Phony Originalism
by Kevin R. C. Gutzman on August 03, 2009
Since the days of Ronald Reagan and Edmund Meese, the Republican Party’s position has been that judges should be bound by the people’s understanding of a particular cons utional provision at the time they ratified it. This notion goes under the name “originalism.” Recent events, including the Republican response to President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court, reveal that the party is a highly unreliable vehicle for this principle.
So, for example, the Republican Party decried the Supreme Court’s decision in Kelo v. City of New London (2005) that the Fifth Amendment did not bar New London, Connecticut, from seizing private property for a public purpose. According to the stock criticism, the Fifth Amendment left open the possibility of government seizure of private property only for public use, not for public purpose. What this criticism omits, however, is that the Fifth Amendment, like the rest of the Bill of Rights, is a limitation solely on the Federal Government. Since the government of New London is not the Federal Government, an originalist reading would hold the Fifth Amendment inapplicable.
Just try explaining this to a Republican audience. Not only do Republicans argue for application of the Fifth Amendment’s Takings Clause against state governments. They also vociferously insist that the Second Amendment is enforceable against the states. In fact, Republican lawyers have recently found success in persuading some federal judges for the first time to treat the Second Amendment as enforceable against the states. It once was only the left-most Supreme Court advocates (for example, those who argued against prayer in public schools) who argued for the Incorporation Doctrine. Now, however, this is a “conservative” position and “conservative” public-interest lawyers take this position before the Supreme Court.
The Bill of Rights as an obstacle to federal infringement on state authority was only one element of the underlying principle of the U.S. Cons ution. This is “federalism,” the notion that the states (meaning the sovereign people of each state) had delegated only particular powers to the Federal Government. In the Reagan era, with Edmund Meese as attorney general and Charles Cooper as assistant attorney general, this principle received an emphasis it had not since 1937.
Now, however, the Republicans take an energetic position on the wrong side of the question. So, for example, Sen. John Thune of South Dakota recently offered his Concealed Carry Amendment to a defense authorization bill. Under this amendment, if someone had a right to carry a concealed weapon in his home state, he would be given federal authorization to carry it in states he might visit. What cons utional provision empowers Congress to force this policy upon the states? Don’t be silly.
Of course, the question of gun rights is not the only currently live one that excites core Republican voters. Therefore, it also is not the only one that prompts Republican office-holders to ignore the principle of federalism. In 2006, the editors of National Review endorsed the notion of an amendment to the Cons ution defining marriage. Why should the Federal Government impose a single definition on all the states, who have always had complete control over such questions? Because federal judges cannot be restrained, those editors reasoned, from legislating their own definition. In other words, if you don’t trust one fox, put the whole fox family in charge of the chicken coop. Alas, to argue for augmenting federal authority seems to be what the editors of National Review reflexively do. Who cares about the Tenth Amendment’s reservation of all undelegated powers to the states?
No wonder Democrats and pro-choicers generally say that the Republicans are hypocritical in invoking the principle of federalism against Roe v. Wade. What is a “principle,” they rightly wonder, that is only invoked when it cuts in the desired direction? That is a good point. It gains additional force from the fact that Republicans do not even invoke it consistently across all abortion disputes. In Gonzales v. Carhart (2007), the Supreme Court upheld a congressional ban on partial-birth abortion. In a concurring opinion in that case, Justices Antonin Scalia and Clarence Thomas noted that the Commerce Clause, as properly understood, did not give Congress power to enact such a ban. However, they said, so long as the Court’s unfounded Commerce Clause precedents stood, Scalia and Thomas would join in extending them to this new area.
Principled originalism in action!
Republicans also generally join in opposing pro-black discrimination in government hiring, firing, promotions, contracting, and other such decisions (and cheered the recent Ricci decision). They do this on the ground that the Equal Protection Clause of the Fourteenth Amendment requires color-blindness on the part of government. This is of course a morally appealing argument. But the issue is not whether the Republican policy positions are appealing; that is a legislative question. The question is whether the Republicans’ cons utional position has merit.
Here, as in the other areas described above, it does not. The Equal Protection Clause was not intended as a wide-ranging mandate for government equality, but to have much narrower application. The Supreme Court long recognized this fact. Conservatives do their reputation for intellectual honesty no favors by arguing for extension of unfounded precedents.
In short, then, Republicans generally do not stand for principled adherence to originalism, which once was called “the Cons ution.” Across a range of questions, they mirror their Democratic opponents in advocating judicial legislation of their preferred legislative outcomes.
Here's a thought experiment:
Had Gore been ahead by a few 100 votes in 2000 FL, would the radical-rightwing-activist Supreme Court have knee-capped the recount to defeat their puppet dubya?
Scientific answer: NO.
We'd be counting "OVER AND OVER AND OVER AND OVER", and James Baker would be howling for recounts for months.
real "judicial activism" happens in secret anyway. Its always, "we make this odd ruling when writing this opinion" BUT "it doesn't apply in this case" so nobody gets upset, the ruling is never appealed, and the good facts against it go away.
Then when the next case rolls around the court enforces the bad ruling and says, "but look, I had no choice, I was bound by precedent."
No.
People don't understand the Cons ution, and its relationship to Federal vs. State rights. It is all lumped into "The Government" in their eyes. Heaven forbid they have to understand not only the US Cons ution, but their state's as well!
Point is moot, anyway. As far as I can tell anymore - if Congress passes it, and the President signs it; IT'S LAW - period. There are no recognizable limits to federal power anymore.
Okay, I'm not too big into arguing about how cons utionally correct certain things are, but this quote made me stop. If amendments to the Cons ution only limit the federal government, then does that mean that if Florida for whatever reason wanted to limit free speech, they could? That Utah could establish Mormonism as the state religion? Could Alabama reinstate slavery if they wanted to and their own cons ution permitted it?
Again, I'm no expert, but really?
That was nine years ago. Are you still that butthurt over the 2000 election?
Go back and click the "Incorporation Doctrine" link.
It's talking specifically about the 5th Amendment, which applies to the federal government; the 14th Amendment's due process guarantees apply to the states.
And yeah, check incorporation regarding the Bill of Rights in general.
I'd recommend reading The Nine for some interesting background on that case.
That was nine years ago. Are you still that butthurt over the 2000 election?
100s of 1000s of people are dead, including 1000s of US military, thanks to SCOTUS electing dubya, head, and their killer mob of neo-c*nts.
You are wrong because the basis they stopped Florida was because Florida was violating their own laws.
That's the sign of "Liberalism as a mental disorder." They obsess over the last president.
That was nine years ago. Are you still that butthurt over the 2000 election?
I wonder what the chances would be of another serious attack on our soil, killing even more than 9/11, if we hadn't taken action. Granted, there's no way to know. However, to imply those people dies in vein is reckless, and an insult to veterans like myself, who served for more than one hitch in the military.
Go yourself.
Pretty sure it was Equal Protection based on county standards, after which they halted the election because they couldn't get a valid recount. I wonder what you would think if the positions had been reversed. Actually, I know exactly what you would think.
you mocked the deaths of soldiers that opposed the war in iraq.
go yourself.
The military in wars-of-choice in VN and Iraq DIED IN VAIN.
There was NO BENEFIT to USA from the war in VN.
And THERE IS NO BENEFIT to the USA (excluding the oilcos) to the war in Iraq.
DIED IN VAIN for the follies and lies of politicians.
Military are employees, not DECIDERS.
(I note that the INSANE, career-padding military now wants 400K men in Afghanistan, which just happens to be the number that Shinseki wanted in Iraq and which got him fired by criminal rummy)
I'd have to read the opinion again. Been a long time, but the equal standard may have been part of the way the law was being violated.
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