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The Constitution is a Roadmap, Not a Magic 8 BallPosted October 05, 2018
By Jonathan A. Karon
Many conservative politicians take the position that there is only one legitimate way to interpret the Constitution, a doctrine called “Originalism”. The doctrine is based on the judicial philosophy of the late Supreme Court Justice Antonin Scalia, who believed that the Constitution should be interpreted based on the intent and understanding of the framers. This view is promoted by The Federalist Society, a conservative legal group, who provided President Trump with his list of acceptable Supreme Court nominees. If you regularly watch cable news you have undoubtedly heard conservatives maintain that any judge who isn’t an Originalist is engaging in improper judicial activism. In fact, however, there are many different, well-accepted, schools of thought on how best to interpret the Constitution. Merely saying that one wishes to be faithful to the framers’ intent raises more questions than it answers.
The first question is whose intent are we interested in? The Constitutional Convention took place in the 1780’s and was exclusively composed of white males, some of whom owned slaves. When the Constitution was adopted women couldn’t vote and African Americans were considered property. Wise as they may have been in some respects, they obviously (to put it mildly) didn’t get everything right.
More fundamentally, however, when the Constitution was adopted, the Bill of Rights did not apply to the States. Accordingly, although the Federal Government could not restrict freedom of the press or freedom of religion, nothing in the Constitution prevented a State government from doing so. (This comes as a shock to many people). It was not until after the Civil War, with the adoption of the Fourteenth Amendment, designed to give citizenship and rights to freed slaves, that the Bill of Rights was deemed to apply to the States. In a series of subsequent Supreme Court decisions, the Court held that these rights were “incorporated” into the Fourteenth Amendment’s command that, no state “shall deprive any person of life, liberty, or property, without due process of law.”
So, if, for example, we are trying to determine whether a Colorado state law requiring a baker sell a wedding cake to a gay couple violates the baker’s religious freedom, do we look at the understanding of the powdered wig wearing folks of the 1780’s (after explaining to them what Colorado is) or the understanding of the folks who adopted the 14th Amendment in the 1860’s. Do we also look at the Supreme Court decisions that decided that the 14th Amendment protected freedom of religion from infringement by a state? If you say that you only care what the framers in the 1780’s thought then the baker loses, because those folks thought that states could do whatever they wanted.
In fact, the Constitution says nothing about how it is to be interpreted. It says there will be a Supreme Court and any lesser courts Congress creates. It says the Court’s shall wield “judicial power” but it doesn’t say how it should go about it. In fact, it was a Supreme Court decision, not the Constitution, that first said that the Supreme Court has the power to invalidate unconstitutional laws.
Over the course of American History there have been many different approaches used to interpret the Constitution. In his marvelous book “Scorpions”, Harvard Law Professor Noah Feldman, tells the story of the different judicial philosophies of four Supreme Court Justices appointed by Franklin Roosevelt. The title refers to the phrase “scorpions in a bottle” as they vigorously argued over the correct way to interpret the Constitution. The four were Hugo Black, Robert Jackson, William O. Douglas and Felix Frankfurter. Although each of them had a significantly different approach, their opinions influenced future justices and remain widely respected by legal scholars. The only one who might be considered to have originalist leanings was Justice Black, who, ironically, did not believe the Constitution protected corporations, because the modern corporation did not exist at the time the Constitution was adopted.
In an interesting side note, none of these four were ever Federal Appeals Court Judges. In fact, only Justice Black was ever any kind of judge before being nominated to the Court and he was a Police Court Judge hearing misdemeanors. But each of them had an impressive background: Justice Jackson was FDR’s Attorney General (he later became the lead Prosecutor for the Nuremberg trials), Justice Frankfurter was a noted Harvard Law Professor, Justice Douglas was a former law professor and head of the Securities and Exchange Commission and Justice Black was (in addition to being a former Police Court Judge) a Senator from Alabama.
These days, Supreme Court nominees like to talk about how they are simply neutral umpires, “calling balls and strikes”. While this may be true for lower court judges, Supreme Court Justices are not just umpires, they are also the Rules Committee. That’s why a nominee’s judicial philosophy matters. The Constitution tells us we shall have a Supreme Court that has the “judicial power”, just as it also says we shall have a Congress with the “Legislative” power and a President, with the “Executive Power”. It also sets forth certain powers and limits on the Federal Government. That’s a roadmap to what the questions are and who gets to decide them. But it isn’t a Magic 8 ball that tells you how to decide those questions. That’s why no one can say there’s only one “correct” judicial philosophy and why a nominee’s approach to these questions is vitally important.
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