Tuesday, October 11, 2005

Originalism: be careful what you wish for

I have some questions for those who are clamoring for a strict originalist to be appointed to the Supreme Court.

A little background: in 1973, the Supreme Court famously ruled in Roe v. Wade that states could not outlaw abortion because the Constitution contains a right to privacy that would be violated by such laws. But repealing Roe v. Wade would not automatically outlaw abortion again. It would simply leave that option open to the states.

So here's my first hypothetical for everyone who is a strict originalist: let's say that Roe v. Wade is repealed, and although every state is now free to outlaw abortion, all states defeat proposed laws against it, and actually end up continuing to allow abortion. Would you be satisfied with such a result, since a strict originalist ruling was followed, even though abortion would remain every bit as legal as it is today?

Griswold v Connecticut, the 1965 case that established the right to privacy on which the Roe decision relied, concerned the right of married couples to have access to contraception in the state of Connecticut, which had banned contraceptives even for the married. So my next question is this: If an originalist court overruled the right to privacy which had been established in Griswold, and as a result some states passed laws prohibiting access to contraceptives for married couples and actually enforced those laws, what you be satisfied with the result, because a strict originalist ruling had been followed?

These hypotheticals may indeed be exaggerations, but they are certainly not impossibilities. I think they illustrate two things: (a) whether a person really is a champion of originalism or whether that person actually just wants a certain result from application of the doctrine, and (b) some of the possible problems inherent in strict originalism (at least, as I read it).

Personally, I agree with those who think judicial activism and "legislation from the bench" can sometimes represent an overreaching, and that less is often more. But, as with many things, it's a balancing act; sometimes a bit of judicial stretching can be a way to protect our rights from legislative and/or executive overreaching. Would you feel comfortable if states were free to make laws such as the banning of contraceptive devices for married couples? And, if there were no constitutional right to privacy, what would be the legal principle on which such laws might be overruled, if passed? I wonder in particular what the stance of libertarians might be on this?

One further question: do you know that one of the bases for Roe was what could arguably be called an "originalist" interpretation of the word "person" in the US Constitution? The Court found in Roe that fetuses should not be considered "persons" protected with the full rights as such under the Constitution, because at the time of that document's writing, abortion was legal and fetuses were not considered to be persons.

Be careful what you wish for.

[NOTE: I know I said yesterday I was planning to declare a Miers moratorium. Well, this post is close to being about Miers--but it's not. Look, I didn't even mention her name!--until now, anyway.]


At 11:29 AM, October 11, 2005, Blogger James Becker said...

Hi Neo,

Since I'm not a strict originalist, I can't really answer your question.

I would point out this, though:

If some state outlawed contraception, they would certainly oulaw abortion. In a rather goulish way, abortion is a form of contraception. So both of your hypotheticals probably wouldn't happen at the same time.

When Roe is overturned, which I expect it to be, I expect that your first scenario will probably come true for the most part. Very few states with any population will outlaw abortions in the majority of pregnancies. Many of the states which will outlaw abortion have very few people, and abortions generally aren't available there now anyway, simply because no doctor currently performs one. I believe South Dakota is such an example.

The politics of the situation after Roe repeal will probably shift to the Democrats/Pro choice crowd, as the hard line Republicans will no longer have Roe to protect them and the Pro Choice voices will be able to comprimise to protect their position.

Mr Reid from Nevada sort of gave this game away a few weeks back when he proposed several US Senators as possible Supreme court justices. Several of the people he recommended were very culturely conservative who would overturn Roe. The thing they all held in common was their relationship to plantif attorneys.

I suspect issues such as product liability are more important to the actual politicians who are choosing the justices than these cultural issues. But the politicians need to pretend to care about cultural issues because of the votes behind them.


At 11:40 AM, October 11, 2005, Blogger The Bunnies said...

I can't speak for all originalists, many of whom I'm sure would disagree with me, but I can speak for myself, so I will.

I am somewhat of an oddball in that I am an anti-abortion pro-choice opponent of Roe v. Wade. When life begins is a really deep question on which I doubt we will find a societal consensus for quite some time. Although I think that abortion should be legal, I understand that many people think that it's murder, even though I don't. Therefore, I want the states to be able to decide for themselves.

The worst that abortion could possibly be is murder, something best left for the states to decide. Although abortion could be a right, it is not specifically enumerated in the Consitution like speech or the right to bear arms. Therefore, whether or not the rights of a woman or a fetus should take precedent, to me, is not a Constitutional issue.

I think abortion should be legal, but I don't feel right about making people in Kansas keep it that way if they don't want to. I don't doubt, however, that many in the Pro-Life camp would drop their complaints about judicial activism if the Court declared all abortion to be unconstitutional (much like the South dropped its claims for States' Rights with the Dred Scott decision).

I also think that everybody should be able to use contraception. In fact, I would love it if the Constitution explicitly stated it as a right. But it doesn't. If Michigan (where I currently reside) tried to ban contraception, I would oppose it vehemently. Still, under the Constitution, I don't see how Washington has the right to stop Michigan from doing so if it wishes.

If we don't like something about the Constitution, we can, and should, change it. But to pretend it says things it doesn't gives far too much power to nine men and women hundreds of miles away. What the Court thinks matters far too much, and that's because we've let it "interpret" just a bit too freely.

Although I detest what some states might do with their rights, I believe in democratic principles enough to let the people decide some of these things.

(I'm sure that somebody will bring up the Civil Rights struggle which resulted from the denial of Equal Protection Under the Law, a right most explicilty expressed under the 14th amendment. Therefore, the Federal Govt had every right to intervene).

At 12:33 PM, October 11, 2005, Blogger Kelly said...

I'm going to have to agree with the Bunnies, although I am pro-life. I think these kinds of issues are best left to legislatures, state or federal (I'm not going to go into the Commerce Clause and the 10th Amendment on this one).
For an in-depth analysis of the abortion issue, look here for the moral issue and eventually the issue for the courts and here for the more complex issues that would face legislatures were Roe to be overturned.

At 12:35 PM, October 11, 2005, Blogger Kelly said...

Sorry for double-posting, but I neglected to mention that overturning Roe would not necessarily constitute overturning the right to privacy. There are other grounds on which to overturn it, for example, stating that the interest of the state in protecting fetuses is simply not outweighed by the mother's right to privacy. However, stare decisis would make this one a little harder to swallow, I think.

At 12:46 PM, October 11, 2005, Blogger Sigmund, Carl and Alfred said...

Excellent post.

In the end, I believe, abortion as a 'right' will be more influenced by life as defined by science. Fetal viability today is much earlier than it was 10 years ago.

I was struck by a line I heard on a highly rated TV show. A murdered woman is discovered to have been 7 weeks pregnant. One of the 'experts' is gingerly handed the fetus and says, 'It sure doesn't look like a mass of tissue.'

I too, am pro choice (for many reasons, not the least of which is that as a society, we are not prepared for another reality)- that said, when the vast majority of abortions are for contraceptive purposes, I am uncomfortable.

There are far too many abortions- and pretending that abortion is like a teeth cleaning, is denying the truth.

At 12:46 PM, October 11, 2005, Blogger Sigmund, Carl and Alfred said...

And you wanted to talk about judges...

At 1:53 PM, October 11, 2005, Blogger Minh-Duc said...

Some states will limit abortion (I doubt that any state will ban it altogether), some states will not. That is the beauty of federalism, if a resident does not like it, he can move to a different state that accomodate his belief. At the end, the will of the people is served.

Strick originalist simply defer to the electorates to decide social issues.

At 1:59 PM, October 11, 2005, Anonymous Anonymous said...

I wouldn't agree with the outcomes, to be sure. But sometimes the point really is about process. If states refuse to pass laws banning abortion, I can talk to people and try to convince them why abortion is wrong. Right now, it really doesn't matter what the people think. The Empirial counsel has decided.

If the people want to ammend the constitution to permit abortion, lets discuss it. But what has happened now is that we are alergic to ammending the constitution by proper ammendment, but then have courts that declare the constitution "living" which basically means that the SCOTUS is a sitting constitutional convention.

At 3:23 PM, October 11, 2005, Anonymous The Unknown Blogger said...



I'm waiting for someone to address the point you made in your last paragraph. I wasn't aware of that.

I think, much like "intelligent design," "strict constructionist" and "originalist" are for many people just stealth concepts, used by religious extremists to mask concepts which are otherwise unpalatable to the American public at large.

The idea that the State would have a compelling interest to force a woman anywhere in this country to carry a pregnancy to term against her will (and maybe even against the best interests of her own health) is perfectly in line with a certain type of religious fascism that we are supposed to be fighting a war against.

At 3:58 PM, October 11, 2005, Anonymous Richard Aubrey said...

Unknown. So the belief is "in line" with a religious fascism.
What if a person comes to the conclusion that abortion is wrong without consulting his or her faith tradition, if any?

At 4:24 PM, October 11, 2005, Anonymous The Unknown Blogger said...


Then I guess they just shouldn't have one.

At 4:25 PM, October 11, 2005, Anonymous Larry said...

neo: So here's my first hypothetical for everyone who is a strict originalist:...

Okay, but here's my hypothetical for everyone who's not a so-called "strict originalist" (which I'm assuming includes you, neo): let's say that the Supreme Court gets packed with certain kinds of evangelical Christians who now happily buy into the notion of a "living costitution" that can be interpreted in light "modern values", "contemporary issues", etc. -- which they, naturally enough, interpret to mean not just that the constitution outlaws abortion (Equal Protection clause) overriding any state or federal attempt to legalize it, but also allows federal laws against the sale of contraceptives (Commerce clause), and maybe even mandates the teaching of creationism (also under Equal Protection, say, with a bit of a reach).

I'm thinking myself that I'd almost like to see something like that happen, though I'm neither an evangelical nor even a conservative, but just to provide a vivid object lesson in the meaning and point of "originalism" as an interpretive principle. After seeing what happens to a "living constitution" when the court is filled with people whose values you don't agree with and don't like, I think maybe even liberals would start to look kindly on elected bodies rather than appointed ones as a means of achieving their policy goals.

At 4:57 PM, October 11, 2005, Blogger Ymarsakar said...

One of the problems with abortion via Roe v Wade has been that it has slipped into the healthcare system, and now people get voluntary elected termination of pregnancy. Unfortunately, one has to wonder who exactly pays for that, is there a system that allows people to not pay taxes to health care, or some other government nanny program, based upon their political beliefs?

If not, then leaving the choice to the states, to the the people to be more accurate, is the only just option.

At 5:22 PM, October 11, 2005, Blogger Michael B said...

"Be careful what you wish for."

Indeed, take it kindly, but be careful you're not looking in a mirror when that's being said; there's a whole lot of wishin' goin' on here.

Unknown Blogger,

Your own pieties, both in the form of pious, self-serving reductions as well as your pious self-regard, serve to deflect away from any more serious approach, not to advance the subject. Abortion is a wisdom-of-Solomon situation, an absolute and irreducible conundrum from a broad legal/societal point of view. The elemental rights of the woman are absolutely involved; too, the elemental concern for the absolutely innocent and helpless, another life, is involved. Nice to know you've got it all figured out though - that's where the pious self-regard comes in.

Of ID, you're exercising precisely the same pieties so you may want to stay in the shallows regarding that subject as well.

At 5:44 PM, October 11, 2005, Anonymous Anonymous said...

Originalism isn’t so much about results as it is about process. The “Living Constitution” idea starts with the answer to the math problem and works backwards making leaps and jumps as needed to justify the “correct answer” (which is just the judge’s personal opinion). The “Strict Construction” idea believes that you start from the question and work forward until you arrive at whatever idea the legal math dictates.

If you are interested in the Roe decision, you should read The Brethren by Bob Woodward. In it he basically describes the Roe decision coming not from the Constitution but from the fact that the Justices didn’t want to go home to their wives and daughters if they ruled the other way. At the time even Liberal legal scholars did not believe that Roe would have been decided the way it was. The Supreme Court made new law, and not just new law but new Constitutional law out of thin air.

You will notice that every Anglo-Saxon country has legalized abortion (expect Ireland, but that is a different tale; one that involves the voting practices of the EU) without the pains the US went thru. The reason is simple in those countries abortion was legalized by the legislatures. Democracy worked. The pro-life and pro-choice people got to fight it out, compromise and come to an agreement. If one side lost at least they felt they got their say.
In the US, the Supreme Court stopped all debate on the subject. Democracy was overruled. The abortion debate was no longer one where compromise and public voting mattered. It turned into an all-or-nothing game. Hence 30 years of public turmoil. People basically because pissed that they were shut out of Democracy.

The Left also learned that they didn’t have to get 51% of the voting population to agree with their positions. They only had to get 5 people to agree. The Left, based in elitism to start with, no longer had to deal with the dirty proletarians in an election; they could go straight to these philosopher kings in judicial robes.

You see this attempt to protect the Right to Vote (i.e. Democracy) again in the Gay Marriage debate. When the Mass. Supreme Court forced Gay Marriage on the Mass. population, the rest of the country saw the writing on the wall. The population’s right to vote on gay marriage was going to be taken away in the same manner in which they lost the right to vote on abortion. Here in Oregon, I am sure that we would willingly vote in gay marriage (we are currently voting in civil unions), but we passed an Amendment that stopped the OR Supreme Court from taking our right to vote away from us.

The Constitution is a Social Contract, and should e interpreted under standard Contract law. The words in the document matter. “Public use” means public use. And, in the same way the words in the business contract mean what they meant when the document was signed, the words in the Constitution should mean what they meant when the Constitution was signed. If you want the Constitution to evolve, use the Amendment process. We have used that many times in the past.

In know. “But, I never signed the social contract”. There are plenty pf group contracts you may not have signed but are bound by. Do you think only the contracts you personally signed are the ones that bind you at your company? If you really can’t stomach this social contract, and you can’t get it to change via Amendment, leave. If you don’t leave, you have implicitly assented to the social contract.

Also, just because the SC says something is Constitutional doesn’t mean you have to do it. If an anti-abortion law is Constitutional, you are not required to have an anti-abortion law. If the states want to pass abortion laws, that is their right. If you don’t like how a case is decided under Strict Contructionism the Amendment option is always open. Under the Living Constitution model, the judge has already signaled that they are going to ignore the document and the will of the people; so, an Amendment is merely more verbiage they will ignore.

There is a large difference between being pro-life and a Strict Constructionist. On Roe they agree, but that isn’t necessarily the case.

Strict Contructionalism is about allowing the people to decide how they are going to be governed. Conversely, the Living Constitution is about a group of philosopher kings telling us how to live. It is always amused me how anti-democratic Democrats are.

At 5:52 PM, October 11, 2005, Blogger Assistant Village Idiot said...

Uhh, unknown blogger. Can you make your case without resorting to mind-reading? I have heard many times the accusation that conservatives don't really mean what they say, but some dark dystopic vision instead. Yeah, secretly we want to bring all the adrenal glands back to our home planet, Bribax. Sounds like projection to me. Oh, and "...forcing a woman," "...don't have one," -- get off the bumperstickers, will you?

Though the numbers have moved up and down over the years, the number of people who would allow all abortions and those who would forbid all abortions both number about 15-20% of the population. There is a wide range in the middle of people who would support parental notification, or waiting periods, or mandatory education, or no 3rd-trimester, or no-public funds -- or a half-dozen other limitations I haven't thought of.

I think some states would impose limitations. Even if my state did not draw the line where I liked, I would consider it a vastly superior situation. There is considerable public support to forbid partial-birth abortion, but no one can. On the other end, there is considerable public support to allow abortion in special cases. No state is going to have the consensus for a complete ban. And consensus would be the order of the day. People could keep working to pull the lines one way or another, but with laws based on a societal consensus, they would have to make very persuasive cases. The chilling scenarios outlined by the fund-raisers would be revealed as ridiculous if we were in the middle ground.

Personal belief: Heartbeat and brainwaves start at about 5-6 weeks. I'm prolife after that. There's a nice symmetry with end-of-life decisions. Additionally, about half of the proposed limitations make sense to me, half don't. I used to be mostly prochoice until the hate-rhetoric on that side caused me to wince and rethink during the 1980's.

It is a fair question whether we strict(er) constructionists would suddenly switch sides. Perhaps some would. I doubt there would be many, on the basis of the people I read and the people I know. They outline possible consequences and tradeoffs of their approach, and try to be consistent. The depth and consistency is easy to find, once one has given up the stereotype that it can't possibly exist, or only rarely.

At 5:55 PM, October 11, 2005, Anonymous Anonymous said...

On a slightly different note (hence the new post)

From a political point of view, I would never want Roe overturned. It is too useful of a tool to beat the Dems over the head with. Reps can make promises and know that they don’t have to fulfill them thanks to Roe. Dems on the other hand, are forced to make loonier and loonier promises and nothing stops them. In fact, the MoveOn/NOW crowd demand them. Partial birth abortions, a-OK. Full birth abortions, well it is a women’s right to choose. How about a 4th term abortion?
Roe keeps the pro-life logical extremes from reality, while it does nothing to stop the pro-abortion forces logical extremes.
Plus, while I believe abortion, euthanasia, and the death penalty are all ultimately that taking of a life, on balance, I am OK with all three. And the fact that the Dems are aborting away their future voters is a plus.

From a legal point of view Roe is a cancerous abomination and should be removed before it finishes metastasizing and kills democracy in this country.
The problem with Roe isn’t abortion, it is the acceptance that the Supreme Court can sit as an unchecked Constitutional Convention.

BTW, funny how the “the court is part of the checks and balances” people never seem to support Congresses impeachment check on the Court.
Strict Constructionalism doesn’t mean you dislike Checks and Balances. It just means you also support the Separation of Powers.

At 5:59 PM, October 11, 2005, Blogger Holmes said...

I feel like this was right in my wheelhouse! But, I have not yet taken Constitutional Law II (individual rights), so my mind has not yet been corrupted.

I'll hopefully avoid commenting on the merits of abortion itself. This isn't a state public policy question.

Originalism- yes, many problems. Many, many. As I have stated, it is the worst form of judicial philosophy, except for every other. As one poster noted, if the values were to suddenly swing to the more conservative end of the spectrum (think pre-FDR era, where economic legislation by States and the Federal government was struck down by an activist right-wing court on substantive economic rights grounds. We conservatives don't like to talk about that sort of activism, of course).

To the first hypo- would Conservatives tolerate return to the pre-Roe era, only the damage to the collective moral conscience has already been seared, so each state allows abortion (I assume with varying degrees of regulation; parental notification, third trimester, other issues.)? I would think that for a number of social conservatives, that would not be enough. They would simply want their viewpoint pushed onto society as a whole and would want some kind of anti-abortion Constitutional amendment, ideally. The parellel is slavery. For abololitionists, it was an abomination and not to be tolerated in any State. As to me, I lean a bit more libertarian (and having just inserted the previous sentence, no I would not tolerate slavery) and would be satisfied. At least that situation would allow for a shifting public policy/morality debate which is not possible today and which causes a lot of strife and anger. The same kind of domino effect occurred, by the way, with no-fault divorce systems. Something social conservatives have not even tried to change, which I find odd.

To the second situation, I would think that would be fine, even though I don't agree with the policy. As Thomas Sowell wrote in Lawrence v. Texas, dissenting, which struck down the sodomy law, (paraphrase) "It would not be my preference as a legislator to use state resources to pursue such a law, but I am not a state legislator. And it is not the Court's role to take a stand on such public policy issues." Economic legislation by States since the FDR Court has affected numerous aspects of people's lives. In one case, a state decided, based on influence from the Opthamologist lobby, to disallow the use of eye technicians, as they were affecting opthamologists' business. Someone's entire livelihood was taken away in the process, but that was acceptable regulation by the State. (My wife is a nurse practioner, and would not be able to use her most valuable skill in a state like Georgia, which does not allow nurse practioners to write prescriptions- mostly because the AMA lobby is so strong there). The difference with States is that people can move. They are public policy trial areas.

Would I want my state to interfere into such matters (even though I'm one of those crazy evangelical Christian-fascist types one poster commented about)? No. And I also am afraid, as many are now and as many Founders were, that the Bill of Rights would become a finite listing of rights held by the people. But unless 2/3 of the country can agree to these unanswerable questions of "What is a right?" Leave the States their power as allotted to them via the 10th amendment.

Last note: the Founders saw the States as more responsive to the people and as inherently more protective of rights than a centralized power like the Federal government (given their experience with ol' King George III). After the Civil War and after the Civil Rights movement, certainly our perception of the States as a guarantor of rights changed. But note that after the Kelo decision (eminent domain case and another deplorable SC decision), a number of states have passed or are in the process of passing legislation prohibiting such takings actions. So there is hope.

My question to liberals/moderates, many of whom were talking Federalism after the 2004 election and with the Republican party controlling all branches of government, would you find a post-Roe overturned world acceptable where each State banned abortion (or severely restricted it)? How tolerant are you?

And if you waded through all of that (which may or may not make sense after a full day of law classes), God bless you.

At 6:15 PM, October 11, 2005, Blogger Holmes said...

Law side note: many think the Bill of Rights always applied to the States- it did not. Until the 14th amendment, the States were free to ignore the Bill of Rights, but after the passage of the 14th, the Bill of Rights began to be "incorporated" by the Court to apply to the States. Almost the entire BoR is now incorporated, but a few provisions like the 2nd amendment have not been.

At 8:00 PM, October 11, 2005, Anonymous neo-neocon said...

I wanted to mention an experience I had leading up to the 2004 election. A couple of my friends said that one of the many reasons they were voting for Kerry was that if Bush were to be re-elected, he would appoint people to the Supreme Court who would overturn Roe v. Wade. When I asked what they thought that would actually mean in terms of a policy change, some of them said it would mean abortion would be outlawed. When I explained the actual legal situation to them--that the right would revert to the states, and that I doubted most states would outlaw abortion, and thus there would not be a huge change in the practical sense--I don't think they quite believed me. And they seemed surprised that I wasn't particularly upset at the prospect.

I tend to be more originalist than not in terms of my own preferences for the court. I think, however, that at least some originalists are more interested in outcome than process, and if the outcome were to be one they didn't like, they'd chuck the originalism soon enough (no one on this thread, of course!).

I also think that, originalism or no, justices do in fact decide cases based at least partly on their prior biases. There is simply no way to avoid it, because words are always open to interpretation, and there are always ambiguities as to what the framers meant, and people fill them in with their biases.

At 8:02 PM, October 11, 2005, Anonymous Anonymous said...

Wasn't there a case recently where a boyfriend was asked by his girlfirend to kick her in the stomach as to induce abortion, the male was charged for murder and sent to prison while the female was protected under Roe vs. Wade.

I find it odd that a law of the land provides an impregnated female with absolute protection under the law while another is given no equal protection,choice or decision in the matter. Of course, to further the crazy logic supporting Roe vs. Wade is that this absolute protection under the law occurs in a limited time-frame of around nine months yet the moment the baby moves through the birth canal the female then has the right to sue the male for child support. Either the male receives rights to his sperm or he doesn't, moving through the birth canal should not alter his protection. Seems to me if a female is given complete protection to choose whether to continue the pregnancy or whether to abort she must then assume total responsibility for her decision either way. In possessing such a right doesn't she also assume all the burdens associated with reproduction?

Doesn't Constituional right to Equal Protection Under the Law allow the males to receive the same protection? Why is it a fetus for Her but a human being for Him. The problem I have with the abortion movement's pro-choice logic is that protection under the law is gender specific and falls in a specific time frame.

The conflict with Roe vs Wade is that it's not based upon ideals found in a democracy and is polluting the body politic with its irrational justifications.

Morally I don't believe it a healthy cultural practice but if this issue were properly legislated into law I would uphold the law. Crazy or not.

At 8:05 PM, October 11, 2005, Blogger antimedia said...

I'd be tickled pink if both Roe v. Wade and Griswold v. CT were overturned. Because it's the right thing to do according to the Constitution. It wouldn't bother me in the least if some state made contraceptives illegal for married couples because it's the states' right to do so. And it's the people's right to kick the idiots out for passing such a stupid law.

The closer accountability is to the people, the more the people control the process. In the end, the people are served, and that's what I want from the federal government - power to the people.

At 8:38 PM, October 11, 2005, Blogger Holmes said...

Sorry for all of the errors in my post above. Yikes.

Neo, you have a great point about originalism and the flexibility within the words themselves. What does "Interstate commerce" actually mean? Chief Justice Marshall had a very broad interpretation of interestate and commerce, but the Federal government back then did not pass a lot of legislation, so it was kind of a tree falling in the woods. The definition then narrowed through the Lockner era, then post FDR had a rather broad interpretation, then narrowed a bit in the early 90's, and now back to being an absurd "aggregate effects" test where marijuana grown in the backyard for personal consumption constitutes interstate commerce.

I just spent an entire month studying what an "unreasonable search and seizure" might be under the 4th amendment. Here, flexibility is built right into the Constitution.

But the idea that the interpretation must be Originalist in nature, and so at least have a pretext of Founder intent plus textual analysis, puts the Court in the correct starting point. Otherwise we're cascading down the proverbial slippery slope towards Substantative Whatever We Want Rights and Whatever We Decide Powers.

At 9:18 PM, October 11, 2005, Anonymous Larry said...

neo: I also think that, originalism or no, justices do in fact decide cases based at least partly on their prior biases. There is simply no way to avoid it, because words are always open to interpretation, and there are always ambiguities as to what the framers meant, and people fill them in with their biases.

Sure they do. But the point (as I see it) is that it makes a difference whether judges believe that they have an obligation to respect the intent of a law, or if they believe that they have both the ability and the moral right to
include not just original intentions, but also historical circumstances, foreign judgments, changing mores, or what have you. Even give agreement on the former position, some people will still make mistakes, or differ over interpretations -- and some will just be unscrupulous, careless, or indifferent. But they'll no longer be able to hide behind hand-waving about a so-called "living constitution".

At 9:43 PM, October 11, 2005, Anonymous neo-neocon said...

Holmes: agreed!

At 10:12 PM, October 11, 2005, Anonymous Anonymous said...

Carol Herman, here. Roe is in a safe harbor. It's more than 30 years old. And, Rehnquist's court fielded 3 attempts at overturning it. And, didn't.

Among republican politicians, Roe is like Social Security. The party that takes it away is the party that frizzles itself on the 3rd rail.

Also, in Orwell, he writes that all governments exist between two poles. And, the pendulum swings. Here, in America, I think, we've gone through out "liberal" period; and we're heading towards conservatism. But not religious zealotry. As to the Christians who vote their faith; it's well to remember they voted Jimmy Carter into office in 1976. And, they abandoned the republican party. It's not as if you think that the base were all that devoted.

On the other hand, say all you will about moonbats. They vote for the democratic ticket; hook, line and sinker. Fewer of them now? Yup. That's because the republicans have found ways to add voters to their roster. As long as they don't let big business frighten too many customers away. And, of the remaining customers, when the religious right starts off in tongues; or talks about rapture; more than half the audience just goes home.

By the way, in 2004, Dan Rather disgusted so many people, it's been said 4-or-5-million more Americans cast votes for Bush than would have happened if C-BS did not involve itself in fraud.

Do I have a dream ticket for 2008? You bet. Chenney/Guiliani. And, to get there the president has to freeze off the loonier requests that flood out of his base. Can he do it, you ask? Sure. He's got the guts to do what's best for the whole country. While the base really isn't all that empowered ... because how many of them are out there, elected to office?

The Supreme Court looked ripe to them, because it would have given them 1/3 of the government, with appointments for life. But it would have killed the republican party.

At 10:26 PM, October 11, 2005, Anonymous crosstalk said...

This thread has split into several issues, with the common link to the abortion debate. But first, a pet peeve: If you're against abortion, don't have one is, to many, morally analogous to If you're against slavery, don't own one.

In essence, a state outlawing abortion is making use of it's authority and power to protect a helpless class of people. It is identical in concept with other child protection laws which law special requirements on adults/parents/guardians concerning children. (Requiring an able person to feed a child until other provisions can be made is similar to requiring a mother to carry a child to term so that other provisions can be made for it.)

Mixing in the "right of privacy" is misleading. For the Federal government, that right is guaranteed in Amendments Nine & Ten. As far as the Federal government is concerned, it has no constitutional power to abrogate that right.

The various states are another matter. Holmes pointed out the expansion of the U.S. constitution to the extent that state constitutions (and laws) are mere codicils to the Big One. That should not be the case, under an originalist construction.

Evenso, many of the state constitutions have some equivalent to a Bill of Rights, and there may well be a state right to privacy. Thus, as many have noted, this should be a State, not Federal, matter.

The "right to privacy" is a bit vague in any event. Does it include...
- Contraception?
- Shaking a baby in the privacy of your own bedroom?
- Luring a stray cat into your home for a bit of vivisection?
- Homosexual erotic behavior?
- The use of hot cigarettes as a form of punishing a baby for crying?
- Cockfighting?
- ...?

These examples suggest a principle concerning a right to privacy, namely that it does not include the right to behavior which harms a more helpless human being. (Some would extend this to animals totally; others would add humane arguments.)

Which brings us back to abortion. In essence, outlawing abortion protects a helpless class of people: unborn children. It burdens people with a positive responsibility to protect the child until such time as the protection duty can be turned over to someone else.

Or so it seems to me.

At 11:26 PM, October 11, 2005, Anonymous strcpy said...

Generally I'm a very strict originalist.

"So here's my first hypothetical for everyone who is a strict originalist: let's say that Roe v. Wade is repealed, and although every state is now free to outlaw abortion, all states defeat proposed laws against it, and actually end up continuing to allow abortion. Would you be satisfied with such a result, since a strict originalist ruling was followed, even though abortion would remain every bit as legal as it is today?"

Yes, I would be satisfied. To use a current hard example the Schiavo case - I didn't like the outcome but it was perfectly within the states right to do so. It's what happens when you recognise thier right to do so. Same as with all of our freedoms - free speech means the KKK and Black Panthers can exist and say what they want even though I think they are corrupt and a blight on this planet.

"So my next question is this: If an originalist court overruled the right to privacy which had been established in Griswold, and as a result some states passed laws prohibiting access to contraceptives for married couples and actually enforced those laws, what you be satisfied with the result, because a strict originalist ruling had been followed?"

Sort of a straw man (I don't think you meant it as one). The "right to privacy" isn't where this one fails. For one, the decision quotes the first, third, fourth, and ninth as being taken together make that law unconstitutional - and I would agree (well, except the third - ti doesn't apply). Where they went wrong is ennumerating it as "new constitutional right", there was never and is still not this mystical new right. Abortion breaks down in that those amendments do *not* cover it, only this new one that suddenly sprung up can be interpreted to mean such (especially given that there is no text to clarify the right it can mean anything the justices wanted - and is preciesly why it was used).

"if there were no constitutional right to privacy, what would be the legal principle on which such laws might be overruled"

Too broad a question. Would need a case by case question. For much of it I would guess the fourth amendment (the "search" part of "search and seizure"). But it would depend on your specific example. In many cases the first and 9'th would also work.

"do you know that one of the bases for Roe was what could arguably be called an "originalist" interpretation of the word "person" in the US Constitution? The Court found in Roe that fetuses should not be considered "persons" protected with the full rights as such under the Constitution, because at the time of that document's writing, abortion was legal and fetuses were not considered to be persons."

Don't confuse rationalisation with being an originalist interpretation. with enough of that you can "prove" nearly anything and is the basis of much of the "legislation from the bench". From a certain point of view it can be said that the first amendment only applies to govt approved press, the second only to the govt sponsered/controlled military, that the third amendment allows law to supercede soldiers taking your home anytime, the fourth is a collective right and not an individual, in the fith everyone was milita then and murder is a time of "public danger", and I could go on for each. Each one of them would have basis is what is technically written, just clever wordplay is required to change what they mean (also what I call "mental mastrubation").

Plus, you do realise that a strict originalist also sees the constitution as changable/mutable - there is a whole section of it describing how. There are quite a few decisions I like the outcome but greatly fear the damage it will do as time goes on due to thier reasoning.

At 6:22 AM, October 12, 2005, Blogger terrye said...

I used to think that originalists did not want to see legislature from the bench but after their over the top reaction to Meirs I think they just want to control the court. In other words they want to decide what is and is not legislated.

Most hard core prolifers I know will not accept the decision of the state any more than they did Roe v. Wade, unless it is the decision they want.

And if it was as simple as just allowing the state legislatures to make laws there would not need to be a Supreme Court. The very fact that it exists tells us that people interpret the same words differently and that the founding fathers saw the need for an independent judiciary.

Slavery is a good example. The states did not make slavery illegal, a war and a war president did.

If the Supreme Court had decided the other way in the Dred Scott decision do any of us believe that the mind of one southern slave owner would have been changed?

At 10:15 AM, October 12, 2005, Anonymous Anonymous said...

Judge Robert Bork actually invented the theory of "originalism"-- trying to figure out through historical research what the Founding Father meant when they wrote the words in the Constitution, and sticking to that definition as closely as possible.

Such an approach precludes discoveries of "new" constitutional rights that appear nowhere in the text of the Constitution.

Few conservatives are ready to go as far as Bork, but they do advocate, like Scalia, for a "dead" Constitution, meaning one that doesn't change with the whims of the current Justices, some of whom advocate for a "living" Constitution, meaning one whose meaning shifts arounds like a weathervane as the current Justices sees fit.

As for Roe v. Wade, I'm a New Yorker. Abortion was legal in New York years before Roe was decided, and if Roe were repealed tomorrow, female New Yorkers would retain their right to abort their unborn children. To change that, I'd have to lobby the state legislature successfully. (I happen to believe that very few states would outlaw abortion, given the current political climate). We live in a country where some legal rules differ from state to state, and create a diverse legal environment. That's healthy, because it enables different states to experiment with different social policies, and for the nation as whole to compare the outcomes of those differing policy choices.

The most important point is that most policy decisions belong in the hands of our elected legislatures, not in the hands of the Justices, who should be enforcing those policy decisions unless constitutional rights are at stake.

If you think rights should be added to the Constitution, then amend it, as the Framers intended.

At 5:01 PM, October 12, 2005, Anonymous Duckman said...

I know I'm repeating what others have said, but it's worth echoing.

I'm absolutely confident that I would be happy with an originalist SCOTUS. While I might not like the decisions that they hand down, ***it is not the job of the judiciary to make decisions that I like or dislike***. It is their job to uphold the constitution. I repeat for the dense: the judiciary is NOT there to satisfy "right and wrong" or decide how things should work or move us in any direction. They only exist to ensure we abide by the constitution. They are the referees. Say that aloud. They make sure we play by the rules.

Congress is the ball team. If the *people* don't like something, they talk to their representatives who manipulate laws and if necessary add amendments (say specifically giving us a right to privacy). The legislature is responsible for effecting change. Period. Nobody else.

Freedom and our constitution aren't painless processes folks. Like capitalism, democracy takes time to work and can be slow. The benefit is that the system gives people the freedom to make their own mistakes. Freedom.

I pray for the day when our federal government steps back and the states take back the power given to them by the constitution. Today, we elect representatives from far away cities who decide much of what happens in our country. If the meat of decision making was local, I suspect that issues would become more important than the "which devil do I hate less" or "who embodies my philosophy more" discussions we have today. I look forward to the day issues become more important than appearances. Maybe it'll never happen, but I hope it does.


At 8:30 PM, October 12, 2005, Blogger David Aitken said...

Yes, I would still support original interpretation. I think the Constitution means what it says. I am not opposed to change and I understand that there can and should be changes over time, which the founders allowed for. I understand and support things like equal rights for all (voting, etc) where modern day interpretation clearly warrants change, but the Supreme Court and Congress lost their way a long time ago and needs to be pulled back towards original interpretation.

At 2:35 AM, October 13, 2005, Blogger Cutler said...

I don't care at all about abort specifically, though I think Roe vs. Wade was an awful decision that set an awful precedent.

I care about a court that's been stepping over the Constitution, even using foreign law to supercede it, in order to rationalize racial preferences, CFR, and other pieces of disastrous and unconstitutional pieces of legislation.

At 6:34 AM, October 13, 2005, Anonymous john moulder said...

The first time Bush ran I voted for Gore & I don’t remember Bush’s campaign promises. The second time I voted for Bush but had my ear cocked mostly for WOT campaign pronouncements & can remember little else. What I’m driving at is: Has Bush ever promised to nominate SCOTUS candidates that would be guaranteed to overturn Roe versus Wade? I keep reading how constructionists feel betrayed because Bush promised this & promised that but I can’t recall any such promises.

I am not knowledgeable about Constitutional legal issues but if enough citizens are anti-abortion it would seem that an amendment is called for. An amendment forbidding abortion would make Presidential choice of SCOTUS nominees & SCOTUS opinion regarding abortion a moot question, wouldn’t it? I’m wondering why anti-abortionists haven’t tried this route. There are already 17 amendments passed after the Bill of Rights. That’s quite a few considering the young age of the nation & the genius within the original document – on average a new amendment about every 13 years(2005 – 1787 = 218 years divided by 17 amendments = 12.8).

At 1:04 PM, October 14, 2005, Anonymous Anonymous said...

"That’s quite a few considering the young age of the nation & the genius within the original document – on average a new amendment about every 13 years(2005 – 1787 = 218 years divided by 17 amendments = 12.8)."

I don't think so. If you look at how many were passed earlier, and how many were passed recently, I think you will see that it gets harder and harder.

At 11:10 AM, October 15, 2005, Anonymous john moulder said...

Anonymous said: “I don't think so. If you look at how many were passed earlier, and how many were passed recently, I think you will see that it gets harder and harder.

Is it really “harder”? Has the amendment process, which is the same as when the Constitution was written, become somehow “harder”? Or is it that needed adjustments to the document, such as the issue of slavery, having been made by amendment, leave fewer pressing issues to trigger the amendment process?


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