The U.S. Constitution is not flexible, Supreme Court Justice Antonin Scalia told a University of Minnesota audience Tuesday night. It can be amended according to the rules that are laid out in the text of the document itself, but it does not “evolve.” Its text should not be brought up to date to align itself with the more enlightened views of the 21st century. And it certainly shouldn’t be updated according to the policy preferences of the nine unelected, unrepresentative and unaccountable justices of the U.S. Supreme Court.
Scalia, the leading “originalist” on the court, argues that the Constitution’s words mean what they meant to those who ratified them more than two centuries ago (except for the amendments, but those also mean and must forever mean what they meant to Americans at the time they were adopted). His presentation to a packed Northrop Auditorium was a funny, clear, full-throated defense that originalism is the only valid way to try to find the meaning of the words in the basic law of the United States.
If you try, Scalia said, it’s generally possible to construe that meaning correctly. And then, if you are a judge, your job is to apply the law according to that meaning, even if it leads to results that don’t fit with your values or your ideas of what’s best for an evolving society.
Although he spoke — often hilariously — for almost two hours, what I just said he said is what he said, and not much else. It would have been nice to hear his views contrasted with those who belong to other schools of constitutional jurisprudence, including those who believe it is not always so clear what the constitutional language means and those who believe our understanding of the Constitution evolves.
‘Living Constitution’?
But instead, the other schools were described only by Scalia, who treats them mostly with sarcasm.
Nowadays we have “a living Constitution,” he sarcasted. It means “what it ought to mean today.”
The Supreme Court recently overruled the power of the states to decide many things for themselves, Scalia said. It made same-sex marriage the law of the land, based on the idea that some rights are so fundamental and embedded in our history that they must be upheld according to the constitutional doctrine of … “I have no idea,” Scalia said, using a little comedy bit he relied on several times during talk to imply that the court’s majority in many of these cases can’t cite history, logic or law, so they make up stuff like “evolving standards of decency.”
The liberal justices claim to find “rights” that — even though they are not mentioned in the text that enumerates our rights — are “embedded in the American tradition” and then they legalize things like same-sex marriage, sodomy and abortion, even though these things — rather than being embedded in our tradition — were illegal for all or most of two-plus centuries of American history.
But things in the Constitution that strike us as out-of-date, things that we might all agree are stupid, things that perhaps should be revised by the elected branches, are nonetheless constitutional because they are in the Constitution. Scalia said all federal judges should be issued a rubber stamp and an inkpad so when matters like that come before them from plaintiffs looking for constitutional change, they can be stamped “Stupid but Constitutional.”
Scalia, the longest-tenured member of the court (he’s been there 29 years) and second oldest (he’s 79, Ruth Bader Ginsburg is 82), is the justice liberals love to hate. (Amazingly, when he was nominated by President Ronald Reagan, he was asked very few questions during his confirmation hearings and was approved on a unanimous Senate vote. Things have changed since 1986.)
Scalia argued last night that his method of constitutional interpretation (the only legitimate and democratic method, according to him) is not about reaching conservative outcomes, although it often does. He said he has provided the deciding vote in coalition with the court’s liberals in favor of liberal outcomes when his originalist, textualist method led him to that result. (The example he gave was a ruling upholding the right of protesters to burn the American flag and the lack of power of Congress or the states to outlaw such protests. Then he told the story of coming to find his wife, who he said is a very conservative person, humming the tune of “It’s a Grand Old Flag.”)
Death penalty prediction
He and Clarence Thomas are the only real originalists on the court, Scalia said, although a couple of others are “fair weather originalists” (which I take to mean that he believes they rely on originalist logic when it gets them where they want to go). Scalia predicted that before long, the death penalty will be struck down.
Scalia spoke at the university’s annual endowed lecture on the law. Last year’s speaker was Ginsburg, Scalia’s closest friend on the Supreme Court, even though they generally cancel out one another’s vote on the court. The man who endowed the lecture series, Robert Stein, a 51-year veteran of the law school faculty, interviewed Scalia. But first, Scalia gave a lecture on — guess what? — originalism.
The “killer argument” in favor of originalism, he said, is the undemocratic character of the court. Justices weren’t elected and don’t have to stand for reelection. Deciding what’s best for a majority of Americans (most of whom, he said, are Protestants) are the current justices, “six Catholics and three Jews.” Seven of the nine come from New York or California. The unrepresentative nature of the court wouldn’t be a problem if they were behaving like lawyers, reading and analyzing the law rather than making it up. But if the law doesn’t mean what it meant to those who made the law, then it means whatever these unelected lawgivers think it should mean.
Scalia also took questions, first from Stein, then from the audience. During those exchanges he said:
Everyone seems to want more “moderate justices.” But what’s a moderate justice? “Someone who splits the meaning of the text halfway between what it says and what he thinks it should say.”
One questioner challenged the “corporations are people and have First Amendment rights” ruling in the Citizens United case. Scalia sounded exasperated at having to explain the logic behind that highly controversial ruling. The New York Times is a corporation, he said. It obviously is covered by the First Amendment. “What are you going to do about the New York Times — those of you who think Citizens United was wrongly decided? [Then, putting his hand up to face in a mocking, stage-whisper gesture, he stage whispered:] The answer to that question is that there is no answer to that question.”
The last question he took challenged the idea of the Constitution’s permanent authority on the grounds that many Americans had no right to participate in process at the time of its adoption.
“Dead white males, right?” Scalia replied, clarifying what he (accurately) took to be the questioner’s point. “Look, you either accept the Constitution as a valid document. Or you reject it. But you can’t play it both ways. You can’t say ‘the Constitution’s valid in the way the House and the Senate are composed, etc., all of that is perfectly good. But the things I don’t like. They were adopted by dead white males.’ You gotta be consistent. If you believe what you say, you should lead a revolution.”
Originalism
The constitution doesn’t change (except of course when it does), but the country changes. Or does the Second only apply to muskets?
I do wonder if the founders were originalists, or whether they believed that the document they created was a living document whose construction and interpretation would change over time. I know if I were in the business of creating a constitution today, I would be very concerned about binding my successors in a remote and unforeseeable. I really don’t think, people whose main health care provider was also their barber, did a lot of foreseeing about issues related to health care in the 21st century.
Originalism includes a answer
There is a way to change the words in the constitution and it has been used many times. The bar was set high because the intent was that what was written wasn’t to be changed lightly. The entire concept of a “living document” is counter to the structure created within the document in question.
Word change
Words change all the time. And so do the things the words apply to.”Arms” mean something very different now than they did in the 18th century. The concept of commerce between the states means something very different in this century when one can travel from Boston to New York in minutes as opposed to days.
And of course, the constitution itself was largely modified by the Civil War amendments, something the founders did not foresee.
What shocks me about the originalists is their apparent belief that the founders had views about the political issues of today, that are somehow relevant. They simply didn’t. They didn’t have health insurance in 1787, and the claim the document they produced had something significant to say about the issue is simply absurd. The notion that the courts would decide those issues would have shocked them. Let’s bear in mind that the idea of judicial review itself, appears nowhere in the original text of the document. It was pretty much created out of whole cloth by Chief Justice Marshall a couple of decades later.
The method of adapting is written in to the document.
Yes everything changes and there is a method of adapting the document accordingly. Those who say it is a “living document” simply think doing it the correct way is too hard so they promote the idea that the document is basically meaningless.
The Founders Knew The Country Would Change
The Founders were not naive in thinking the country would not evolve. The Constitution was created to create a country that allowed freedom for all its people and that no matter what happened in the future, all laws were to be based upon its principles of a free people. They based this belief upon the rights given by a higher authority than any government can give. People have the right to speak freely and protect themselves from others, especially from government yet not specifically from government alone.
Liberals loathe the First and Second Amendment because they feel they are protected by the government so it is ‘outdated.’ It is the belief that our country has ‘evolved’ into doing the best for the people at all times. We all know, no matter what side of the aisle you are on, this is far from true. This is what Scalia is talking about and you, Mr. Foster, fall directly into that trap.
We always need to keep the government at bay and always able to speak freely. This is what the Founders envisioned that would last into eternity, no matter how the country evolved. The government in the past always had stronger arms and always will in the future. Yet liberal love to think that the government is there to make outcomes equal. Everyone has equal rights, not equal outcomes. Because we have a few people that have done horrific actions and/or say unsavory statements, that is not a valid reason to constrict the rights of the people. The Constitution was clear and the Founders wanted that to be the case because the rights of the people take priority over what the government does, even if any laws ‘feel’ good.
Sorry no concurrence here!
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
Eternity? Hamilton # 1 “upon many occasions see wise and good men on the wrong as well as on the right side of questions”. Are we to be held on the wrong side of the question for “Eternity”?
Hamilton #1 “a lesson in moderation for those who are ever so thoroughly persuaded of their being in the the right in any controversy.” Hamilton # 1 “”The consciousness of good intentions” not biblical scripture for eternity. Hamilton admits he is only human and will do his best as a human, “My motives nust remain inthe depository of my own breast”. Why does th e”Originalism fail” because the constitution was writtne by mortla man and the writers knew and admitted they were not with out flaw, they even call it out “serve to give a false bias to the judgment”. Eternity and originalism is for religion, not constitutions.
Please rationalize your “liberal” beating i.e open minded people “loathe” open mindedness against the why the constitution was written. Very curious on the how “promote the general welfare” can be taken in an original context, also how “to form a more perfect union” again in the “originalism” context. Originalisticaly thinking, why didn’t the framers state it as, we have formed a more, we have established, we have secured. The founders were also very knowledgeable that government is always a choice, a good judgment decision, (Madison # 41 Federalist papers) “that the choice must always be made if not of the lesser evil , at least of the GREATER, not the perfect, good;” these were gut wrenching rationales of the times for the framers, they hoped they would point us in the right direction, not a specific degree, minute and second heading, (Hamilton # 13) “there is no rule by which we can measure the momentum of civil power necessary…..” . Relative to the 2nd, not sure who would loathe having a musket and a Bowie knife, and a 1 shot pistol, with a cross, star of David or crescent moon, or whatever hanging from your neck!
The founders
expected the Constitution to changed;
that’s why they wrote in the amendment process.
In many cases where they disagreed they left the document ambiguous with the assumption that it would be cleaned up in the future when a consensus was reached on the issue.
By definition
the founding authors were originalists. In this case, circular arguments do come full circle.
Your argument is biting its tail
Washington, Madison, Hamilton and Jay did not intend the Constitution to remain in its original for in perpetuity.
The fact that they wrote (actually Morris wrote) the original document doesn’t mean that they intended it to be frozen in time.
Deprecation
Who continues to write MinnPost headlines that do not properly match the text? This author’s examples better fit the meaning of “deprecation,” not “ridicule.”
Odd…
It’s odd how often the views of the founding fathers align with those of Scalia – or vice versa. A little more self-awareness might help with that, but it’s asking a lot.
A lifetime appointment, elegant surroundings, months off. Nice work if you can get it. It probably makes it hard for some justices to imagine how most of us live.
Great write-up
I had the privilege of attending Scalia’s lecture, and Eric did a great job of capturing the gist of the message. Justice Scalia was funny, he was brilliant and it was a reminder that he has more personality than the other eight justices put together.
His finest point on the unfortunate concept of the “evolving” constitution came in reference to giving women the right to vote. The suffrage movement didn’t run to court and claim that under the Equal Protection clause, women should get the vote; Instead, they used the process laid out in the Constitution itself and amended it. By contrast, today we run to court, screaming “unconstitutional” about any policy we don’t like. Scalia is absolutely right that in the long term, the idea of having unaccountable judges make decisions that ought to be made by legislators is fatal to the idea of democracy.
Thanks, Eric, for taking the time to cover the event.
Not his finest point
The suffrage movement is not, in fact, a compelling example in favor of Justice Scalia’s ideas on originalism and textualism. It’s easily distinguishable from the other concerns he expressed. Indeed, franchise under the un-amended Constitution was limited to only some men. The better part of a century later the 14th Amendment was adopted and specifically limited the franchise to “the male inhabitants” of the States. The 15th Amendment stated that the right of the “citizens” to vote couldn’t be abridged “by race,” yet women were still not allowed to vote. That wasn’t fixed until the 19th Amendment.
There was no interpretation of constitutional meaning that, given that language, would allow women to vote without a constitutional amendment. A constitutional amendment was the only legal means available.
That’s not true of the bulk of Justice Scalia’s remaining concerns. Marriage wasn’t limited to a union between opposite sex partners under the Constitution, so it was not a matter of amendment, but of interpretation. The same is true of the first example Justice Scalia gave while complaining about substantive due process. The Constitution says nothing about the rights of parents at all, let alone their right to educate children in the German language. It was not a matter of amendment, but of constitutional interpretation. This list could go on and on to cover nearly all of his concerns
So Justice Scalia’s analogy was a failed one. He didn’t seem to recognize the universally recognized duty of courts to interpret the law when the Constitution or US Code (or state laws) are silent or vague. We’re a common law nation, as our founders specifically desired. His honest complaint is that he doesn’t often like the results we see when the need for interpretation arises. That’s tough luck for him, and as he counseled audience members to do, he’s free to try and persuade others to his point of view regarding those outcomes. It does not, however, necessitate that originalist or textualist approaches to the Constitution are the only available or workable approaches. As for me, I think they’re the necessary starting point, and sometimes the ending point, for such analysis, but oftentimes neither is enough.
I think Justice Scalia would do well to heed the words of Chief Justice John Marshall, who was in fact one of the founders of our nation, and in a far better position to know the “originalist” meaning of our Constitution than Justice Scalia or any of us alive today. Chief Justice Marshall aptly stated that the Constitution was “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.” M’Culloch v. State, 17 U.S. 316, 415 (1819) (commonly referred to as “McCulloch v. Maryland”).
The laughable sad fact
Is that legislators today are incapable of making important decisions and that does nothing for democracy either.
Since women were not citizens
the Equal Protection clause did not apply to them.
That’s why they had to amend the Constitution to define women (and later blacks) as citizens.
Of course, the Constitution did not define citizen until the 14th Amendment; before that it simply referred to ‘citizens of the states’.
That’s nonsense…
The 14th amendment passed in the 1860s, and established – among other things – that anyone born in the United States was a citizen. The leaders of the suffrage movement 50 years later were all citizens and could have chosen to make an Equal Protection case. Instead, they took the path of pursuing a constitutional amendment, resulting in the 19th amendment and women’s right to vote.
Yes, but . . .
Up until the mid-20th century (after women received the right to vote), the 14th Amendment was interpreted as protecting only federally guaranteed rights (see the Slaughterhouse Cases). Eligibility for the suffrage was considered a power of the states, subject only to the limitations of the 15th Amendment.
Not that simple
Read Sec. 2 of the 14th Amendment and Sec. 1 of the 15th.
Women do not have full citizenship rights.
The wording of the 15th in particular
(“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”)
would have made an Equal Protection argument problematic.
Not nonsense
Respectfully, Mr. Droogsma, it’s not nonsense. As I posted above, the 14th Amendment specifically limited the franchise to “the male inhabitants” of the States. The 15th Amendment stated that the right of the “citizens” to vote couldn’t be abridged “by race,” yet women were still not allowed to vote because the franchise was limited by the 14th Amendment to “male” citizens. That wasn’t fixed until the 19th Amendment.
That’s why the suffragists had no choice but to gain the franchise by amendment. The other issues of concern to Justice Scalia, as I posted above, were not issues that are specifically delineated in the Constitution, and so were a matter of constitutional interpretation, not of amendment. Selectively reading the historical record, if that’s what you’ve done here, is easily disproved. Justice Scalia’s choice of the 19th Amendment to illustrate his point was a bad choice. It’s a failed analogy.
as i point out below
Amendment XIV did not limit the franchise to males or prevent States from extending it to women. Women in several Western states could and did vote, and a woman was elected to the U.S. Congress, before ratification of Amendment XIX.
That is not the point
The 14th Amendment did not say anything about the rights of women to vote;
just those of males.
“….But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State….”
Strict constructionist? He is til he ain’t…
When the chips were down and he had to make likely the most consequential vote of his tenure he showed his true colors: a constructionist when convenient and a revisionist when needed.
“It’s been ten years since the Supreme Court decided Bush v. Gore, and everyone involved–especially the justices themselves–would like it to slip out of our collective memories. Brown v. Board of Education was cited 25 times in the decade after it was decided, Roe v. Wade 65 times. But not a single time has the court cited the ruling that ended the 2000 election. Justice Antonin Scalia frequently urges audiences to just “get over it.””
Despite Scalia’s Claims About the “Fair Weather Originalists”
he, himself seems to be completely unable (or unwilling),…
to examine and discern what “the founders” had in mind in the Second Amendment of the constitution, though there’s plentiful evidence available (as just one example).
In reality, Justice Scalia is a complete fraud in his claims of “originalism.”
There has not been a SINGLE instance where what he CLAIMS “the founders” meant when they wrote the constitution,…
contradicts, or even calls into question his previously-expressed, preexisting, “true beliefs.”
It turns out that, under Justice Scalia’s view of “originalism”,…
“the founders” always and forever agree with HIM,…
which means his “originalism” has nothing to do with what the founders may have had in mind.
His tendency to anger and rage when he’s pressed about the basis for some of his “originalist” beliefs is not “exasperation.”
It’s a smokescreen he throws up to deflect the question and hide the fact that he has ZERO evidence that the founders agreed with the position he now holds,…
and to seek to mask the reality that he is incapable of allowing evidence against a point of view he does not already hold to enter his awareness,…
and will behave in identifiably infantile (at what age does a child hide behind their hands to avoid seeing something scary?),…
even very naughty ways (such as flipping people off)…
to avoid that possibility.
Living document
The only people who think the Constitution is a living document are those who don’t like what it says.
Hmmm
And what facts prove that one person’s interpretation of the Constitution is empirically correct and the others is empirically wrong? As well as, how does one know empirically what was in the minds of the writers? Did not the writers have any sense that times, conditions would change? They had just thrown off a monarchy and created a new country, the first of its type in history, the great experiment. These were learned & educated men, and many not so Theologically restricted “Read written by hand of god) . The thought that they would leave the constitution only open too (1) original interpretation (A god type written document brought down form the mount) seems not only ludicrous but arrogant and ignorant in interpretation i.e if the writers had something wrong, (or we originally interpreted wrong) we are to go through eternity doing stupid things full knowing they are stupid. Is that what this country was founded on?
Equal Protection
Justice Scalia is also an “originalist” fraud when it comes to the very plain language of the equal protection clause of the 14th Amendment.
Little Confirmaiton Scrutiny
//Amazingly, when he was nominated by President Ronald Reagan, he was asked very few questions during his confirmation hearings and was approved on a unanimous Senate vote. Things have changed since 1986.
My memory may be a little fuzzy from those mid-80s college days, but Scalia was nominated to replace William Rehnquist after his elevation from associate justice to chief justice. There was a great deal of energy expended on that nomination (or at least a great deal by mid-80s standards of judicial nominations), so Scalia’s nomination was more of a “let’s get this over with so we can move along to other issues”. It was barely a year later we saw the Robert Bork debacle.
Due process
A big reason why women didn’t go to the courts to secure their right to vote, unlike the Sourthern AG’s who went to the courts to limit the right to vote where they were received warmly by Justice Scalia was that the court of that day had managed to bind itself in very unfortunate ways by precedent.
Let’s not forget also that the Supreme Court played a leading role in bringing about the greatest catastrophe in our historyr. It was the court, in the Dred Scott decision, that intervened in the politics of the day, applying what they regarded as the original intent of a document that embraced human slavery, setting in motion that led to the Civil War. The constitutional result of that folly was the the enactment of the Civil War Amendments, which in three short articles essentially rewrote the constitution as originally drafted by the founders, whose original intent at that point became largely irrelevant.
“What are you going to do about the New York Times”
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”
I’m not sure, but I think that the New York Times usually falls under the umbrella of “the press.”
I will disagree with Justice Scalia
The less charitable hypothesis is that he uses “originalism” as a jurisprudential camouflage for the retrograde outcomes that it almost always produces. More charitably, I will suggest simply that he is wrong.
A law addresses concrete relations in society and is subject to modification by a standing legislative body that (in theory) is responsive to the citizenry. Judges therefore must apply a law with as much literal-mindedness as the clarity of the text will allow. If they get it wrong, the legislature (so it is said) will make the correction. But Justice Scalia treats constitutional interpretation as though it were statutory interpretation.
The Constitution (and moreso the Bill of Rights) does not address concrete relations in society. It expresses the underlying values that are to guide our society in arranging its affairs, and the legislature in enacting its laws. It is correct to hold an “originalist” stance toward these values: they do not change over time. But keeping our society aligned with these values over time requires evaluating concrete relations in their social context. Accordingly, relations that may not merit constitutional protection at one time may merit it at a later time as our social and economic conditions evolve. Conversely, some relations previously may have been of constitutional importance, but no longer are.
In large part, Justice Scalia argues for Originalism not on its merits, but because the alternative, the reasoning of nine Supreme Court members, is anti-democratic. First, at least with the Bill of Rights, that is as it should be – the Bill of Rights exists to check the tyranny of the majority. Second, it isn’t convincing that because Supreme Court interpretation is imperfect we simply shouldn’t do it at all and should just accept the crabbed anachronistic role for the Bill of Rights that results.
Lower court judges should be skilled technicians of the law. Supreme Court judges should be as well, but beyond that they should be those from the profession who are most gifted at perceiving and synthesizing the currents of our society as they relate to individuals’ pursuit of meaningful lives in the given time and place, and at discerning from that when the values expressed in the Constitution require that the law be involved in protecting the relations at issue.
A conversation among nine such gifted individuals, and with broader civic participation in that conversation over time, is the means by which we as a society have chosen to give the Constitution effect. At times during our history this has worked quite well. It doesn’t work as well when members of the Court, such as Justice Scalia, refuse to participate.
Originalism
Do we look at other texts “originally”? When we read “A Christmas Carol”, for example, do we focus on the way it was read in Dickens’ time? When going to Shakespeare plays, are all productions not performed in a circular, open air theaters, with boys playing the female parts dismissed out of hand?
When did originalism itself originate? Is it something the founding fathers talked about as a guide? Or did it become a legal fashion somewhere around 1973?
Unelected
As to the points emphasized in the following “And it certainly shouldn’t be updated according to the policy preferences of the nine unelected, unrepresentative and unaccountable justices of the U.S. Supreme Court”…
Housing the nation’s highest court and its member in positions void of elections is important in that those reviewing the law are not doing so out of fear over the next election. Their judgements cloistered from political winds.
With regard to the notion they are unrepresentative, that is a matter of subjection. To some the Court perfectly represents them; to others its rulings are anathema to their belief structure. In reality, the Court and its individual members are representative, but of constituency that existed at the time of appointment – thus the often generational animosity that is felt when rulings on hot button social issues are handed down.
And finally, the Justices are accountable. They are accountable through the threat of impeachment and by history. Impeachment seems unlikely in the modern era, but not out of the realm of possibility. And to history, rulings and those behind them will be judged by future appointments and Courts.
Much like the Senate was and should rightfully be, the Supreme Court is an institution that moves slowly and for good reason. The people are fickle and often prone to outburst without regard for what’s next.
Essence of the People
We all seem to know so much about the founding intent and projections for future centuries.
The United States has a Constitution of essential principles meant to establish elements key to the formation and successful continuation of a newly independent society, free of oligarchs and monarchs.
Those principles were meant to endure in forming the foundations of specific and contemporaneous amendments as we grew and evolved from a coastal enclave into an expansive nation. What became the Louisiana Purchase was certainly imagined if not yet executed. Millions of people quickly came from elsewhere to live and grow under this umbrella of freedom, opportunity…and protections.
Let’s quibble with specific laws and regulations, not the principles, please.
Straight-jacket
Whoever photographed Scalia for this article captured precisely, if not humorously, this man’s view of the Constitution as a “straight-jacket.”
I think what Scalia calls “originalism” used to be called “formalism” and was the philosophy of many of the justices before FDR’s appointments assumed stronger control over the court. “Formalism” was committed to a narrow interpretation of the Commerce Clause and other Congressional powers, the “necessary and proper” and “general welfare” parts of Article I not adding anything as other justices who viewed these as allowing more elastic interpretations. The justices who adhered to formalist interpretation of the Constitution had no difficulty finding state and federal legislation they disagreed with unconstitutional.
Mostly, before Scalia, one hears of “originalism” applying to Hugo Black, who took a very “strict construction” of the Bill of Rights, especially the First Amendments, which he viewed as the foundation of the entire government, a “public opinion state” idea.
“The United States has a Constitution of essential principles meant to establish elements key to the formation and successful continuation of a newly independent society, free of oligarchs and monarchs.”
Actually, if you read it, the constitution is about as full of principles as an instruction manual. The constitution isn’t a policy document. It’s a document that forms the foundation of a government once created, pretty much works on it’s own. It doesn’t really tell us about health insurance or how large an army to have. It does tell us Congress has the power to regulate the value of money, which in the real world of the 21st century it doesn’t have it all. It does tell us that slaves count as three fifths of a man, and that trafficking in human beings would be legal at least for a while.
I think Justice Scalia is fundamentally wrong in his understanding of what our constitution is, or what wise individuals than as now think it should be. The framers of the constitution, beyond some general guidelines created a document that was intended to be flexible enough to be responsive to changing conditions that they couldn’t possibly foresee. That was living, as opposed to dead. And in his actions as opposed to his words, Justice Scalia who thinks that the framers words had something to do with modern 21st century health care, seems to believe that too.
Women Voted before Amendment XIX
No, Amendment XIV did not limit suffrage to “male inhabitants.” It did specify that, if any State restricted the voting rights of its male inhabitants, its representation in Congress would also be reduced. It did not prevent States from extending voting rights to women. In fact, the first woman elected to Congress, Jeanette Rankin of Montana, won her seat in 1916, four years before the ratification of Amendment XIX. Women in Montana and several other Western states could vote in federal, state and local elections at that time. No idea why the equal protection case for woman suffrage was not made, but it may have something to do with the fact that the U.S. Senate had rejected a suffrage amendment proposal in 1887 and the organizations thought they might have a better chance in legislatures than in courts.
It’s fair to state that if we adhere to “originalism” we really should oppose voting rights for minorities, women, Catholics, Jews and renters as only white male Protestant property owners were allowed to vote in the Eighteenth Century.
The fact that
the 14th Amendment “did not limit suffrage to ‘male inhabitants'”
in no way guaranteed female inhabitants the right to vote.
Non Sequitur.
Minor v. Happersett 1875
…made the equal protection case for woman suffrage, which the Supremes denied after reaching the rather surprising conclusion, since rejected, that the rights and privileges of U.S. citizenship do not necessarily include the right to vote.
Not So Surprising for its Time
At the time Minor was decided, the only voting rights in the Constitution were for males over 21. Their right to vote cold not be deprived based on race, color, or previous servitude. The franchise would not be expanded as a matter of federal law until 1920 (or 1919, if you want to make a broad reading of the rule that Senators are elected “by the people”). The Fourteenth Amendment protects the “Privileges and Immunities” of US citizens against state action, but according to the Slaughterhouse Cases, only insofar as those privileges and immunities are based on federal law (Justice Thomas, BTW, opposes this reading).
The contemporary reading of the Equal Protection Clause as prohibiting gender discrimination only dates back to 1976.
Marbury v. Madison
With all this talk about originalism on the Supreme Court, nowhere in the constitution is the subject of judicial review mentioned. Of course, in retrospect, it seems inevitable, but then so much we view in retrospect seems inevitable. Indeed, it’s corollary of something Sherlock Holmes liked to say that only what has happened is possible.
Is it tenable for an originalist to believe that Marbury v. Madison was correctly decided? Is there any more glaring example of judicial legislation in our history?
Judicial review was already an accepted practice by the time Marbury was decided. Judicial review predates independence; in fact, it was recognized in English law before widespread settlement of North America. In the Federalist Papers, Alexander Hamilton recognized that the courts would be the ultimate arbiters of the constitutionality of statutes. The true significance of the case is that it was the first time the Supreme Court had invalidated an act of Congress on the grounds that it was unconstitutional.
There is a fascinating series on C-SPAN right now, and I’ll bet you never thought you would see that sentence written non-ironically. It’s called Landmark Cases. The video of the show about Marbury is online.
Hamilton
While that may have been Hamilton’s personal opinion, it’s not one he was able to include in the Constitution.
The Constitution is not an exhaustive list of our rights.
You should read the 9th Amendment some time.
Oh, what the heck, I’ll do the work for you:
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The ninth amendment contemplates the possibility that there are rights not mentioned in the constitution. This is problematic for those favoring original intent since it leaves the door open for someone, to assert that there are rights in addition to those provided in the constitution. It really makes the constitution a very open ended document.
I don’t personally, that judicial review is a right retained by the people; it’s a power of judges. But I do understand that there are many who believe they have the right not to obey a law they disagree with.