A Thought Exercise on Originalism vs a More Activist Approach

[NatMorton]

Whether you subtract something or add something, the law is being altered from its original drafting.

"Let's eat, Grandma!"

Removing the comma makes all the difference.

 

[natman]

I understand that. Can you point out anything in the creation of the Constitution where the founders say anything about holding to their original meaning?

Sorry, I misread your "included Article V" comment. Yes, the founders knew that the constitution would need to change and provided a means for it to do so. Article V was the means.

I don't know if the issue of holding the original meaning ever came up, because that's pretty much the reason for having a constitution. There's not much point in having one if you can change it whenever the mood takes you.

 

[NWRatCon]

Amen.

Would that it were so, though.

 

[NWRatCon]

Sorry, just don't agree with that dogmatic assertion that originalism is bullshit. There are three choices here, not two:

1. Liberal activism
2. Conservative activism
3. Politically neutral originalism.

I think for those who are committed activists, perhaps like yourself, you're going to see any case that doesn't produce your desired political outcome as "activist." That's just not how originalism works. In a well authored originalist decision you happen dislike, your problem is not with the judge or his/her method, but rather with the law.

I wasn't sure where to jump in with my opinionating, but this seems as good a point as any, and gives me a reason. Every judicial determination has to begin with the text, and that includes the Constitution. That, however, only provides guidance, not the answer.

My objection, often vociferous, is that most "Originalists" are not originalist at all - Scalia was a great example. He was an activist jurist using "originalism" as an excuse for his positions and a cudgel in a disagreement. He was really a "selectivist", ignoring text, passages, legislative history and precedents that undercut - or flat out disproved - his assertions. As friend Person opined, that is bullshit.

As a doctrine, originalism is too often used to legitimize conservative activism under a sheep's clothing. The framers, as has been noted, were not even remotely of "one mind". They were in violent (sometimes literally) disagreement, and there were many views on many subjects, ammendment often changed their positions over time. It is inappropriate, but common, for originalist purveyors to elide contemporary disagreements and selectivity quote only those that agree with them. How often is Hamilton, the author of most of the Federalist Papers, quoted by conservative jurists? The Federalist Society relies almost exclusively on anti-Federalist commentaries to support their outlandish interpretations.

I have lived my life in the law, steeped in the Constitution I revere. I keep a copy of the Constitution and the Federalist Papers in my bookcase headboard, both heavily annotated and dogeared. It appalls me to see seminal passages ignored and minimized. The first authority given to Congress is to tax and spen; the first object "national defense and general welfare". The Second Amendment is explicitly constrained by the purpose of maintaining "a well- regulated militia". The Ninth Amendment recognizes protected rights "of the people" not otherwise "enumerated". These provisions have hefty import.

With those points, I yield the floor.

 

[Cordelier]

Whether you subtract something or add something, the law is being altered from its original drafting.

True... but adding or subtracting aren't the only forms of "altering"... I just wanted to narrow down the meaning of the term for the purposes of my answer.

 

[trouble13]

True... but adding or subtracting aren't the only forms of "altering"... I just wanted to narrow down the meaning of the term for the purposes of my answer.

I specifically raised the question of severability. I am not a fan of judges saving laws. Kick it back to congress and make them rewrite it if the law is written wrong.

 

[Cordelier]

Roe's problem is not a right to privacy. By this I mean the Roe case is actually not about a right to privacy. The majority in that decision had to find a way to at least appear as if their decision was rooted in the Constitution, so Roe became a "woman's right to privacy" case. IMO, that's really a canard (albeit a highly successful one).

[Edited for length]

If you want to have a legal debate about abortion, I'd suggest we take it to the Abortion area. For the purposes of this discussion, however, I think it'd probably be better to avoid the complications of Roe and focus instead on how an originalist would go about asserting the existence of a 9th Amendment right. Justice Goldberg's concurrence in Griswold is pretty much acknowledged as a textbook case example of how a liberal activist formulates the existence of such an unenumerated right... so I'm curious what objections an originalist would have to Justice Goldberg's reasoning.

 

[Cordelier]

I specifically raised the question of severability. I am not a fan of judges saving laws. Kick it back to congress and make them rewrite it if the law is written wrong.

I'd say in most cases, that's exactly what would happen.... but there are circumstances where only one provision of a law is constitutionally offensive while the rest of the law is entirely constitutional, so if the offending provision can be excised without unduly compromising the rest of it, I'd say the Courts would be justified in applying severability.

In practice, Congress can just as easily amend the law to replace the excised portion as it can to replace the entire law, can it not?

 

[trouble13]

I'd say in most cases, that's exactly what would happen.... but there are circumstances where only one provision of a law is constitutionally offensive while the rest of the law is entirely constitutional, so if the offending provision can be excised without unduly compromising the rest of it, I'd say the Courts would be justified in applying severability.

In practice, Congress can just as easily amend the law to replace the excised portion as it can to replace the entire law, can it not?

I dont like the concept but thats just me

 

[Cordelier]

I dont like the concept but thats just me

Meh. Six of one. a half dozen of the other. If Congress doesn't like how the Court cuts the cards, they've always got the option to reshuffle the deck.

 

[NWRatCon]

I'd say in most cases, that's exactly what would happen.... but there are circumstances where only one provision of a law is constitutionally offensive while the rest of the law is entirely constitutional, so if the offending provision can be excised without unduly compromising the rest of it, I'd say the Courts would be justified in applying severability.

In practice, Congress can just as easily amend the law to replace the excised portion as it can to replace the entire law, can it not?

Courts have always had the option of severing, unless it's precluded. Those that oppose the concept are usually just being too clever, knowing that it is difficult enough to get legislation through once, and hoping for another opportunity to be obstructive. That's why legislatures typically include a severability clause.

 

[trouble13]

Meh. Six of one. a half dozen of the other. If Congress doesn't like how the Court cuts the cards, they've always got the option to reshuffle the deck.

Do they though. Look at what these judges are doing to Trump. They seem to be taking it upon themselves to decide which laws are and aren't touchable.

 

[Cordelier]

Courts have always had the option of severing, unless it's precluded. Those that oppose the concept are usually just being too clever, knowing that it is difficult enough to get legislation through once, and hoping for another opportunity to be obstructive. That's why legislatures typically include a severability clause.

Exactly... the way legislation is written is modular anyway - for comprehensive legislation, it's entirely possible to cut out an Article or Section without forcing the whole structure to fold in on itself.

 

[Cordelier]

Do they though. Look at what these judges are doing to Trump. They seem to be taking it upon themselves to decide which laws are and aren't touchable.

It's hard to talk in generalities... it might help the conversation along if you cited a specific example of what you're referring to.

 

[NatMorton]

I wasn't sure where to jump in with my opinionating, but this seems as good a point as any, and gives me a reason. Every judicial determination has to begin with the text, and that includes the Constitution. That, however, only provides guidance, not the answer.

My objection, often vociferous, is that most "Originalists" are not originalist at all - Scalia was a great example. He was an activist jurist using "originalism" as an excuse for his positions and a cudgel in a disagreement. He was really a "selectivist", ignoring text, passages, legislative history and precedents that undercut - or flat out disproved - his assertions. As friend Person opined, that is bullshit.

As a doctrine, originalism is too often used to legitimize conservative activism under a sheep's clothing. The framers, as has been noted, were not even remotely of "one mind". They were in violent (sometimes literally) disagreement, and there were many views on many subjects, ammendment often changed their positions over time. It is inappropriate, but common, for originalist purveyors to elide contemporary disagreements and selectivity quote only those that agree with them. How often is Hamilton, the author of most of the Federalist Papers, quoted by conservative jurists? The Federalist Society relies almost exclusively on anti-Federalist commentaries to support their outlandish interpretations.

I have lived my life in the law, steeped in the Constitution I revere. I keep a copy of the Constitution and the Federalist Papers in my bookcase headboard, both heavily annotated and dogeared. It appalls me to see seminal passages ignored and minimized. The first authority given to Congress is to tax and spen; the first object "national defense and general welfare". The Second Amendment is explicitly constrained by the purpose of maintaining "a well- regulated militia". The Ninth Amendment recognizes protected rights "of the people" not otherwise "enumerated". These provisions have hefty import.

With those points, I yield the floor.

I hear you, and I agree that activism is often masked by claims that constitutional principles are being applied; I also agree both liberals and conservatives do it.

As I've said before, however, I do not think perfection should be the enemy of good. By way of comparison, I think all of us would agree honesty is a good thing. I'd also wager that each of us has done something at some point in our lives that could be fairly labeled as "dishonest." That we fall short of our aspirations to be truthful does not mean that honesty is bullshit or that honesty should be cast aside. It just means we're human.

In other words, give me a choice between a self-professed originalist who only manages to adhere to original intent in half of his or her decisions or a judge who openly professes activism, and I'll take the judge who's batting .500 against the Constitution. At least then I'll know the will of voters is being honored some of the time.

 

[NatMorton]

If you want to have a legal debate about abortion, I'd suggest we take it to the Abortion area. For the purposes of this discussion, however, I think it'd probably be better to avoid the complications of Roe and focus instead on how an originalist would go about asserting the existence of a 9th Amendment right. Justice Goldberg's concurrence in Griswold is pretty much acknowledged as a textbook case example of how a liberal activist formulates the existence of such an unenumerated right... so I'm curious what objections an originalist would have to Justice Goldberg's reasoning.

I think I was fairly clear in my earlier post that I was not looking to have a debate on the pros and cons of abortion restrictions. The focus on my post was the legal reasoning in Roe.

I'd need to refresh my knowledge of Griswold before answering your question and will not have the time to get to that today. Regardless, I think my point still stands. Whether the privacy decision in Griswold was constitutionally valid or not, IMO it has no bearing on Roe because in reality, and despite the rationale given by the majority, Roe does not rest on a matter of privacy as privacy is not dispositive under the criteria established by the decision. Under Roe, sometimes privacy is paramount, and sometimes it's not. It is far more accurate to say that Roe relies on a court-majority imposed definition of human life, a definition they did not have the authority to impose.

 

[Buckeyes85]

It is NEVER a judge's job to ever make moral decisions. Moral decisions - if not prohibited by the Bill Of Rights and Constitution - is the job of the legislative and executive branches of government.

The CORE concept of the rule of law is that the law rules - not people's morality. Judges are never to make moral decision. They are to ONLY make LEGAL decisions - and if the law, constitution or Bill Of Rights is contrary to the judge's own morality, EVERY judge has sworn an oath to rule against their own opinions on behalf of the law.

Perhaps this may seem like a distinction without a difference but the constitution was not originally drafted to be a grant of rights or protection of rights for the people.It was a limited grant of authority to the federal government and all other rights remained with the people. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

 

[joko104]

Perhaps this may seem like a distinction without a difference but the constitution was not originally drafted to be a grant of rights or protection of rights for the people.It was a limited grant of authority to the federal government and all other rights remained with the people. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Well said.

 

[NotreDame]

I understand that. Can you point out anything in the creation of the Constitution where the founders say anything about holding to their original meaning?

Madison made an argument against the national bank that is consistent with originalism. By originalism I mean the reasonable public meaning of the text, clause, sentence, etcetera, near the time the law was passed/ratified. Jefferson advocated for a methodology also consistent with originalism.

But does it matter whether the framers/founders wanted original meaning? The federal judiciary isn’t blessed with the power to apply any meaning they want to the written law. After all, a purpose of placing law into writing is to inform the people of what the law is and says, and that is accomplished by the placing of law into writing, in which words, with a limited range of meaning, communicate what the text of the law says.

It has been said, Emperor Nero would have the laws he didn’t particularly care for, that were passed by the senate, attached to the tops of the columns in the forum, out of reach for anyone else to read. This way they didn’t know what the text of the law said and Nero was free to give it any meaning he desired. That dastardly act is tantamount to a federal judiciary operating with the notion it can change, alter, amend the meaning of a law or conjure a novel, different, or new meaning not supported by the text of the written law.

 

[NotreDame]

You're looking at Roe in isolation, though. Try reading Justice Goldberg's concurrence in Griswold v. Connecticut, 381 US 479, 486 (1965), and his explanation for why the right to privacy should be considered a 9th Amendment unenumerated right. As an originalist, how would you argue against Goldberg's opinion?

As an originalist, I agree. The 9th Amendment protects the unemumerated right of privacy. Indeed, Randy Barnett wrote an article arguing the breadth and scope of unenumerated rights protected by the 9th Amendment.https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1850&context=facpub

 

[NWRatCon]

In other words, give me a choice between a self-professed originalist who only manages to adhere to original intent in half of his or her decisions or a judge who openly professes activism, and I'll take the judge who's batting .500 against the Constitution. At least then I'll know the will of voters is being honored some of the time.

Here's the rub, my friend: You're assuming that constitutional adherence and activism are mutually exclusive. If a judge, for example, cites the 9th Amendment in determining, for example, that marriage is a constitutional right, is he being activist or originalist? The framers clearly understood that self-determination in the act of marriage is a fundamental principle. So fundamental, in fact, that they didn't feel the need to explicitly enumerate it in the Constitution, as it was so well understood. Similarly, travel, privacy, etc. They didn't anticipate e-mail, but they surely would approve of protecting it from unwarranted search, no? Yet, in each of those circumstances, conservatives styled as originalists would have said that is "activism", would they not?

 

[NotreDame]

Roe's problem is not a right to privacy. By this I mean the Roe case is actually not about a right to privacy. The majority in that decision had to find a way to at least appear as if their decision was rooted in the Constitution, so Roe became a "woman's right to privacy" case. IMO, that's really a canard (albeit a highly successful one).

Here's why I believe that:

• If we were to take two people at random, one a committed "pro-lifer" and the other someone equally committed to "pro-choice," almost certainly both would agree that a mother's right to privacy does not extend to a point where she and her doctor can decide to end the life of her 3 week old child (i.e. a child born 3 weeks earlier). The reason why they agree is hopefully obvious: both see that a three week-old baby as fully human and thus in possession of a right to live that supersedes any right to privacy of (and almost any other right bestowed on) the mother.
  
  
• Now pull things forward a few weeks, and we're talking about a fetus in the ninth-month of gestation. Unless the public opinion has shifted dramatically in the last few years, most Americans are in favor of abortion restrictions at the end of term. Even though the the child/fetus is in utero, most people agree that the fetus is developed enough to be considered human, and its right to live supersedes the mother's right to privacy and to "choose." More importantly, Roe codifies at least this much. RvW effectively says that a woman's right to privacy can be made subordinate to, say, a 36 week old fetus's right to live if a state wishes to do so.
  
  
• We can keep sliding this scale backward toward the point of conception where we'd find a minority of Americans considering a fertilized egg as being "human" and a majority of Americans considering it not human. Roe imposes on the states a ban on declaring a fertilized egg as human.

The point of all this is to demonstrate that a right to privacy --- including the right as defined in Griswold -- is not the deciding factor in when abortion can and cannot be done legally in the United States. The definition of what is human and what is not human is the deciding factor.

Which brings me back to Roe's glaring flaw. Whether the court's majority acknowledged it or not (and they didn't) Roe effectively establishes a first trimester threshold when defining human life. States are prohibited from defining life as stating earlier than week 12 but may do so after; i.e. to decide Roe the way they did, the court had to establish a de facto legal definition for human life as starting no earlier than week 12, and I argue no where in the Constitution are they granted that authority.

(An aside, posts like the above usually draw a 'Third trimester abortions are almost always done only when the life of the mother is at risk!" reply; yes, that's true, but then it's no longer a privacy issue. The mother has a right to live just as the third trimester fetus does, and where those rights are in conflict the principle of self-defense becomes the justification for the abortion, not privacy.)

This isn’t quite an accurate representation of Roe v Wade. The decision does rest upon privacy as a liberty interest, and said to exist in the concept of liberty in the Due Process Clause of the 14th Amendment.

You are right, the Court, in holding such a privacy interest exists, discussed the status of the life developing inside the woman. But the Court didn’t “establish a de facto legal definition for human life as starting no earlier than week 12, and I argue no where in the Constitution are they granted that authority.” Rather, the Court characterizes this life as “potential life” and “prenatal life.” The Court does not, however, imply or explicitly say “human life” may, can, or does, start but no “earlier than week 12” in a pregnancy. Which is to say, the Court does not express the opinion, not tacitly or expressly, human life begins after week 12 in a pregnancy, the full term delivery of course being different.

This right of privacy in Roe is determined not to be absolute and that the state’s interest in protecting potential and prenatal life increases after week 12 in which the state may impose restrictions for terminating the pregnancy. So, there is an interplay between the potential/prenatal life and the right of privacy to terminate a pregnancy, but the right of privacy is essential to Roe, and the potential/prenatal life is essential to limiting this right of privacy as less than absolute.

 

[NWRatCon]

If you want to have a legal debate about abortion, I'd suggest we take it to the Abortion area. For the purposes of this discussion, however, I think it'd probably be better to avoid the complications of Roe and focus instead on how an originalist would go about asserting the existence of a 9th Amendment right. Justice Goldberg's concurrence in Griswold is pretty much acknowledged as a textbook case example of how a liberal activist formulates the existence of such an unenumerated right... so I'm curious what objections an originalist would have to Justice Goldberg's reasoning.

I'll just put this here. Finding enumerated rights under the 9th Amendment should be an originalist, and conservative, position. If one starts with the premise that the government is one of limited powers, it would be relatively simple to identify such rights. I note, however, that the framers did not view States as limited authorities to the same extent. That was a major reconception of the 14th Amendment.

For some reason, this post appeared well after I drafted it. I think that I had not posted it when I turned off my tablet, and then it posted when I woke it up.

 

[NWRatCon]

As an originalist, I agree. The 9th Amendment protects the unemumerated right of privacy. Indeed, Randy Barnett wrote an article arguing the breadth and scope of unenumerated rights protected by the 9th Amendment. https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1850&context=facpub

I really appreciated being directed to this article. I don't agree with all of the analysis, but I think the premise is an important addition to the discussion, particularly as pertains to the "natural rights" bent of the original drafters. I particularly agree with this paragraph:

This is not to imply that the original meaning of this or any provision tells us all we need to know to apply it to current cases and controversies. Even for a committed originalist, the determination of specific doctrines or rules of law is required to put the original meaning of the Constitution into effect, and these “constitutional constructions” are not reducible to the original meaning of the text itself. Instead, competing constructions must be assessed to see if they are consistent with this original meaning, though not logically deducible from it.7 And for those nonoriginalists for whom original meaning provides a starting point or “modality” of constitution interpretation,8 it nevertheless remains important to get that original meaning correct before moving on to other modalities or to “translate” original meaning into today’s application.9

I'm going to ponder this some more.

 

[NotreDame]

I really appreciated being directed to this article. I don't agree with all of the analysis, but I think the premise is an important addition to the discussion, particularly as pertains to the "natural rights" bent of the original drafters.

Same here. It is an illuminating piece that shows the importance of the 9th Amendment and its breadth at the time, regardless of how some conservatives misguidedly treat the 9th Amendment as a bastard amendment.