that the Founders are an excellent place to begin the inquiry because they’re the ones who actually drafted the language, and consistency of interpretation (as well as notice thereof) are important. We can’t go changing Constitutions with every generation, as one of your commentators suggested (misconstruing Jefferson).
This is acceptable so far as it goes–as long as you understand that the intents and views of the Founders are not the be-all, end-all of how the Constitution /should/ be interpreted. A number of strict constructionists seem to take this approach, spoken or unspoken–and it’s about as flawed as a literal reading of the Bible. Once you accept that the Founders got it wrong about blacks and women, the theory of infallibility goes out the window.
Once you accept that the Founders got it wrong about blacks and women, the theory of infallibility goes out the window.
Well, in fairness to the strict constructionists, those problems were largely corrected by Constitutional Amendment, not but judicial interpretation of the original text.
But the amendment was interpreted in a way that was almost indefensible for 75 years, and the courts played a crucial role in changing that.
But the amendment was interpreted in a way that was almost indefensible for 75 years, and the courts played a crucial role in changing that.
Oh, sure, I don’t disagree with that. But strict constructionists will argue that the (mis)interpretation of the Fourteenth Amendment violated their principles of construction as well.
Well, in fairness to the strict constructionists, those problems were largely corrected by Constitutional Amendment, not but judicial interpretation of the original text.
That doesn’t change the fact, though, that the Founders got it wrong in the first place. The fact that a Constitutional Amendment was required in order to address such a fundamental and glaring inequity in the /original intent/ of the Founders should be a strong cautionary note against reading too deeply into the intents of the Founding Fathers, or basing any argument solely on what that intent might’ve been.
“But strict constructionists will argue that the (mis)interpretation of the Fourteenth Amendment violated their principles of construction as well.”
See, it’s just projection, then. If any disagreement between historical fact and your preferred interpretation exists, why it was just misinterpretation of the intent!
I’m no constitutional scholar, so feel free to smack me around, but it seems fairly clear that the framers’ intent was that free landowners be given the right to vote. The argument for more egalitarian voting comes out of a superior principle that was not a part of the original intent.
sidereal,
I am no legal scholar either and I agree with you 100%. It is a bit ridiculous to argue morality or ethics retrospectively. The super majority required to amend is a very high hurdle but it has been jumped 27 times. While stare decis is a very heavy weight to move, it does occasionally get moved. I think someone may have noted that not all change is progress and not all progress is toward a general good.
Thanks to both von and Katherine for calling attention to this column. It is a well written and argued piece.
I hate to try to bring things back to focus, but….
How do liberals know when a Constitutional decision is wrong? You just don’t like it? It smells funny? The color isn’t right? Seriously, how do you know?
How do liberals know when a Constitutional decision is wrong? You just don’t like it? It smells funny? The color isn’t right? Seriously, how do you know?
You do realize that this is one of those questions that may be impossible to answer in a way that will satisfy you, right? It’s like asking someone how they know if /any/ law is right or wrong. There is such a thing as bad law, and judges make mistakes. Sometimes you can explain it or describe it in great detail, and sometimes you just know it when you see it.
IANAL, but when evaluating matters of right and wrong, I defer to the only source on which I am the sole authority: my gut. Whenever possible, I support my positions with–or alter them based on–my constantly evolving understanding of the Constitution, State and Federal law, America itself, and my own senses of maturity and justice.
It does not strike me as requiring a law degree–nor any particular degree of insight–to understand, for example, that it is right to allow all American citizens of age, regardless of their sex or color or any other defining characterstic, to exercise their civic responsibility and right to vote.
“It does not strike me as requiring a law degree–nor any particular degree of insight–to understand, for example, that it is right to allow all American citizens of age, regardless of their sex or color or any other defining characterstic, to exercise their civic responsibility and right to vote.”
Which adds or detracts from the Constitutional questions exactly how? You are aware that the actual text of the Constitution supports your insight?
But it absolutely, definitely does take a law degree to conclude that the Constitution forbids the death penalty, that growing corn in your backyard is interstate commerce, or that the Constitution protects a right to terminate a pregnancy even past the point where your child could live outside the womb without your support.
Constitutional Textualism
Calpundit comments on an important topic, Constitutional jurisprudence. Like most Democrats he doesn’t like textualism, or as he calls it original intent. (The terms aren’t strict synonyms, but what he is attacking in his post is closer to the textuali…
Catsy, Sidereal — you seem to be conflating what is just with what is written in the Constitution. The Constitution is not always just, as the 13-15th Amendments show. The question becomes, if the Constitution, as written, is not just — if it needs to protect this right but doesn’t, or needs to prohobit this activity but doesn’t, or needs to grant this power but doesn’t — what’s the remedy?
I tend to believe that the remedy is to amend the Constitution, and to avoid contorting its words.
That doesn’t mean we treat the Constitution as a dead text, by the way. The Constitution is necessarily broad, and may be applied to novel situations in ways unforeseen by the Founders.* But it does mean that any extensions to the enunciated in it, with an understanding of what the drafters of the Constitution or Amendment meant at the time they drafted it.
Sorry for any typos in the above. Gotta rush.
von
*Understand, too, that the “founders” of the Constitution are not the “founders” of the 14th Amendment.
How do liberals know when a Constitutional decision is wrong? You just don’t like it? It smells funny? The color isn’t right? Seriously, how do you know?
Sebastian–
1. why on earth do you think this is only a liberal question?
2. there’s not an answer to it that’s both glib and complete. “When it cannot be reconciled with the text,” is the glib answer, but it begs all sorts of questions.
von–
amendment is unbelievably difficult, and for good reason. The amendment process is also very undemocratic–not only do you need supermajorities, but the 14 smallest states can block the will of the 36 largest states. That’s ok, but that means if you can’t move around within the text, the Constitution is, if not dead, sort of lurching around in a very unhealthy way.
But it does mean that any extensions to the enunciated in it, with an understanding of what the drafters of the Constitution or Amendment meant at the time they drafted it.
Let’s rephrase that to:
“But it does mean that we approach proposed extensions of the text based on the words actually in the text, understanding of what the drafters of the Constitution or Amendment meant at the time they drafted the text.”
I apologize for the confusion.
“How do liberals know when a Constitutional decision is wrong? You just don’t like it? It smells funny? The color isn’t right? Seriously, how do you know?
Sebastian–
1. why on earth do you think this is only a liberal question?
2. there’s not an answer to it that’s both glib and complete. “When it cannot be reconciled with the text,” is the glib answer, but it begs all sorts of questions.
Because a textualist actually has a method for determining when a decision is Constitutionally incorrect. So far in this thread I have seen zero evidence that the same can be said by liberals who dislike textualism.
Sebastian–I assume you’re referring to Scalia, and after reading his opinions a year and a half: Breyer and Souter are 10 times as honest. He should be called a narrow constructionist, not a strict constructionist–strict usually implies enforcing the rules, not using comma placement to evade them and advance your political opinions. I know you’re a smart guy, but anyone who decries judicial activism outside one side of his mouth and suggests voiding a large % of environmental and economic regulations out of the other is a hard person to take lectures from on fidelity to the constitution.
Ok, sure but under the theories you endorse there is no way to distinguish between fidelity to the Constitution and infidelity to the Constitution, so why do you care? Why not just let Scalia say whatever he wants and accept that every time he gets four other votes he is definitely correct?
You don’t want to do that because you really do believe that Constitution means things but you don’t want to articulate how it means things because that leads to conclusions you don’t like.