Tuesday, March 18, 2014

The Day the Constitution Lived (Guest Post by Eric Segall)

by Eric Segall

Last week in Atlanta, the Georgia bar celebrated the 225th anniversary of the United States Constitution by holding a hall of fame legal conference.  The participants included Supreme Court Justice Antonin Scalia as well as appellate heavyweights Richard Posner and Alex Kozinski, and a bevy of our most prominent constitutional law professors, commentators, and Supreme Court reporters. Although there were many themes to the conference, the most consistent thread was the tension between those who believe in a “living” constitution and those who believe in a Constitution defined by its “original meaning.”

The proceedings began with ultra-liberal Erwin Chemerinsky and arch conservative Richard Epstein debating whether the Constitution is dead or alive. Chemerinsky observed that if the Constitution only has the meaning it did when ratified, then racial segregation in public schools would be constitutional, women would not have equal rights, and Congress would be disabled from passing minimum wage laws and overtime regulations.  Epstein emphatically denied that a dead Constitution would lead to racial segregation or the denial of equal rights for women, but he was positively giddy about the idea that Congress would be deprived of most of its power to regulate the national economy (and didn’t deny such would be the effect of a “dead” Constitution).

Chemerinsky insisted that everyone, including Justices Scalia and Thomas, as well as Epstein himself, believes in a living Constitution when it suits them to do so.  Though Epstein denied the charge, he gave the game away when he said that all regulations that reduce the value of a person’s property constitute a takings under the 5th Amendment and require just compensation from the government.  I don’t know if such a radically private property protective world would be better or worse for our economy, but it is much more in line with an imaginative future than any recognizable past.

The second day of the conference brought together Supreme Court reporters and bloggers.  Amy Howe justifiably lamented that SCOTUS Blog doesn’t have a media pass to the Supreme Court (an absurd oversight by the Justices given the Blog’s important role in covering the Court).  Adam Liptak of the New York Times had one of the best one-liners of the three days when he responded (politely) to a question from Georgia Supreme Court Justice David Nahmias who was concerned about how judges are covered in the media.  Liptak said in a dead pan voice, “if we get a leak that is news worthy and if that makes your life more difficult that is of absolutely no concern to me."

Both Liptak and Howe agreed that television cameras should be allowed in the Supreme Court, but warned everyone present not to hold their breath.

The afternoon of the second day brought a panel on the Second Amendment (which I organized) and another heated conversation about how judges should go about interpreting a document ratified when it took a full nine seconds to load a gun to fire a single bullet. Nelson Lund suggested a robust reading of the Second Amendment strongly protecting gun rights. Sandy Levinson and Adam Winkler argued that the private right to own guns should be protected, but they would allow the right to be over-ridden by most reasonable legislation, and I argued that Judges Posner and Wilkinson have persuasively made the case that the Second Amendment should only apply to the militia, meaning not at all. We all found common ground, however, and unanimously agreed that the Court’s reasoning in its landmark gun case, DC v. Heller was unpersuasive, inept, and completely oblivious to the most relevant and important history of the Second Amendment.

On Friday the really big guns came out. First Judges Posner and Kozinski, along with Justice Nahmias, talked about what it is like to be lower court judges who have to wrestle with Supreme Court precedent. Whether the Constitution is dead, alive, or something in between, they all agreed that they have a duty to apply it as the highest Court tells them to, but they also agreed that in real life rarely did the Court issue a decision that was clear enough for them to actually follow.

Judge Posner made his usual case that judges often have discretion when deciding cases and that facts and consequences should matter much more than legal rules and prior cases.  He also quipped that “there is nothing as ridiculous as the canons of construction, other than the Blue Book,” referring to the writing manual law students see in their nightmares.

Judge Kozinski told a long and eloquent story about the trials and tribulations of trying to decide between deciding a case the way the Supreme Court did a long time ago, or trying to predict whether the Justices will veer from that old law in the next case.  He persuasively suggested that trying to figure that out is a fool’s errand (a lesson most of us should take to heart).

Justice Scalia was the last person to take the stage.  For about forty minutes, he ranted and raved about how liberals “don’t really want a living Constitution, they want a dead one where rights apply everywhere,” and how “abortion, same-sex sodomy, and (maybe) assisted suicide” were not protected then and therefore “shouldn’t be protected now.” His diatribe about the evils of a changing Constitution may have been more persuasive had he explained exactly when in our history corporations became people whose first amendment speech rights made them immune from campaign finance reform.

Justice Scalia delivered a number of interesting and entertaining one liners:

"Everyone was an originalist before the Warren Court.  Judges distorted the Constitution the old fashioned way-they lied about it."

"I don't have to be a historian; I just have to be a judge who can tell the good from the bad.”

"Congressional committee reports are signed by no one and probably written by a teenager."

"That question is a softball ... it reminds me of my confirmation hearing where Strom Thurmond asked me what I thought of judicial activism."

That last line came while Scalia was answering written, prescreened anonymous questions. The very next unsigned question was one that I had written. I asked him how he could sign on to Justice Roberts’ opinion in the recent voting rights case (Shelby County v. Holder) which announced a brand new constitutional principle-that Congress could not treat different states differently without a really strong reason-given that this limitation is nowhere in the text of the Constitution nor supported by its original meaning.  Scalia fumbled a bit, said he didn’t read the case that way, and then asked who wrote the question.  I was sitting in the front row and made eye contact with the moderator to see if he wanted me to identify myself. He motioned for me to rise so a microphone was brought over and I nervously repeated the question. I don’t often argue with Supreme Court Justices in front of a full house. Scalia again fumbled, and then said I read the case wrong and the decision only required a rational basis (not a strong reason) for Congress to treat different states differently. I will let history be my judge on this dispute (I’m right) but I was most interested to hear Scalia go on to say that, even if Congress had a rational basis for treating different states differently at the time of the Civil War, that rational basis no longer exists in today’s United States, so the Shelby County Court was correct to rule the way it did. In other words, what “equal state sovereignty” meant in 1868 is very different than what it means today, as a matter of constitutional law.

I agree with Scalia’s approach, and would use the same method of interpretation for principles like “equal protection of the law,” and “cruel and unusual punishment,” and the living Constitution lives on for at least another day.


Joe said...

C-SPAN aired an interview with Kagan last night (a recent one) and she talked about one of the senators from Idaho talking to her & saying he didn't trust she could understand the importance of the gun culture in his state. Not have enough empathy?

Anyway, she noted that she promised to ask Scalia to go hunting with him. Which she did. Hope this doesn't put on in a too negative light for some members of the blog.

It would be nice if the right to own a gun would be defended w/o trying to force it into the 2A hole, which is not there for hunting or even self-defense. A Kagan or Kennedy decision, e.g., on the "liberty" involved.

Thanks for the summary. Scalia has this shtick, but his actual voting patterns is what we should ultimately rely on.

Sam Rickless said...

Hi Eric,

I was struck by the following part of your post:

"I was most interested to hear Scalia go on to say that, even if Congress had a rational basis for treating different states differently at the time of the Civil War, that rational basis no longer exists in today’s United States, so the Shelby County Court was correct to rule the way it did. In other words, what “equal state sovereignty” meant in 1868 is very different than what it means today, as a matter of constitutional law."

Maybe it's just me, but as someone trained in the philosophy of language I am having trouble with this.

Suppose that Justice Scalia is right, namely, that "equal state sovereignty" requires, as part of its meaning, that there must be a rational basis for Congress to treat different states differently. Suppose Justice Scalia is also right that, as a matter of fact, there was a rational basis for Congress to treat different states differently in 1868, but that there is no rational basis for Congress to treat different states differently in 2014. (This could simply be the result of a change in circumstances.) How does it follow from this that Justice Scalia is committed to the proposition that "equal state sovereignty" *meant* something different in 1868 than it means in 2014? As I see it, Justice Scalia claims that the meaning has not changed, but that the application of that meaning to the different circumstances entails that a law that would have been constitutional in 1868 is not constitutional now. It is relatively easy to make sense of this.

Consider the following analogy. Suppose that a provision of the 14th amendment said that "the tallest Senator shall be given the last word on every bill that comes up for discussion in the Senate". Suppose that in 1868 the tallest Senator is X and that in 1870 the tallest Senator is Y. (This could simply be the result of a change in circumstances. X loses an election to Y, who is taller than X.) Do we now say that because, in some sense of "means", "the tallest Senator" means X in 1868 but means Y in 1870, that the phrase "the tallest Senator" has changed its meaning from 1868 to 1870? Well, it depends.

The problem is that "meaning" is ambiguous. It can mean the "sense" of a phrase or it can mean the "referent" of a phrase. The sense of a phrase is what is understood when the phrase is understood. It is what stays the same in translation. The referent of a phrase is what the phrase picks out in the world, as a function of its sense and the circumstances. We can say that the meaning of "the tallest Senator" stays the same from 1868 to 1870 because its *sense* stays the same. We can also say that the meaning of "the tallest Senator" changes from 1868 to 1870 because its *referent* changes (from X to Y).

Why can't we say the same about the meaning of "equal state sovereignty"? Its meaning (i.e., its sense) has not changed, but its meaning (i.e., its referent) has changed. Surely if Justice Scalia thinks that, for the purposes of adjudicating the merits of semantic originalism, the relevant sense of "meaning" is "sense" (not "referent"), then he can eat his cake and have it, too.

Michael C. Dorf said...

Sam: I raised more or less the same point with Eric before posting. He replied that, for reasons he elaborated in a Constitutional Commentary article some years ago, if the application of general language changes over time while meaning remains fixed, then originalism reduces to non-originalism. I'm not saying I necessarily agree with him, but the existence of semantic originalists who claim to reconcile originalism with living constitutionalism, e.g., Balkin, tends to support his view. But I'll let Eric weigh in if he so wishes.

Unknown said...

I wish Mr. Chemerinsky would not claim "Everyone believes in a living constitution" when He has not met Me and probably does not even know Who I am. I also wish He would be more accurate in His judicial analysis: segregation of schools was maintained simply because Plessy v Ferguson was not decided on originalist, dead constitution grounds; the dissent in this case highlights this fact quite plainly. Mr. Charmer insult also fails to recognize what it means to amend the constitution and the fact doing so helped secure Women the right to vote. And so on and so on. While I do not agree with Mr. Epstein's "takings" analysis, Mr. Chemerinsky seems to be making up a perception of reality to fit into nice-sounding, though inaccurate, sound bites and I find Myself disappointed in either His inability or unwillingness to be accurate.

Unknown said...

Sorry, I did NOT mean "Charmer insult". That was an autocorrect error. *blush*

Michael C. Dorf said...

In response to Sam's query, Eric emailed me the following:

If words like ,"equal," and "establishment," and "privileges," can have different meanings to judges over time if facts and understandings and values change, then the original meaning had little real force. And we all know vague terms as applied to different facts do end up evolving and changing, as opposed to words like "35," or "tallest," which usually don't. If originalism only helps with clear words, then we don't need it.
My book argues for original meaning plus super deference, only if you combine the two does original meaning make any real difference to vague phrases, which are the ones usually litigated. Although Bork and Meese talked the talk of deference, many contemporary originalists don't. Originalism plus vague terms plus little deference is indistinguishable from the living constitution."

Joe said...

maintained simply because Plessy v Ferguson was not decided on originalist, dead constitution ground

How so? Do you mean that the dissent had the right interpretation of original (intent, understanding or whatever)? Segregation appears to have been accepted there.

It is true the dissent argued a correct application of original principles would lead to the case to be decided the other way. True or not, being wrong "simply" isn't not using the right type of interpretation.

Dred Scott v. Sandford, e.g., tried to be "originalist," e.g., but most agree did so wrongly. But, not for lack of trying, apparently.

What "amendment" means is also worthy of thought. For instance, many thought the Bill of Rights or at least some of them were somewhat redundant. Congress had, e.g., no power to establish churches anyway. But, the amendments (as was noted at the time) in part were there to underline a certain interpretation was correct.

The 14a is comparable -- some thought certain civil rights laws were ultra vires, so to speak, while others thought the 13A etc. allowed them. The 14A in part was ratified to firmly establish they were acceptable. Also, to establish for all time that a certain interpretation was correct.

The ERA is another example. It is far from clear that it is necessary. The 14A speaks of "equal protection." But, the ERA (like the 16A in answer to a 5-4 ruling that limited income taxes to some degree) would have underlined gender equality should be given strict scrutiny & not require years of time for the doctrine to develop further.

Unknown said...

Hi, Joe.

I should clarify, when I said "originalist", I meant "in accordance with original meaning". In Plessy, the dissent had what I believe to be the stronger case in favor of original meaning. The fact the majority chose to rule otherwise I believe highlights the Human capacity to miss using logic correctly.

Likewise, Dredd Scott, while obviously ethically wrong, was, as far as I can tell, constitutionally correct at the time. We only have the horrific outcome due to the systemic flaw in the constitution at the time which denied personhood to such Individuals.

I think one purpose of the amendments, at least the Bill of Rights, whether stated explicitly or otherwise, was to at least say, "We want to make sure, whatever it is to which We agree the government can do, there exist certain action which it cannot do." At the same time, I agree the purpose of 13A and 14A was to establish a certain form of interpretation; I just happen to think the Supreme Court failed in that regard when it came to Plessy.

As far as the ERA is concerned, I think RFRA provides a way forward to at least provide much, if not all, of the amendment's protection for at least the federal government. While I readily admit this is speculation, the congress could pass a law stating the federal government shall not deny equality of any right based on sex except in furtherance of a compelling government interest as applied to the Persons treated differently and if the denial is the least difference which advances that interest; meanwhile, as often happens, the congress could also withhold transportation funding from any state which does not adopt a similar provision. ;-) But I have now gone way off topic of this post.

Joe said...

I feel like Paul talking to the "unknown" god. :)

It underlines the opaque nature of the term "original meaning" when the "human capacity" to "misuse logic correctly" is underlined by a ruling that reflected the general understanding of the amendments in question when they were ratified, including by members of Congress who allowed segregation in D.C. itself.

As to Dred Scott, it is quite debatable if it was "constitutionally correct" to hold that the Missouri Compromise was unconstitutional or that slavery isn't merely protected various ways, but blacks coul not become federal citizens. Lincoln at Cooper Union went to great lengths to address the first question. As noted by one of the dissents, multiple states allowed blacks to vote for the Constitution itself, and they were at least there surely part of "the people" of the Constitution.

The Federalist argued it was pretty "explicit" that the Bill of Rights was not necessary. Madison at least changed his mind on the matter, in part seeing what way the wind was blowing. The point there is that it is unclear what "amendment" did as such. If there was no amendment, the end result, in time, could have been a similar interpretation of things. So, what specifically did EC get wrong about the amendment process? In practice, in many cases, including regarding segregation, interpretation of what is allowed changing, not amendment, was the most important thing.

The ERA would have restrained the states too and not just in funding matters -- RFRA no longer (see Boerne ruling) applies to states; a narrower law is in place there. The spending power etc. does provide a major carrot/stick, but only so much. Equal protection clauses are more comprehensive. The point remains that it is unclear what the non-passage of the ERA means. Was it not necessary? What would it have meant? It's a complex question that is open to debate. I'll end there. Thanks.

Unknown said...

I shall end the discussion here as well to avoid going even further removed from the original topic on the Professor's site (Thanks, btw, Professor!) except to say this: it has been a long time since Anyone compared Me to a Diety. Thanks! ;-)

Sam Rickless said...

Hi Michael and Eric: Thanks for the replies.

I understand the concern about vagueness, but I think there are reasons for thinking that it may be overblown.

Vagueness is ubiquitous, but there is more or less of it depending on the phrase at issue. The phrase "at least 35 years old" is vague, in the sense that its sense does not fix its referent in every circumstance. For example, it's unclear what to say about someone who was born on a leap day.

One thing that originalists might say is that the original meaning of "equal"/"establishment"/"privileges" (etc.) fixes more of the word's extension (referent) than living constitutionalists tend to suppose. There are, after all, clear cases of establishment and clear cases of non-establishment. The word "privilege" is a technical term, and the meaning of technical terms is often more precise than the meaning of the same terms when used colloquially. As Balkin argues in his book, it matters greatly whether the original meaning of "commerce" is broad enough to encompass a large number of different forms of exchange (other than merely economic).

So there is vagueness, and then there is indeterminacy. Semantic originalists tend to see vagueness as being responsible for less in the way of indeterminacy; living constitutionalists tend to see vagueness as being responsible for much more in the way of indeterminacy. So there is a real difference here, and I don't think it helps to say that "originalism plus vague terms plus little deference is indistinguishable from the living constitution".

Beyond this, I just fail to see how any of this applies to what Scalia was saying about Shelby v. Holder. Yes, the word "rational" is, of course, vague. But it hardly follows from this that it wasn't squarely rational to treat different States differently in 1868, even as it is squarely irrational to treat different States differently now. The word "rational" is not just an empty vessel into which you can pour whatever meaning (and consequent application) you like. "Bald" is the archetypal vague word. But there are clear cases of baldness and also clear cases of non-baldness. The same person can be clearly bald at one time and clearly not bald at another. Why not the same in the case of "rational"?

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Cicy said...

Madison at least changed his mind on the matter, in part seeing what way the wind was blowing. The point there is that it is unclear what "amendment" did as such. If there was no amendment, the end result, in time, could have been a similar interpretation of things. So, what specifically did EC get wrong about the amendment process? In practice, in many cases, including regarding segregation, interpretation of what is allowed changing, not amendment, was the most important thing.

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