Guest Blogger: "Constitutional Vision" - Part 5
This is the fifth in a series of six posts by Geoffrey R. Stone, professor of law at the University of Chicago Law School, on "Constitutional Vision."
Supreme Imbalance: Why Originalism and Conservative Activism Are Wrong
In earlier posts in this “Supreme Imbalance” series, I identified four approaches to constitutional interpretation – judicial passivism, originalism, conservative activism, and liberalism. In my last post, I considered and rejected one of those approaches – judicial passivism. In this post, I will evaluate (and reject) originalism and conservative activism.
“Originalism” purports to respect the intent of the Framers. But it has gained no credibility over the past quarter-century, despite the earnest efforts of its proponents, in part because it does precisely the opposite. The central premise of originalism is that courts should hold nothing unconstitutional that the Framers themselves did not intend to hold unconstitutional. But this conception of constitutional law fundamentally misreads the intent of the Framers. It assumes that the Framers intended to limit the effect of the Constitution to only those outcomes that they themselves consciously expected and intended.
But in drafting the Constitution, the Framers were not enacting a series of specific and predetermined rules. “Congress shall make no law” prohibiting the “free exercise” of religion or abridging “the freedom of speech;” no person shall “be deprived of life, liberty, or property, without due process of law;” and no person shall be subjected to “cruel and unusual punishment” were not designed as crabbed, narrow ordinances like speed limits. Rather, they were intended to serve as open-ended aspirations that would gain meaning and vitality over time.
As men of the Enlightenment, the Framers conceived of rights as inherent in nature and “founded on the immutable maxims of reason and justice.” They understood them much as they understood the laws of science. That is, just as they knew that they did not know all there was to know about biology and physics, so too did they know that they did not know all there was to know about their rights. Just as reason, observation, and experience would enable man to gain more insight into philosophy, science, and human nature, so too would they enable him to learn more over time about man’s “inalienable rights,” which would have to be distilled from experience, reason, and justice.
With this mindset, the notion that any particular moment’s conception of rights should be taken as exhaustive would have seemed patently wrong-headed to the Framers, just as it would have seemed wrong-headed to them for anyone to assume that their knowledge of the human body or of the universe should be taken as final and conclusive. Such a conception was antithetical to the very core of Enlightenment thought and to everything the Framers stood for.
They were not timid men. They were bold. As the Harvard historian Bernard Bailyn has observed, they knew full well that the rights they had identified did not “exhaust the great treasury of human rights.” They knew that their understanding of these freedoms “marked out the minimum not the maximum boundaries” of man’s inalienable rights. The “preservation of liberty,” they knew, “would continue to be what it had been in the past, a bitter struggle with adversity,” which would demand constant vigilance both to protect the rights they had recognized and to be alert to the recognition of new rights yet to be discovered.
The narrow, frightened originalism of Clarence Thomas and Antonin Scalia would have seemed absurd to the Framers. As a constitutional methodology, it not only invites the manipulative and result-oriented use of history, but it also and more fundamentally denies the true original understanding of the Framers of our Constitution.
This brings me to third conservative methodology – “conservative activism,” which sounds like an oxymoron, as it should. But it is in fact the dominant form of jurisprudence on the Supreme Court today. It is conservative activism that explains the Court’s decisions invalidating regulations of commercial advertising, invalidating campaign finance regulations, invalidating affirmative action programs, invalidating the use of race to promote integration, invalidating zoning laws, invalidating laws prohibiting the Boy Scouts from discriminating against gays and lesbians, and invalidating federal laws dealing with the environment, handguns, domestic violence, and age discrimination.
Conservative activism offers the worst of both worlds. It undermines the decisions of democratic majorities, not in order to protect the rights of minorities, or the powerless, or the oppressed, or the disenfranchised, or the dispossessed, or the poor, or the downtrodden, or the accused, but in order to protect the interests of corporations, the wealthy, the privileged, the majority, and the powerful. Like the Lochner era of which it is the constitutional and moral descendent, modern-day conservative judicial activism is a perversion of the values that the Constitution was designed to protect and, more specifically, of the values the Framers relied upon the Court to protect.
The sixth post in the series will be published on Thursday. Prior posts may be found here: first, second, third, fourth.
Written By:Hans Bader On November 16, 2007 11:47 AM Written By:Steven Glazer On November 27, 2007 12:56 PM
"Originalism" contradicts the Ninth Amendment to the Constitution: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." This point was made by Justice Goldberg in his concurring opinion in Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (Goldberg, J, concurring). As he said, "To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment . . . ." Clearly, the Framers of the Constitution bestowed upon the Courts a duty to identify and define those unenumerated rights.
There is nothing "activist" about court rulings "invalidating affirmative action programs," as Professor Stone claims.
Such rulings are dictated by the explicit, specific language of the civil rights statutes, not just conservative theories of originalism.
The 1964 Civil Rights Act expressly rejects race-based affirmative action in student assignment, and rejects the notion that affirmative action programs that use race are merely a means of "desegregation."
Title VI of the 1964 Civil Rights Act flatly and explicitly bans using race or color in student assignment or admissions, without listing any "affirmative action" exception.
And Section 401 of the Civil Rights Act expressly says that “desegregation” has nothing to with remedying “racial imbalance” or using race to achieve racial balance, but rather involves “assignment” of students to schools “without regard” to their race.
It declares that:
“‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.”
Thus, the Supreme Court has stated that “racial balance is not to be achieved for its own sake” in Freeman v. Pitts (1992), and that “racial balancing” is “patently unconstitutional” in Grutter v. Bollinger (2003).
The plaintiffs in the recent Seattle ruling by the Supreme Court striking down race-based student assignment rightly sought the same thing that the plaintiffs sought in the celebrated Brown v. Board of Education case: the right to attend their preferred school without being excluded on the basis of race.
The complaint of Linda Brown, the Topeka elementary-school student who gave the Brown decision its name, was that she was barred from attending her neighborhood school and forced to attend a distant school because of her race.
Thus, the Supreme Court was right to strike down the Seattle School District’s use of race.
Professor Stone may view this as being a "conservative" position, and thanks to the politically-correct rot of contemporary liberalism, it now doubt appears to be so.
But once upon a time, before the advent of narrow-minded political correctness, even many liberal judges opposed race-based affirmative action, as Justice Stanley Mosk, the longest-serving liberal California Supreme Court justice, did in the Bakke case.
The voters of California consistently re-elected Mosk to the state's supreme court. But by wide margins, they removed Mosk's politically-correct colleagues, Rose Bird and Cruz Reynoso, who voted in favor of race-based affirmative action and racial preferences.
And the voters of that relatively liberal state later voted to ban race-based affirmative action in state government, through Proposition 209, which was duly upheld by the federal courts.
Opposing affirmative action isn't a conservative position. Plenty of moderates (and even some liberals) oppose affirmative action, as voters in California and Michigan (both "blue states" that voted to ban affirmative action) showed.
By contrast, extreme leftists do tend to support race-based affirmative action.