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08/04/10
by David Strauss
Anything Goes? The alternative to “Originalism” isn’t a loosey-goosey style of interpretation, but depends on common law and is based on precedent.
Originalism is a zombie idea. It has been dispatched a million times, but it keeps marching on. Like any good zombie, it mutates. Once it was the idea that “original intentions” govern the interpretation of the Constitution; then it became “original understandings;” now the au courant version is the “original public meanings” of the words of the Constitution. In each of its forms, the problems with originalism have been exposed, over and over. But it is still with us.
Why is that? There are many reasons, but one is captured by the politicians’ saying that you can’t beat somebody with nobody. What is the alternative to originalism? The usual answer is “living 
constitutionalism.” And the idea of a living constitution seems to mean, to many people, that judges can just make things up. Elena Kagan made it very clear in her confirmation hearings that she is no originalist. But when asked about “the idea of a living Constitution,” she remarked that “people associate” that idea “with . . .a kind of loosey-goosey style of interpretation in which anything goes, in which there are no constraints, in which judges can import their own personal views and preferences.” And, she added, “I most certainly do not agree with that.”
Kagan’s comment is fair, and revealing. The opponents of originalism have had a hard time explaining what their theory is. My book, called The Living Constitution, is an attempt to give that explanation. The argument of the book is that the alternative to originalism is not “anything goes” but a very familiar kind of law, one that antedates the Constitution itself: the common law, based on precedent. Constitutional principles develop through precedents and traditions, established by court decisions and, in important ways, by the actions of other institutions. The precedents are modified and occasionally overruled, but they determine the basic contours of the law. And like the common law, American constitutional law is influenced by judgments of fairness and social policy—but, again like the common law, only in ways that are constrained and limited by the precedents that have developed.
This is not to say that the text is irrelevant—far from it. On some matters, the text governs absolutely. That is why each state has two Senators, the President leaves office on January 20th of the year after an election, and so on. These are not trivial matters; they are far more important than many of the issues that are routinely litigated in court. And these issues are squarely settled by the text—that is why they are not litigated. Besides that, every constitutional principle, no matter how refined or elaborated by precedent, has to be connected, in some way, to the text. But constitutional law does develop and change over time—something originalists have a hard time explaining. And the principal way that constitutional law develops is not (as originalists would presumably say) by increasingly refined study of the precise wording of the text or by gaining new historical insights into the era in which the text was adopted. It is by the elaboration of precedents in a common-law-like way.
That is our living constitutional system. It is very far removed from “anything goes”—the centuries-long history of the common law of contract, tort, and property is evidence of just how constraining the common law can be. What’s more, it is impossible to understand how constitutional law has developed in the United States without seeing that it is, in important ways, a common law system. In the book, I discuss two of the most notable developments—Brown v. Board of Education, and the law of freedom of speech. Brown is famously hard to justify on originalist grounds, unless originalism is conceived in such an abstract way that it can justify anything. But there is a straightforward common law-like justification for Brown: by the time Brown was decided, the Court had, in a series of cases, chipped away at the principle of “separate but equal” to the point that there was almost nothing left. Brown was not a bolt from the blue but the last step in a line of cases of the kind that is characteristic of the common law.
The law of the First Amendment also presents a common law story. The complex body of law that protects free speech in the United States cannot simply be derived from the text of the First Amendment, which, in isolation, leaves many questions unanswered. It is also not about what the original understandings (or meanings, etc.), some of which are starkly inconsistent with what we take to be absolutely fixed principles today. (For example, at the time the First Amendment was adopted, it seems to have been understood that blasphemy could be outlawed and that “the freedom of speech” had nothing to do with defamation; and attitudes toward putting people in jail for criticizing the government were, by today’s standards, shockingly equivocal.) Instead, the current American constitutional law of free speech is the product of a trial-and-error process that took place over the course of the twentieth century. In that process, the courts—and people outside the courts—hammered out, in fits and starts, by trial and error, the elaborate principles that, today, we think of as “the First Amendment.”
This version of the living constitution is not inherently progressive or conservative. It is simply what our system is. There are well-established conservative and liberal principles of constitutional law that cannot simply be read off of the text of the Constitution and that find little or no support in what the Framers did—but that are firmly rooted in precedent. The great advantage of common law living constitutionalism is that—unlike orignalism—it is candid. It acknowledges that we have to make decisions for ourselves—albeit decisions rooted in what has gone before—instead of simply following orders handed down from the Framers. And it shows how, to quote Solicitor General Kagan again, “development of our constitutional law does indeed occur”—but in a way that does not amount to saying that anything goes.
David A. Strauss is a Professor of Law at the University of Chicago.
Tags: David Strauss, JB, Buy My Book, Judicial Nominations, The Constitution
06/02/10
by Barry Friedman
Farrar, Straus and Giroux, 2009
For the first time in years, as the Supreme Court winds up its “busy” season – when most of the big decisions come down as the justices scramble to finish their term for the summer and get out of town – the justices are already the center of serious controversy and attention. January’s Citizens United decision brought condemnation from the President, a dust up with the Chief Justice, and relentless attention from the media, the blogs, and members of Congress. Then, to put icing on the cake, Justice Stevens announced his retirement, Elena Kagan drew fire as the President’s nominee as we await the start of yet another summertime confirmation hearing.
What can we expect in the months ahead?
My book ends just as Chief Justice Roberts and Justice Alito took the bench in 2005. Things were quieter then, but predictions from the left were equally dire. So much so, that I began the Conclusion with a prediction of my own: “the long-run of the Roberts Court is not seriously in doubt; its decisions will fall tolerably within the mainstream of public opinion, or the Court will be yanked back into line.” I stand by that prediction, as well as the sentence that followed: “Whether or not this is a good thing – the question typically is obscured by passionate debates over the proper role of judges in a democracy – is far more difficult to say.”
The Will of the People is a history of the relationship between the Supreme Court and popular opinion, from 1776 to 2005. It is written against the claim, prevalent in both academic and popular discourse for over two hundred years, that the justices are impervious to popular control and thus an uncontrollable and anti-democratic force in American democracy. What I show is that ultimately the justices are accountable to the public. Many weapons have been employed throughout history against the Court when its decisions were perceived as threatening or beyond the mainstream. The Court has been “packed;” its jurisdiction stripped, its members threatened with impeachment, their salaries frozen; the justices have been burned in effigy!
As a consequence, the justices understand the limits of their power. Since Franklin Roosevelt lost the battle and won the war in his fight with the Supreme Court, the justices’ opinions in the big cases have tended over time to come into line with popular opinion. Which is why I believe the most likely outcome of this busy June is that the Roberts Court will hold its fire. And that if it doesn’t, and if the public disagrees, some correction will be brought to bear.
How we should feel about this, though, is complicated – and this complications should weigh equally on the political left and right alike. There is another longstanding view of the Supreme Court, one that sees the justices as protectors of minorities and constitutional liberty. Just as my book calls into question the assertion that the Supreme Court is a starkly independent institution, immune from popular control, it also raises doubts whether the justices ordinarily can or do fulfill this heroic mission.
I ultimately conclude that the highest function the Court fulfills is in stirring precisely the sort of controversy we see today. It forces the body politic to decide what it believes is the proper interpretation of the Constitution. The Supreme Court ought not to be a meter registering the latest Gallup Poll. But if the justices’ decisions lead us to debate the proper meaning of the Constitution, and if over time the justices adopt the “considered judgment” of the American people on such questions, then this might just be a function worth having in a democracy.
Barry Friedman is the Vice Dean and Jacob D. Fuchsberg Professor of Law at New York University School of Law. He contributes regularly to The New Republic, The New York Times, The American Lawyer, and Forbes.com, among others. The Will of the People is his first book.
Tags: Barry Friedman, Supreme Court, The Will of the People, Buy My Book
05/12/10
By John Schwartz
Short: Walking Tall When You're Not Tall At All (Flash Point, an imprint of Roaring Brook Press, 2010)
This book is not really for you. That is to say, yes! Go ahead and buy it! But in fact, "Short" is written for young people -- kids from about the age of 12 to 17. It's about being short, which is a topic I know a lot about. At five foot three inches tall, my truth is that I am a short American.
I am shorter than my parents. I am shorter than my wife. I am shorter than my children. (My daughter has to stretch.) Growing up, it bugged me. Once I reached adulthood, I was no longer unhappy about being short, but I became increasingly unhappy with what being short had come to mean: flawed. Pharmaceutical companies, pushing for the government's permission to sell human growth hormone to children who were merely short, as opposed to those whose bodies can't produce enough of the hormone. In other words, the companies were offering to cure the condition known as idiopathic short stature.
We short guys weren't just little. We had a condition.
I wondered how that message is being received by kids growing up today, and worried about whether they would feel that they didn't measure up in more ways than the obvious. And as I did more research, I found references to studies that suggested short people have a harder time in school, earn less than taller folks and tend to be less successful. It seemed terribly unjust to me -- a burden on any child. But the deeper I dug, the more clear it became that the studies didn't actually doom shorter people to a second-class life. And so I decided to write a book to tell kids that they are, in fact, all right. And that they can walk tall. The book is part science test, part memoir and part manifesto.
It's a sneaky book, though. Randy Pausch, the author of the bestselling book The Last Lecture, his statement of hope while dying of pancreatic cancer, borrowed from the game of football to talk about "head-fake learning." On the field, the head fake tricks the opposing player into thinking you're headed in one direction when you actually plan to spring in another. But in the classroom, he said, head-fake learning is what the coaches did: "the one that teaches people things they don't realize they're learning until well into the process." So while a coach might seem to be teaching the rules of a game, the kids are actually learning things like teamwork and perseverance.
My head fake in writing this book is to entertain the reader with personal stories about growing up short and horror stories about the lengths people will go to in order to change their appearance -- the squeamish might want to skip over the passages about leg-lengthening surgery -- while giving them stealth lessons in science, methodical reasoning, statistics, sociology and psychology. And if I clown around a little to get a laugh, well, that's what the old Highlights magazine for kids calls "Fun with a purpose."
In a time when we seem most focused on teaching our children to score well on tests, I was hoping to give them a springboard to learn for the sake of learning, with a hook I hoped would excite them.
What does this have to do with justice and the law?
Back when our family was living in Maryland, I took on the role of a writing coach for kids preparing for their bar and bat mitzvahs. I would sit down with each one and go over the passage that had been assigned to them, and to help them explore the themes through the examination of more than a thousand years of scholarship and commentary.
What I found, over and over, was that the kids surprised me. They rose to the occasion, they had ideas of their own that they melded with the text. The kids responded most reliably to passages that touched on the theme of justice -- even if the greatest injustice one of them had known was overly broad restrictions on skateboarding in his local park. "It's not fair!" he said. "Put it in your speech," I said.
I had come to think that an injustice is being done to short kids -- and to any kid who is too short, too tall, too fat, too anything. Not meeting the norm is not a condition or a crime, but we were telling them they aren't good enough because of a factor they can't control. (The efficacy of the hormone shots is debatable, but many scientists believe that a child who receives the shots will go, as one put it to me, from being short to being short.) And so I teach them about the focusing illusion, in which we think that every problem we have flows from one problem, and try to help them think beyond it.
In my sessions with the Temple kids, we would not only discuss justice. We'd also discuss what's called tikkun olam -- literally, repairing the world. This small book, in its small way, is an effort at repairing the damage that we do to our kids by telling them they are not good enough.
John Schwartz, writes about law for the New York Times, and is the author of Short: Walking Tall When You’re Not At All.
Tags: John Schwartz, Buy My Book
04/22/10
Buy my Book: The Life You Can Save, by Peter Singer
Imagine you come across a small child who has fallen into a pond and is in danger of drowning. You know that you can easily and safely rescue him, but you are wearing an expensive pair of shoes that will be ruined if you do. It would be wrong–monstrous, in fact–to walk on past the pond, leaving the child to drown, because you don’t want to have to buy a new pair of shoes. You can’t compare a child’s life with a pair of shoes!
Yet while we all say that it would be wrong to walk past the child, there are other children whose lives we could save just as easily–and yet we don’t. UNICEF, the United Nations Children’s Fund, estimates that nearly 9 million children under 5 die each year from causes related to poverty. That’s 24,000 a day—a football stadium full of young children, dying every day (along with thousands of older children and adults who die from poverty every day as well). Some die because they don’t have enough to eat or clean water to drink. More die from measles, malaria, diarrhea and pneumonia—diseases that don’t exist in developed nations, or if they do, are easily cured and rarely fatal.
Describing a case in Ghana, a man told a researcher from the World Bank: “Take the death of this small boy this morning, for example. The boy died of measles. We all know he could have been cured at the hospital. But the parents had no money and so the boy died a slow and painful death, not of measles but out of poverty.
Many organizations are working to reduce poverty and provide clean water and basic health care. If people donated more to these organizations, they could save more lives. Most people living in affluent nations have money to spare, money that they spend on luxuries like clothes they don’t need, vacations in exotic places, even bottled water when the water that comes out of the tap is safe to drink. Instead of spending money on these things, we could give the money to an organization that would use it to reduce poverty, and quite possibly to save a child’s life.
Of course, the situation in which you can rescue the child in the pond is not exactly the same as that in which you can donate to an aid organization to save a child’s life. There is only one child in the pond, and once we have saved him, we have solved the problem and need not think more about it. But there are millions of children in poverty, and saving one of them does not solve the problem. Often this feeling–that whatever we do will be merely “drops in the ocean” –makes us feel that trying to do anything at all is futile. But that is a mistake. Saving one child is not less important because there are other children we cannot save. We have still saved a life, and saved the child’s parents from the grief that the parents of that boy in Ghana had to suffer.
Saving a child drowning in a shallow pond is a simple thing to do, whereas reducing global poverty is complex. But some aspects of saving human life are not so complex. We know that providing clean water and sanitation saves lives, and often saves women hours each day that they previously spent fetching water, and then boiling it. We know that providing bednets reduces malaria, and immunizing children stops them getting measles. We know that educating girls helps them to control their fertility, and leads them to have fewer children.
In The Life You Can Save, I explore this argument in more depth, and consider objections. I discuss whether aid is effective, and how we can be confident that our donations are making a difference. I also propose a realistic scale for giving. (You can also find that at www.thelifeyoucansave.com.)
If justice means anything, surely it means that when people are, through no fault of their own, unable to meet their basic needs, then others who have an abundance–as much by the accident of being born in an affluent country as by hard work or skill–ought to help them. It’s not hard to do.
Peter Singer is Ira W. DeCamp Professor of Bioethics at Princeton University and laureate professor at the Center for Applied Philosophy and Public Ethics. He is the author, co-author, or editor of more than thirty books including The Life You Can Save: Acting Now to End World Poverty (Random House, New York, 2009).
Tags: children, justice, Peter Singer, Buy My Book
04/01/10
by Jeff Shesol
Supreme Power began, as many books do, as a nagging question.
The Court-packing fight is one of those historical events that gets mentioned frequently and yet, despite its significance, is never really explained. For all the continuing fascination with FDR—for all the books on his early years, his illness, his domestic life, and his leadership through depression and war—his conflict with the Court has received scant attention, even in ambitious, full-scale biographies. The Court fight is usually reduced to a neat, pat parable of presidential overreach, of second-term hubris.
That portrayal, for me, raised more questions than it answered. Is it really enough just to say that Roosevelt was feeling arrogant after his landslide re-election in 1936 and lost his head, deciding to strike back at a Court that had been overturning the New Deal? I didn’t think so; but when I began this project five years ago, I was at a loss to explain how Franklin Roosevelt, described at the time as “the greatest politician ever to be placed within a human skin,” did something as apparently radical and self-destructive as proposing to pack the Court. What drove FDR to make the biggest political miscalculation of his life? That was the mystery that drew me in.
There were other enduring questions at the heart of the story. Most significantly, what led the Court to change course—to make the “switch in time that saved nine”—in the middle of the fight and start upholding the New Deal? Was the Court coerced into endorsing FDR’s programs? Did Justice Owen Roberts—the deciding vote—wilt in the heat generated by the Court plan? Or was his evolution self-directed, as some historians suggest? And finally, what led Congress to reject the Court-packing plan and defy FDR—after four years in which Democrats had gone along with virtually everything he had proposed?
Answering these questions, I came to believe, is essential to understanding FDR and his times. In the years before World War II, Roosevelt’s battle with the Court’s conservative justices was the defining conflict of his political life. He and the so-called “Four Horsemen” were the chief combatants in the greatest constitutional crisis since Reconstruction. The nation in 1937 was at a crossroads, poised uncomfortably between past and future, and between conflicting notions of the Constitution: one fixed, the other fluid. The Court majority’s momentous shift from a last-ditch defense of property rights to an embrace of emergent social and economic rights began in this moment—in the crucible of its conflict with Roosevelt.
The answers also tell us something about our own times.
Of course, I didn’t write Supreme Power with any knowledge that President Obama, like President Roosevelt, would rebuke the Court in a State of the Union address, or that the centerpiece of Obama’s legislative agenda, like Roosevelt’s, would face an immediate assault in the nation’s courtrooms. But I did write the book in full awareness that the battlefield of FDR’s Court fight is still—is always—contested ground.
The questions at the core of Roosevelt’s struggle with the Court are always open questions: about the meaning of the Constitution, the limits of presidential and governmental power, and whether democracy can be made to work in times of economic distress. History may not repeat itself, exactly, but it does have a way of echoing itself—sometimes loudly. Today, I think, is one of those times.
Jeff Shesol is the author of Mutual Contempt: Lyndon Johnson, Robert Kennedy and the Feud that Defined a Decade. He was deputy chief speechwriter to President Bill Clinton and is a founding partner of West Wing Writers, a speechwriting and communications firm.
Tags: Executive Power, Jeff Shesol, New Deal, Presidents, Franklin Roosevelt, separation of powers, Supreme Court, Buy My Book
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