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Sunday, July 31, 2005

The Nebulous and the Constitution

                Because of its long lasting, and yet in some ways subtle, effect on the law and society at large, as well as its connection to our field, the nomination of a Supreme Court justice is one that is of particular interest to legal thinkers.  Little seems to be known about the President Bush’s nominee, Judge John Roberts, with the exception of the refrain that he favors judicial restraint.  His views on judicial restraint hold that the courts should limit the controversies into which they inject themselves, avoid deciding more than the narrow matters necessary to decide the cases before them, and avoid reading new rights into the Constitution.  Instead, judges should limit judicial inquiry to asking whether the statute is a valid act of legislation, that is, merely whether the Constitution allows certain legislative acts. 

While many are sympathetic to the caution promoted by Judge Roberts' position, this popular conservative view on judicial restraint presents two distinct problems, both of which push legal argument towards constitutionalization from different directions.

The first problem is that even in the paradigm of judicial restraint, Judge Roberts and others endorse a deference for precedent and a respect of the coherence of law which may inherently be in tension with the other values envisioned by advocates of judicial restraint.  Because precedent and coherence are valued, there is a Dworkinian or Interpretivist impulse to extrapolate or extend new rights from related prior jurisprudence.  Thus coherence, by allowing the extension of rights which naturally spring by analogy from settled bodies of law, may undermine some of the restricting value of judicial restraint.  Obviously, Roe and Griswold are (prime) examples but many less controversial rights will more naturally extend from the law which precedes.  It is of course possible that in many places coherence will counsel for the restriction of rights as well.  However, if there are some base line rights, coherence provides a powerful tool to reason why the extension of rights fit into that body.

The second problem involves what I term the "con of original intent," that is the view that by adhering to a restricted “original intent” model of the Constitution, conservatives have taken a neutral view, while liberals, who seek to ground new rights in the Constitution are somehow radically foisting new rights onto society at large.  The truth is because the Constitution is silent on many issues, most especially those that by way of modernization could not have been envisioned by even the sagest of historical legislatures, a decision that a right is not recognized by the Constitution’s original intent is no more neutral than a decision that it is.  Deciding that neutral silence means denial is no less a political decision, in need of defending, than to argue that a right ought be recognized. 

The neutrality of silence presents another important tension with judicial restraint.  If the Constitution is silent on many matters, where then in the legal sphere can conceptions of new rights be born?  Even if sympathetic to the view that the legislature is responsible for the democratic governing of society, this view ignores what people mean when they argue for speak of having a “right.”  Of course we recognize that a benefit, once conferred, legislatively or otherwise, may give rise to certain related rights.  Still, those who believe in a right are arguing for something deeper.  The very soul of a right, to borrow the phrasing, is that one need not approach as a supplicant asking for favor, but rather one may insist on their due.  Those who believe in a right, the woman who demands she not be discriminated against or the home owner who demands that the government return his property, believe in it precisely because it need not be legislatively or democratically granted.  If this is true then judges perform a critical function in recognizing rights that cannot be held hostage to democratic consensus. 

Some people, of course, believe that “rights” talk is greatly over used in any case.  Bentham famously termed talk of natural rights as “nonsense on stilts” and an extremist may argue that rights may not be found but rather only democratically (or using some other comprehensive world view) recognized.  Yet this is at least a controversial view and must be defended from the powerful arguments of those who insist on a right which transcends democratic consensus.  And it is the absence of any other field in which to ground our rights talk in the legal sphere that so quickly leads to the contitutionalization of much of our legal discourse.

This is not a popular opinion today; conversation is centered around the idea of judges run amok.  I am sympathetic to the threat to democracy posed by judges creating new rights outside of the legislative process.  But I do wonder, where in this quiet landscape could one turn for the recognition or at least argumentation of previously unrecognized rights?  Does this view of judicial restraint and the Constitution allow for important debate and the emergence of not just legislative governance, but of our rights?

Posted by ekowyankah on July 31, 2005 at 12:43 AM in Law and Politics | Permalink


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Since I am evidently one of the more conservative of those who comment here at Prawfs, and likely one of the even fewer originalists to do so, it behooves me to say a few words in dissent.


In particular, I take issue with several parts of the following statement: The second problem involves what I term the "con of original intent," that is the view that by adhering to a restricted “original intent” model of the Constitution, conservatives have taken a neutral view, while liberals, who seek to ground new rights in the Constitution are somehow radically foisting new rights onto society at large.Let me begin by noting that I presume that by "original intent", you mean originalism as a broader doctrine, since original intent has long been the black sheep of that family of views (see H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885), and is generally ignored (or categorically rejected) in favor of original meaning (see, e.g., Randy Barnett, An Originalism for Nonoriginalists, 45 Loy. L. Rev. 611; Antonin Scalia, A Matter of Interpretation). I will proceed on this assumption. In particular, I object to the characterization here of originalism as a cover for conservative judicial activism.


First, I take issue with the underlying definition of "judicial activism". Contra Thomas Keck (see The Most Activist Supreme Court in History) and the the recent New York Times propaganda piece So Who Are the Activists?, it is not Judicial Activism to strike down a statute. The act itself is inherently neutral; it is a tool, simply part of the judicial power. It cannot be judicial activism to strike down a statute that actually is unconstitutional. Rather, a decision is an act of judicial activism if it uses that judicial power to strike down a law that is not unconstitutional, or to uphold a law which is unconstitutional."Activism" - ac·tiv·ism (n.) - The use of direct, often confrontational action, such as a demonstration or strike, in opposition to or support of a cause.

"Action" - ac·tion (n.) - The state or process of acting or doing.The conflation of "action" with "activism" is false; the court cannot be activist simply by adhering to the constitution. By contrast, it cannot be anything other than activist if it defers to the legislature by creating legislative authority where none existed. One can be activist not only by taking action where none is required, but by refusing to take action when it IS required.

An apt example is provided by Kelo; it is argued by some that Kelo was not activist because it merely granted the state legislatures discretion. This strikes me as being similar to saying that, should the flag burning amendment currently percolating through Congress pass and be ratified, the Constitution has not really been ratified, because the amendment doe not ban the burning of the flag, it merely gives the Congress authority to ban flag burning at its discretion. This, of course, is ridiculous; a constitutional protection will have been exposed to the discretion of the legislature, which is precisely what a right is placed in the constitution to prevent (see discussion infra at part IIb). Of course, unlike Kelo, that removal of a right will at least have been democratically ratified; by contrast, Kelo is judicial activism precisely because it amends the effect of the Constitution without recourse to the Article V amendment process. The Supreme Court grants the legislature authority where the constitution denies any. In doing so, it fundamentally alters the effect of the Fifth Amendment without the legitimate amendment process.

Although Kelo certainly "adheres to precedent", stare decisis unanchored from the text of the constitution is no virtue; as Justice Thomas’ dissent notes:"Our cases have strayed from the Clause’s original meaning...The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning." (Citations omitted; emphasis added)The court failed to restrain the government when government was violating the constitution; the decision was therefore activist "by refusing to take action when it IS required".

I will register a concession, if it as a concession, which is that it is certainly true to say that there are conservative activist judges, and it is also fair to say that many (if not most) conservatives do not want originalists on the bench as much as they want conservative activist judges. But this, of course, goes to my point: a conservative activist judge is not an originalist, and an originalist cannot by the same terms be an activist while adhering to the method (which is not to say every originalist always does).


By further implication, calling originalism a "con", and by suggesting by heavy inference that it does not take "a neutral view" and is practised solely by conservatives, you are suggesting that originalism is an intellectual veil - or, at worst, merely a fig leaf - for a conservative agenda. This is one of the sillier arguments against originalism, in my view.

Would you argue that child pornography is part of the Conservative agenda on the strength of Justice Thomas' opinion in Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002)? What about marijuana; is liberalization of hash part of the conservative agenda, as the application of this theory to Justice Thomas' opinion in Gonzales v. Raich, 03-1454, suggests? Is Justice Thomas' opinion in Kelo v. New London, 04-108, a part of the vast right wing conspiracy to undermine private property rights against big business? Do Justice Scalia's opinions in the series of cases which culminated in Blakely v. Washington, 542 U. S. 296 (2004) hide the Republican agenda to reduce criminal sentences? Or his joining the majority in Texas v. Johnson, 491 U. S. 397 (1989), demonstrate a deep-held desire among Republicans to see Old Glory go up in flames? Gosh, what schizophrenia in the Vast Right Wing Conspiracy lurks when Scalia and Thomas reach wildly different results from the application of Originalism - as, for example, in Raich, supra; National Cable Telecommunications Assn. v. Brand X Internet Services, 04-277, or McIntyre v. Ohio Elections Commission, 514 U. S. 334 (1995)?

Equally, the same goes for myself. It's true that originalism leads me to join the dissents of Justices Black, Stewart and Rehnquist in Griswold v. Connecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410 U.S. 113 (1973) respectively - and it's true that this places me at odds with the hallucinations of liberals that those cases were correctly decided. But it's also originalism that leads me to the conclusion that Congress' intervention in the Schaivo case was outright unconstitutional, that the nuclear option is an unconstitutional attempt to change the explicitly nonconstitutional rules of the Senate, that Hamdi v. Rumsfeld, 542 U. S. 507 (2004), was wrongly decided in the government's favor, and that the use of the recess appointment power may violate the original understanding of the recess appointment power. Anyone want to take a guess as to whether the expression of these convictions made me any more popular in GOP circles?

So I'm afraid that I just don't buy that Originalism is simply the cloack of the Vast Right Wing Conspiracy.


Finally, you suggest that the originalist critique of the liberal judicial agenda is that it seeks to foist "new rights onto society at large". This may or may not be the conservative critique of the liberal judicial agenda, but is assuredly is not the originalist critique. Its underlying presumption, and the reason it cannot withstand scrutiny, is that it makes the standard presumption that when we invest in the living constitution, we have nothing to lose. We can only gain more rights. But I submit that this is a demonstrably false proposition. The living constitution can take rights away, as assuredly as it can grant them. Cf. Roe v.Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not)." Cf. Griswold v. Connecticut, 381 U.S. 479 (1965) (right to privacy exists) and Lawrence v. Texas, 539 US 558 (2003) (right to privacy extends to the bedroom of one's home, and one's activities therein) with Kelo v. City of New London, 04-108 (right to not have one's home taken by private developers, U.S. Const., Amdt. 5, is conditional on the discretion of the government). See also Scalia, supra, at pp.41-44.

For whatever reasons you might buy into the living constitution, don't buy into it on the pretense that it is here to bring us ever more and better rights.


You also offer:The truth is because the Constitution is silent on many issues, most especially those that by way of modernization could not have been envisioned by even the sagest of historical legislatures, a decision that a right is not recognized by the Constitution’s original intent is no more neutral than a decision that it is.I want to tackle two issues here: the application of the Constitution to modern problems, and the concept of constitutional rights vs. other rights retained by the people.


The genius of the constitution is that, even if we give its words the meaning they had when it was adopted - as any democratic theory of constitutional government demands that we must - those words speak vividly and clearly to modern needs. Despite your assertion (surely indisputable) that those who wrote the constitution could not have envisioned, for example, the rise of the internet, they were far-sighted enough to write a document which - with very few exceptions - is sufficiently broad to accomodate modern exigencies.

I will provide a few choice examples from the Bill of Rights.

The first amendment says, "Congress shall make no law...abridging the freedom of speech, or of the press". "Speech" in that sense was never and has never been understood to mean simply face-to-face one-to-one speech; nor has "the press" - meaning the printing press, not the news media as the term is used today - ever been taken to mean that government has a free hand to proscribe handwritten pamphlets rather than those produced by mechanical typesetting. The terms of the first amendment are sufficiently broad as to include one-to-one speech, one-to-many-speech, one-to-one writing and one-to-many writing. The expression of ideas, the political discourse of the nation, was what the free speech clause was intended to safeguard, not the specifics of how it was conducted. Thus, the application of the first amendment to the internet is obvious: what is a blog? It is one-to-many writing. What is e-mail? It is one-to-one (or, less often, one to several) writing. There is no substantial difference, where the first amendment is concerned, between these activities and writing a letter or publishing a newspaper. Those activities were protected then, and they are protected now, no matter how one goes about them.

The second amendment says, "the right of the people to keep and bear Arms, shall not be infringed". It does not say what constitutes arms, and it would have been understood at the time to basically mean "weapons". What constitutes a weapon grows and changes with technology. The right to keep and bear them does not. See, e.g., Glenn Reynolds & Don Kates, The Second Amendment and States Rights, 63 William & Mary Law Review 1737; Randy Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, ExpressO Preprint Series Working Paper 140; The Right to Keep and Bear Arms, Report of the U.S. Senate Subcommittee on the Constitution; J. Neil Schulman, The Unabridged Second Amendment.

The fourth amendment grants a right to security in one's person, house, papers and effectsl it also prohibits "unreasonable searches and seizures" of the foregoing, and requires probable cause before warrants are issued. All of those things are relevant today - but like the first amendment, its terms are sufficiently broad to move into the modern age. If a policeman in 1792 had looked in through the windows of a house without a warrant, that would constitute an unconstitutional search - but the reason it is unconstitutional is not tied to HOW the search was executed, but rather, by the fact that it WAS executed. You are protected by the Constitution from unreasonable searches - whether that search is carried out by a policeman looking in through the windows, or by x-ray, thermographic imaging or whatever modern technology makes available.

The seventh amendment is the Framer's major slip. By failing to anticipate inflation, the Framers inescapably granted the right to jury trial in any suit where the value exceeds what is now a triffling amount. Unlike many other parts of the bill of rights, this clause is so specific that its meaning cannot grow reasonably, and the court cannot simply add inflation onto the amount. The Constitution says $20.

And lastly, the eighth amendment says that "cruel and unusual punishments [cannot be] inflicted". This does not mean that the death penalty is unconstitutional (given its explicit contemplation in the fifth amendment if for no other reason). But, I do not say that the death penalty by any means is necessarily constitutional. I think that it would be perfectly possible to construct an argument that maintains that the electric chair, for example, is unconstitutional, because it would have been considered cruel and unusual then, and I think it would be considered prima facie cruel today. I'm not nailing my colors to that mast, simply pointing out that, just as the 1st, 2nd and 4th amendments protect against the substance, not the method, so might the 8th.


I recently offered some comments (in a discussion here with Paul Gowder) on how one might view rights vs. constitutional rights; while I would prefer an opportunity to revisit those remarks in amore coherent form, I have not yet done so and will not yet do so here, and will therefore limit my repetition of those comments here.

Under the model which I use to conceptualize rights, a right is something which the people retain in defiance of the authority of the government to invade or circumscribe its excercise. The people are sovereign, but in instituting governments, they necessarily concede government certain powers which may include the ability to infringe upon certain rights, being that almost any action one can take has some effect on someone else.

A federal constitutional right is a fundamental limitation on the powers delegated to the federal government (and, per the 14th amendment, the state governments). So when the due process clauses say that no American government can "deprive any person of life, liberty or property, without due process of law", they are not creating a right to life, liberty or property, they are not saying that a person cannot be deprived of those things, they are placing a limit on the powers of arbitrary government by requiring due process (i.e., a preexisting law, the absence of compulsion during arrest, a fair jury trial, and so on) for their removal.

In other words, in a system of limited government, where "all is retained which has not been surrendered" (U.S. v. Darby, 312 U.S. at 124), there is no effective difference between forbidding government to intrude on a right and declining to grant government the power to intrude on that right in the first place. See, e.g., Justice Hugo Black, One Man's Stand for Freedom (1963 ed.) at p. 33:“Some people regard the prohibitions of the Constitution, even its most unequivocal commands, as mere admonitions, which Congress need not always observe...This view comes close to the English doctrine of legislative omnipotence...I cannot accept this approach to the Bill of Rights. It is my belief that there are "absolutes" in our Bill of Rights, and that they were put there on purpose by men who knew what words meant, and meant their prohibitions to be absolutes. ...[T]he very use of a written Constitution, indigenous to America, the language the Framers used, the kind of three-department government they took pains to set up, all point to the creation of a government which was denied all power to do some things under any and all circumstances, and all power to do other things except precisely in the manner prescribed.” (Emphasis in original; cf. Federalist 84 and III J. Story Commentaries §1855)However, it is too brief to say that there is no difference whatsoever between a personal right and a limitation on government. I suspect that the reason that the bill of rights was added over Hamilton's objections in Federalist 84 is the necessary and proper clause; it is conceivable that, even in a system of limited government, government could find a way to invade liberties that are so fundamental that they were important enough to include in the Bill of Rights.

Therefore, if a constitutional right is essentially a limitation on government, what - one could argue - is the purpose of placing something in the constitution other than to explicitly exclude its consideration on the democratic stage?

* * *

For the foregoing reasons, I respectfully dissent. I do not say that originalism is perfect (see Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849), just that it is better than any of the alternatives. "If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough...What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? ...There really is nothing else.([email protected])

Posted by: Simon | Aug 3, 2005 3:16:24 PM

It seems that yu are looking for the amendment process. It was included to allow for updates to the Consitution. Yes, it is difficult, but adding new right should be difficult - and supported by the people throught the representative process.

Posted by: TomH | Aug 1, 2005 1:33:49 PM

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