Scott Lemieux takes on conservative justices who espouse originalism when it backs conservative policy conclusions and ignore it when it doesn't.
« Friday Asian Carp Blogging | Main | Time for a Utopian Moment »
Fair Weather Originalists
29 Jun 2007 02:48 pm
Comments (13)
As the moron above said, and like most things involving the GOP, this has been clear for some time.
But, hey, at least GOP judges have a philosophy. The GOP accuses Democrats of appointing judges who like to use the Constitution for toilet paper and the Democrats (including said judicial appointees) seldom protest or articulate an alternative philosophy.
Just once, I'd like someone on the Judiciary Committee to take a swing at Lindsey Graham when he starts mouthing off.
Far be it from me to defend Justice Scalia from the charges of not consistently applying his stated philosophy.
However 'Brown v Board of Education' seems like an odd case to use in demonstrating that Scalia is inconsistent. There can be several different types of originalism, but granted Scalia does not always specify what he means by originalism.
There can be the originalism which states that that the common person's understanding of a the constitution should be authoritative, there can be originalism which states that the framer's understandings should be authoritative, and then there is Scalia's brand, which can also be called "textualism."
The originalist brand of textualism essentially says that the words mean what they mean. We can't toss them aside because the founders didn't anticipate our problems, we have to live with the text, or amend it.
In the case of the Civil War amendments, it's true that the Congress turned right around after passing them and segregated the DC public schools. So it can be argued that the Congress never intended to integrate public schools with the Civil War amendments.
"That's too bad" says textualism. If the Congress didn't want their words to be applied, they shouldn't have passed them. Their private intentions don't hold a candle to the what the printed words mean.
Granted, people might have had an understanding of those words back then that differs from what people think they mean now. But that's OK too, because the English language hasn't evolved so much since the Civil War that the words in the Civil War amendments had a different objective meaning that they do now.
Meaning that the words have an objective meaning specific enough to justify Brown, and the fact that the Congress demonstrated that they didn't intend school integration to be the result of the amendments does not have to be the most compelling factor to an originalist who places his/her fidelity primarily in the text.
Congress's actions in segregating the DC schools may be historically relevant, but it doesn't have to be constitutionally relevant to a textualist, since the Supreme Court is charged with interpreting the actual constitution, not drawing historical conclusions based on extra-constitutional facts.
I realize that other kinds of originalism may have problems with Brown, but Scalia consistently refers to himself as a textualist, which can be seen as a type of orginalism.
As for Brown, a textualist jurist would probably say that the decision prohibits segregation in law (de jure segregation) but not in fact (de facto segregation). In other words, legalized segreation can be seen as clearly unconstitutional, but the fact that parents end up living in different areas based on race is fine. And therefore the fact that local schools end up being overwhelmingly black or white may be a policy concern, (mostly because of the resources of schools depend many times on their location), but it is not segregation in law.
A textualist would read Brown as striking down laws which prevent segregating students by race, but not as directing schools to intentionally balance their racial numbers.
This interpretation justifies Brown, but not necessarily busing schemes. Seems reasonable to me.
Four points:
1)You dodge the most important question: how exactly does the "text" of the 5th Amendment proscribe affirmative action? And if orignalism is given any weight at all, how on earth could it?
2)As you will note, I didn't say that originalism cannot defend Brown, only that it can only do so by defining principles at a sufficiently high level of abstraction that William Brennan can also be an origialist with equal plausibility. The text of the equal protection clause in fact fails to resolve any interesting case. And, certainly, the text in no way compels one to oppose affirmative action.
2)As I recently pointed out, that Scalia also claims to be a "textualist" gives him even more discretion. When origanalism doesn't produce the right result, he's a "textualist." When neither produces the right result, he's a "tradionalist." Given enough grand theories to work with anyone can be 100% principled (particularly since "textualism" on its own basically fails to resolve any interesting question involving broadly worded constitutional principles.)
4)Where you do see the in the text of the 14th Amendment that it applies only to race and not to gender or sexual orientation? My copy of the Constitution must be defective.
Moreover, busing was frequently a remedy for de jure segregation, so the distinction you're making above makes absolutely no sense.
Wow,
Thanks for the response.
Perhaps I could have been more clear.
I was limiting myself to this set of sentences:
"For good reason, nobody who believes that the great desegregation case Brown v. Board of Education was incorrectly decided could be confirmed to the Supreme Court. But the originalist case for the decision is very weak, and illustrates why originalism doesn't necessarily do much to constrain judges in other cases.
The problem with Brown and originalism is that there is very little evidence that the 14th Amendment was understood at the time of its ratification as prohibiting school segregation. It is not strictly accurate to say that originalism cannot accommodate the result in Brown, but it can be done only by draining the theory of any real content."
I think I provided a version of originalism that is sometimes proposed which justifies Brown without draining the theory of content. I understand that you acknowledged that orginalism can possibly accommodate Brown, but I don't agree that the version of textualism I proposed (which is not novel or anything) is drained of content, or must be applied only at a particularly high level of abstraction in order to accommodate Brown, and it still seems to be a distinctive theory. It may not be my own, but it seems distinctive and substantive.
As I said, I wasn't trying to provide a defense for Scalia in general, because I think he is often guilty of what you accuse him of. I just think Brown is often thought to be a disingenuous way for conservative justices to appear mainstream, but they have to abandon their stated principles to do it. I don't see it that way, at least not necessarily.
I also think that a critique of Scalia on the one hand and a critique of textualism, or originalism in general on the other, is two different things.
As far as your points about gender or sexual orientation, or affirmative action, I may be wrong, but I don't think my original comments had to do with that.
I realize your article was about more than what I commented on, so you may not like that I didn't address the other issues. Either way, my critique was more intermediate, and had to do with an originalist interpretation of Brown.
Textualism can rightly be called originalist because it places priority on the original text rather than using contemporary considerations to override a piece of the text because it's outdated or fails to take into account our considerations.
I realize the type of originalism often invoked is dead in the water when it comes to Brown, which I hinted at in my first post.
The fact that Scalia plays a shell game bothers me too, but I think forms of conservative jurisprudence are too quickly dismissed, and I think that if applied consistently, it wouldn't lead to nearly as many conservative conclusions many people imagine.
You're right about busing. I'm not an academic so I may not use the precise terms here, but what I had in mind was busing schemes which seek to balance race among students, not busing schemes which seek to allow students to go to school with students of other races.
When the "Little Rock Nine" went to Central High School in 1957, they went to a school they would have been going to in the first place had they not been denied the right to attend. That is de jure segregation, as you know.
The busing I had in mind was what could be called "desegregation" while the events in Little Rock in 1957 could be called, "integration."
As I said I'm not sure if these are the right terms. But surely there is a distinction between the two.
On the one hand, segregation laws are being declared unconstitutional, allowing people to attend schools they were being shut out of on account of race.
On the other hand, schools are trying to racially balance schools by busing people across town.
The former has to do with de jure segreation, the latter has to do with de facto segregation.
"Busing" in order to integrate schools is what the court explicitly ordered in Brown. "Busing" in order to achieve some desired racial balance, (desegregation) was not necessarily prescribed, say the conservative justices. This makes sense to me.
It doesn't matter if Brown required busing or not. The programs in Seattle and Louisville were completely voluntary. They weren't adopted because a court told them to do it.
Steve,
Ok, I'm not familiar with the programs in Seattle or Louisville.
What I feel confident in saying is that traditionally, busing schemes for the purpose of balancing racial numbers, while voluntary on the local level, (that is to say, not prescribed by a federal court), were certainly not voluntary at the individual level.
In other words, people didn't want their kids to be bused across town so that the school district could achieve racial numbers, and they didn't want their kids to go to a school of lower quality than they would have otherwise.
So they moved to the suburbs and exurbs, or sent their kids to private schools.
As for the court's role in particular busing cases at the local level, it's not obvious to me that school districts should be allowed to use race to determine who goes where. I'm not completely closed on the issue, meaning I may be persuaded that a program would be benign enough. On the other hand, when kids are denied the school of their choice because they'll mess up the racial numbers, while another student is granted their school of choice because they fit the school's racial goals, that seems very shaky to me.
I think I provided a version of originalism that is sometimes proposed which justifies Brown without draining the theory of content. I understand that you acknowledged that orginalism can possibly accommodate Brown, but I don't agree that the version of textualism I proposed (which is not novel or anything) is drained of content, or must be applied only at a particularly high level of abstraction in order to accommodate Brown, and it still seems to be a distinctive theory. It may not be my own, but it seems distinctive and substantive.
This is where we simply disagree. Once you've used "originalism" to justify Brown -- that is, release it from concrete historical meanings -- is ceases to have any content. (And "textualism" is even more vacuous in this context; you can start at the words "equal protection of the laws" all you want and it's not going to provide an answer to any interesting question that will persuade anybody who doesn't already agree with you.) In particular, once you've climbed the latter of abstraction to see in the 14th Amendment a simple principle of "no race discrimination" there's no principled, apolitical reason to conflate "racial classifications intended to uphold apartheid" and "racial classifications intended to dismantle apratheid." And then there's no principled, apolitical reason for then (like Scalia) excluding gender discrimination from the open-ended language. The interpretative theory had basically ceased to do any work; I don't see how Warren's Brown opinion is any less "textualist" than what you've outlined.
First, I agree that if originalism is only defined as fidelity to concrete historical meanings of words in the constitution, then you can't justify Brown.
As far as what orginalism has historically meant, Scalia writes in his book "A Matter of Interpretation" that the meanings of the words are more authoritative than what the framers thought they should mean. In other words, if they had some meaning they didn't include, or if they had a subjective meaning that seemed to contradict the words they passed, then that's just not binding.
As for finding principled, apolitical reasons to dismantle apartheid, I thought the Central High example was principled and apolitical enough. The fact of the matter in the South is that black people and white people often live in the same areas, (many times, but not always), so they're already in ready made districts. You can draw district lines even within towns that will naturally include lots of black and white people in many cases. So people of different races will end up going to the same schools. This is the end of segregation in law.
When school-districts go about trying to balance racial numbers after no one can be excluded from a school on account of race, de jure segregation has already been dismantled.
If policy makers want to tear down public housing and disperse people throughout the city, fine. If they want to try to build up poorer areas, fix the pot-holes, make it safer, spend the same amount of money on schools no matter where they are, great.
But the fact that people of different races often live in different areas is not necessarily a problem by itself, and busing the children of these parents to a school that no one would think was their natural school (if it weren't for the policy of balancing racial numbers) is going beyond dismantling segregation in law.
As for textualism, right off the top of my head, the dormant commerce clause would seem to be in jeopardy if Scalia got his textualist hands on it, and Kelo v. New London would have turned out differently if a textualist approach were more represented on the court. If textualism, (even the one which places more importance on actual text than intended meaning) were really drained of al content then it would seem that Ginsberg, Breyer, etc would have ruled differently in Kelo.
I realize that I neglected to answer what was probably the most important sentence in your last post:
"And "textualism" is even more vacuous in this context; you can start at the words "equal protection of the laws" all you want and it's not going to provide an answer to any interesting question that will persuade anybody who doesn't already agree with you."
To me the words,
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" would mean, to any honest observer, that separate but equal, is bunk. You can't forcefully segregate children and expect them to have equal liberty.
As for whether this reasoning would differ substantially from Warren's, well, it might not.
If all you were saying is that textualism doesn't have a way of deciding Brown correctly that is unique, well, then, um, OK...
I thought you meant that textualism is drained of all content in general. If that's not what you meant, then never mind.
If that is what you meant, then I tried to say a little about why I think textualism isn't drained of all general content in my last post.
One caveat:
While I think that textualism would say that laws which obviously and blatantly deny equal liberty (like segregation) should be struck down, a textualist would probably say that the mere existence of inequality or unequal opportunity is not automatically unconstitutional.
They would probably go on to say that some remedies designed to alleviate these inequalities go against the principles laid down in the very words which outlaw segregation in law.
Comments closed July 13, 2007.
| 
Heads in the Sand
I'd say this pattern has been pretty clear for awhile -- say, from December 11, 2000 going forward.
Posted by moron | June 29, 2007 4:22 PM