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Friday, January 13, 2006
ls Alito an Originalist?
The New York Times is reporting today that Alito is an originalist. This claim has been made, even if obliquely, by the ACS Blog for some time. I appreciate the singular quote that the Times cites in support; but my reading of that sentence spoken by Alito (from The New Republic) is different: I think he routinely claimed the priority of text throughout the hearings -- and gave little indication that he has the stomach for originalism. Although I agree that he'll be closer to Thomas and Scalia on results, I find little evidence in his prior writings, opinions, or answers at the hearings that he will embrace a thorough-going originalist methodology. He'll be less eclectic and pragmatic than Roberts, I concede, but it really is hard to imagine him doing the sort of excavation and historical work that originalists perform.
To the extent that there is some evidence from his prior opinions, there is one nugget (and one that actually might be heartening to the pro-choice camp). Here's how I put in my last New Republic column on Alito:
A final data point on the abortion question: In the 1997 case Alexander v. Whitman, Alito acknowledged the continuing validity of Roe by concurring in an opinion that held it constitutional for New Jersey's Wrongful Death Act and Survival Action Act to deny a cause of action to beneficiaries or tortiously killed fetuses unless they survive past birth. In his very short separate opinion, Alito acknowledged that a fetus is not a "person" under the Constitution. Interestingly, to make his case, he drew upon the original intentions of the framers of the Fourteenth Amendment, under which the plaintiffs were suing. That reasoning sounds Scalia-esque. But the outcome of the reasoning was something else: a setback for abortion opponents.
Here's how I analyzed the question in October:
Is, then, Alito an originalist in the mold of Scalia -believing that constitutional provisions should be interpreted so as to give effect to the public meaning the words had when they were authored? We have precious little evidence to reach that conclusion from a quick search through his judicial opinions. He quotes the constitution's Framers in two Fourth Amendment cases; and in one Speech and Debate Clause context. James Madison and The Federalist Papers get a single nod in an election law decision, but mostly gratuitously. For a judge on the bench as long as Alito, one would sniff more vintage from his opinions if he were a committed originalist.
I may be wrong about this, but I don't think the evidence is substantial enough to make the claim credible that Alito is an originalist. Have I missed some very clear evidence? Please enlighten me.
Posted by Ethan Leib on January 13, 2006 at 02:02 PM in Current Affairs | Permalink
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Comments
I think that you might be reading too much into the fact that Alito has not found much use for James Madison et al. in his opinions as a circuit judge. I just did a bit of quick and dirty research and failed to find a single cite to the Federalist Papers or James Madison in Scalia's hundred-odd opinions on the DC circuit. A circuit judge is bound by Supreme Court precedent before the intent of the framers whether they are an originalist or not.
Posted by: SR | Jan 13, 2006 3:32:53 PM
Fair enough -- your point is not, I think, controversial. Neither, I think, is mine: there just isn't much evidence to go on here.
Scalia, for what it is worth, was public about his judicial philosophy (or was he? I'll defer to people that weren't 10 at the time) -- and was only on the Court of Appeals for four years prior to his elevation. In Alito's 15 years, nothing came up. Admittedly, if all I had for my counter-argument was Alito's failure to cite Madison and The Federalist, I wouldn't have much of a case. But neither do those who want to paint Alito as an originalist.
Posted by: Ethan Leib | Jan 13, 2006 4:24:33 PM
"He'll be less eclectic and pragmatic than Roberts, I concede, but it really is hard to imagine him doing the sort of excavation and historical work that originalists perform."
Looks like you're saying he's a lazier dinosaur, is all.
Posted by: Tlazolteotl | Jan 13, 2006 5:40:01 PM
"[W]e should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption."
I'm not sure what Ethan means by "originalism." If we distinguish the original sense/intension/meaning/connotation of constitutional language from its original reference/extension/application/denotation, we can be originalists about sense, but not reference--that is, take as the constitutional touchstone the sense historically expressed by the constitutional language, but not the tangible particular reference that the framers had in mind. That would be one way to be a textualist but also (a form of) an originalist.
Posted by: Chris | Jan 13, 2006 5:40:05 PM
Here are some comments on some remarks by Roberts that, like Alito's line, suggest a brand of textualist semi-originalism similar to my own.
Posted by: Chris | Jan 13, 2006 5:46:46 PM
If I'm not mistaken, Scalia did not call himself an originalist until after he joined the Court. At his confirmation hearings he disavowed the most aggressive form of living constitutionalism, but went no further.
Posted by: JG | Jan 14, 2006 6:21:12 PM
It's refreshing that we're arguing the level of textual interpretation from a new justice.
Posted by: ryan | Jan 19, 2006 9:02:05 PM
Alito said specifically in his hearings that he thinks the meaning of the Constitution does not change but that it gets applied to new situations, and the judge's job is to interpret how the constant meaning is newly applied. This sounds an awful lot like Jack Balkin's new originalism/living constitution view to me, but I'm a philosopher and not an expert in variations among views on constitutional interpretation.
Posted by: Jeremy Pierce | Jan 27, 2007 1:56:08 PM
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