Monday, October 24, 2016

Do Voters Care About Constitutional Interpretation?

by Michael Dorf

On Tuesday night last week, I gave a lecture at Johns Hopkins University with the title Does the Dead Constitution Have a Future? Reflections on the Legacy of Justice Antonin Scalia. After exploring some deficiencies of various versions of originalism, I advanced the thesis that despite its flaws, originalism remains an appealing form of justificatory rhetoric because it sells itself as a brand of formalism and the general public are substantially more formalist than warranted by what over a century of legal realism teaches about how courts in fact decide cases. I also explained that originalism has been a formalism of the right, but that formalisms of the left (including liberal originalism) are also available. I offered evidence of the grip of formalism on the public from a variety of sources, including Supreme Court confirmation hearings.

Rarely does one have the opportunity to test an academic thesis immediately after propounding it, but I was given that opportunity the very next night, when the first question of the third presidential debate asked the candidates where they wish to see the Court take the country and to expound on their respective views about how justices ought to go about construing the Constitution. In a Postscript (below), I quarrel with the way in which moderator Chris Wallace framed the second part of his question, but for now it suffices to summarize that part as follows: Do you favor originalism or living constitutionalism?

Not only did neither candidate give a formalist or originalist response; neither candidate even tried to answer that question on its own terms. Instead, each talked exclusively about substantive outcomes that would be favored by the justices he or she would nominate to the Court. For Clinton, that meant preserving constitutional rights to same-sex marriage and abortion, while overturning Citizens United; for Trump, it meant preserving DC v. Heller, while overturning Roe v. Wade. There ensued a policy discussion about guns and abortion.

Taken together, the candidates' non-responses to the constitutional interpretation question seemed like a stunning refutation of the thesis I had propounded just 24 hours earlier. Because the broad topic areas had been announced in advance, each side was ready for one or more questions on the Supreme Court. And thus each campaign could have and undoubtedly did anticipate the possibility of a question about the "judicial philosophy" of his or her prospective nominees. Yet they chose to ignore the issue entirely. Assuming that the campaigns have a reasonable sense of what plays well with the electorate, the answers to the Supreme Court question strongly suggest that I was wrong. The voters don't care at all about interpretive methodology, formalist or otherwise.

Yet willing as I am to confess error when I am persuaded that I have erred, I'm not entirely convinced that the candidates' immediate flight from interpretive methodology to hot-button policy issues provides us with that much insight into the public's views about constitutional interpretation more broadly.

To state the obvious, the fact that Trump didn't discuss issues of constitutional interpretation tells us very little about the electorate. Given how little he prepared for the debate and his background ignorance on matters of constitutional law (e.g., not knowing how many Articles the Constitution has, not understanding that federal judges don't vote on bills), Trump might have simply whiffed. Perhaps his debate prep team (such as it was) advised him to say something about the framers or original meaning, but it didn't stick.

Of course, it's harder to attribute Clinton's answer to poor preparation (because she prepared prodigiously) or ignorance (as she is a well-educated lawyer). Surely Clinton could have said something about constitutional interpretation before pivoting into her substantive pitch. I might have scripted an answer like this:
To keep faith with the Constitution, each generation must give effect to freedom and equality in accordance with our fundamental values. I will appoint Justices who defend our rights against old threats like Donald's irresponsible calls for religious discrimination and against new threats, like the vast influx of unaccountable money that decisions like Citizens United allow. I will not appoint Justices who think the government can control women's bodies or tell people whom they can love. Etc.
It only would have taken one or two sentences at the beginning of her answer for Clinton to be responsive to the interpretive methodology question and still get in her substantive points. The fact that she didn't do so suggests that she and her team didn't see any advantage in pressing the jurisprudential point.

But that could be consistent with my thesis if either or both of two explanations holds:

(1) Perhaps Trump could have scored some points by appealing to formalism. A more disciplined GOP candidate with knowledge of constitutional law (Ted Cruz, let's say), would have begun by saying something highly formalist: "The first duty of judges is to apply the law, not to ignore it in the way that so many Democrat-appointed judges do." And then he would have gotten in his substantive policy talking points. In this view, Trump's incompetence meant that he simply left money on the table by not going formalist/originalist, whereas Clinton's greater preparation and knowledge led her to avoid endorsing living Constitutionalism, which would have alienated more people than it attracted, due to the naively formalist views held by so many people.

(2) Each candidate was speaking to the base and any potentially undecided voters. To the extent that the base cares about judicial appointments, they're sophisticated enough to know where the candidates stand: the GOP candidate will appoint people who claim to be originalists or at least claim that original understanding is very important; the Democratic candidate will appoint Justices who advance progressive values in a living Constitution framework. Thus, the only real audience for the answers here were relatively unengaged voters. Trump was appealing to the low-information conservatives; Clinton was appealing to low-information liberals. Neither would have gotten anything out of discussing interpretive methodology, because low-information voters don't know anything about it.

Accordingly, I do not read the candidates' non-answers on interpretive methodology as signaling general public apathy about interpretive methodology. It's just that given the reachable audience in a presidential debate, such matters necessarily have low (okay, zero) priority.

Postscript: Overall, I thought that moderator Chris Wallace performed reasonably well. At least for the first half of the debate, he managed to elicit substantive answers from the candidates. If one could put aside the fact that Trump was mostly lying, it was almost a conventional debate.

However, throughout the debate, Wallace embedded right-wing assumptions in his questions. As Prof. Buchanan explained in his post-mortem post on Thursday, these included some doozies with regard to economic policy: E.g., we have an unsustainable level of national debt; Social Security is at risk of bankruptcy; and most absurd of all, the stimulus in the early Obama administration "led to" anemic growth (when in fact it helped prevent a depression even though it was too small to lead to stronger economic growth). As Prof. Buchanan explained, the problem was not that Wallace's questions were biased. Given the magical thinking underlying Trump's tax proposals, he was even more of a target of the deficit-scold-conventiona-wisdom Wallace was assuming than was Clinton. The problem was that Wallace did not even appear to be aware that things he takes for granted -- e.g., debt bad, Social Security bankrupt, stimulus was wasted -- are not just contestable but wrong.

Something similar happened with Wallace's question about constitutional interpretation. Here's the question he asked, with the boldface added by me for emphasis:
What’s your view on how the constitution should be interpreted? Do the founders' words mean what they say or is it a living document to be applied flexibly, according to changing circumstances?  
That is an amazingly question-begging formulation. It juxtaposes living constitutionalism against a view in which the "words mean what they say," thus tacitly but unmistakably asserting that living constitutionalists do not consider themselves bound by the words of the Constitution. But nobody who subscribes to living constitutionalism actually thinks that.

The interpretive debate is over how to figure out what the words of the Constitution mean. Concrete-expectations originalists say that the words mean what the framers and ratifiers would have intended them to mean. Semantic originalists say that the words mean what the public would have understood them to mean at the time they were adopted. Living constitutionalists say that the words mean what they appear to mean in light of the many social, economic, and political developments that have occurred in the generations since they were ratified. The choice isn't between adhering to the words of the Constitution and making stuff up, as Wallace's question assumed, but about how to ascertain the meaning of the words of the Constitution and what to do when that meaning is unclear. Roughly since Justice Chase's 1798 opinion in Calder v. Bull, it has been generally accepted that arguments for flexible interpretation must be run through the text of the Constitution, not by going around it.

I do not mean to say that Wallace was deliberately begging the question in order to make originalism look better than living constitutionalism. On the contrary, I think it is highly unlikely that Wallace--a journalist but not a lawyer--had any idea that he was gilding the originalist lily. But that is my point. Wallace is also not a macroeconomist, but that didn't stop him from gilding the right-wing lily on economic policy. Just as Wallace assumed deficit-scold nonsense to be truth because it is conventional wisdom among the pundit class (with rare exceptions such as Paul Krugman), so Wallace assumed that originalists are faithful to the words of the Constitution while living constitutionalists make stuff up in the service of contemporary values because that is the conventional wisdom among non-lawyers.

Put differently, the completely unintentional gross unfairness of Wallace's framing of the constitutional interpretation question is strong evidence for the thesis I advanced in my Johns Hopkins lecture the prior night: Formalism in general and originalism in particular have a much stronger appeal among the general non-specialist public (including elite but non-specialist elements of the public such as journalists) than they deserve.


David Goldin said...

I don't disagree that Wallace's question wound up being (unintentionally) unfair, but I think Prof. Dorf reads a bit too much into that. Wallace used 32 words, none of them drawing on a specialized vocabulary, to ask a question comprehensible to a broad TV audience. Prof. Dorf implicitly suggests Wallace should have asked, "What's your view on how the constitution should be interpreted? Do the founders' words mean what the framers and ratifiers would have intended them to mean, what the public would have understood them to mean at the time they were adopted, or what they appear to mean in light of the many social, economic, and political developments that have occurred in the generations since they were ratified?" You don't have to be a TV journalist to realize why that wouldn't have worked. I see evidence that it's easier for the "general non-specialist public" to grasp the distinction between "originalism" and "living constitutionalism" when it's presented as Wallace did, but not necessarily for the inference that that means that same public finds originalism more attractive.

Shag from Brookline said...

The celebrity of the late Justice Scalia has had an impact on the public's perceptions of originalism. Somewhere in my piles of downloaded articles on originalism and non-originalism is one that discusses the views of the public. Alas, I cannot readily find this article via Google. But Google led me to this:

with the title "Originalism Is Political, Not Judicial, Philosophy, Post Says." That's Robert Post of Yale Law School. Back in 1952 in my ConLaw class, there was no discussion of the concept of originalism, which developed as a force in the 1970s in reaction to the "activist" Warren Court, with the combination of Ed Meese and the Federalist Society into the 1980s. More than a tad of the movement had to do with the civil rights movement triggered by Brown v. Bd. of Educ. (1954) as I was finishing up law school.

Debates to a significant extent are aimed at low information voters. How much more could Clinton have said on the Wallace question? I recall that Trump did mention Scalia briefly. While Wallace did fairly well overall, his long exposure at Fox surely impacted his mindset on both originalism and debt questions, complex issues that cannot be readily addressed in 2 minute responses with limited follow up. (An elephant in the 3rd debate room was Wallace's failure to inquire of global warming, which had been ignored - and well pointed out in the media - in both the 1st and 2nd debates.) So perhaps a problem with the presidential debate process is that because of time limitations, moderators' questions are aimed at low information voters. Alas, lengthening the debates would lose much of the audience. Imagine going through the evolution of originalist from its original intent days to the present, keeping in mind that despite its impact on the public following Scalia's demise only Justice Thomas claims to be an originalist.

Michael C. Dorf said...

To be clear:

1) I wasn't criticizing Wallace but simply pointing to what he takes for granted as telling with regard to views held by the public and middle-brow punditocracy.

2) Specifically w/r/t David Goldin, Wallace needn't have asked a wordy question. The following would have worked fine: "What qualities and perspectives would you seek in your nominees to the Supreme Court and other federal courts?"

Joe said...

The debate question had two parts -- a general vision of where the Supreme Court should go & a more specific one on constitutional ideology. Seems to me that each candidate, in a fashion, answered the first part. Not so much the second part though Trump said something about justices interpreting "the Constitution" and not what experts say it means.

I think it's fair, though his wording begs the question some (but this probably occurs repeatedly in these debates & was tbh expected here). As you suggest, Clinton could have provided a few sentences to quickly summarize the basic standard living constitutionalism vision that RBG, Breyer etc. have promoted. One where history matters but where knowledge over time informs. She could have quoted one of Kennedy's opinions to do this.

Do think the public is concerned about that & has different views on it. They often are most concerned with results & are able to fit their ideology to match them. The answer could have addressed both of these things, people happy to know their bottom line is based on principle, not just "we like these things" (abortion rights or whatever).

Shag from Brookline said...

Larry Solum at the Legal Theory Blog in commenting on a post on an article on Justice Alito references Alito as an originalist in the nature of Justice Scalia, including the application of precedent (in convenient circumstances?), with Solum suggesting that Alito may be more assertive in this regard. Might this include Scalia-type comments during oral arguments? If so, we might compare Mt. Etna with Mt. Vesuvius.

Joe said...
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Joe said...

There is an argument on Alito referenced in a recent Balkanization Blog comment.

I guess "in the nature of" warrants some content, but the general conclusion of many people seems to me to be that Alito isn't really a firm "originalist" ... the only one who left would be Justice Thomas. The article cited there argues Alito is "in the nature of" Scalia the strongest voice of a certain conservative ethos.

Michael Gould said...

How about: When interviewing prospective Supreme Court nominees, what questions will you ask them?

Greg said...

I think Prof. Dorf may be right that the public, at least without considering it, tends towards something like originalism more than living constitution, but the issue is that they don't really care. Ultimately, people care more about outcomes than about adhering to the constitution.

Two of the more hot-button issues for the supreme court are gun rights and abortion.

On gun rights, while it isn't clear if it is a limiting clause, it's at least possible that an originalist interpretation of the second amendment would conclude that the militia clause is limiting. However, a gun-rights advocate doesn't care what the constitution says, they care about preserving gun rights and the militia clause would be a significant obstacle to that.

Similarly, on abortion rights, it isn't clear that an originalist interpretation would find doctor-patient privacy as a right in the constitution. However, an abortion-rights advocate cares more about an outcome that preserves their rights than about the particular constitutional interpretation that produces that outcome.

Joe said...

I don't think the people really need to face up to a final conflict here.

If it is "at least possible," it's fairly easy to apply the text another way. The gun advocates "care" -- they think it "says" a certain thing. Bottom line, depends on what "says" means. If that requires a lot of heavy lifting to get to some "best" reading, maybe not. But, "adhering" doesn't really require that.

I think many abortion rights advocates might not be inclined to phrase it as "doctor-patient privacy" but again it depends on what "says" means. Originalism surely not the only way to determine that.

But, it's probably true outcomes do mean a lot. They also probably influence what interpretation technique you use (though even there, they tend to be flexible -- see Prof. Balkin's liberal originalism writings). This is one reason stress over what such and such opinion of the Court says is often somewhat besides the point. The average person only cares about that when certain opinions are up for discussion.