“Fundamentalist Constitutionalism”: Punctuation Marks, Antonin Scalia, And The Farce Of “Originalism”
I have no idea whether Supreme Court Justice Antonin Scalia is heading to the beach this summer now that he has made America safe for religious employers to discriminate against their female employees. Nor do I have any idea whether Danielle Allen’s new book “Our Declaration: A Reading of the Declaration of Independence in Defense of Equality” is on his beach-reading list. But it should be.
You have probably heard about the book and its assertion that there is a significant typo smack in the middle of the Declaration’s most famous part. We read the phrase “life, liberty and the pursuit of happiness” with a “.” at the end. It’s not there in the original, according to Prof. Allen. It was added in later versions, as a mistake or perhaps even as a small spot of errant ink. The result, Allen asserts, is a dramatically different meaning to the entire document.
Historians will debate the conclusions Allen has drawn from her detective work, but those conclusions aren’t the reason Scalia ought to read the book. Rather, it is that starting premise about the punctuation that should give him pause (I know, it won’t) because it succinctly puts the lie to the entire enterprise of Constitutional “originalism” upon which Scalia has built his career.
Originalism, briefly put, is a jurisprudence resting on the following wobbly assumptions: the Constitution only has one meaning; that meaning can be known without ambiguity (by those smart enough to read it); all laws ought to be judged against that singular, unchanging meaning. Not too long ago originalism resided on the lunatic fringe of legal thinking, sort of like Ayn Randian economics. Over the last generation it has entered the mainstream, sort of like Ayn Randian economics, and no one has been more responsible for that than Antonin Scalia.
Opponents of originalism have often argued instead that the Constitution needs to be a “living” document, adaptable to a changing society. That view became prominent a century ago as legal thinkers, among them Woodrow Wilson and Oliver Wendell Holmes, tried to reckon with a rapidly changing industrial society. And to these Scalia and his comrades have said that the Constitution is resolutely dead and should be read historically, not in light of contemporary society.
But as the business of the pesky punctuation in the Declaration of Independence reminds us, words can mean different things and can be read in different ways. and even small changes in a sentence can yield different ideas. We know what Hamlet’s “To be or not to be” soliloquy says, but any high school junior can tell you that it might have any of several meanings. Or all of them. Or none of them.
Pretending that reading a document like the Constitution is a simple, transparent and an entirely objective and neutral task is naïve at best, intellectually dishonest at worst. All acts of reading are necessarily acts of interpretation, and as a consequence there are no objective truths nor single meanings. The most we can do is achieve a best consensus, recognizing that it might change in the future.
Scalia knows all of this, I suspect. I don’t think even in his extraordinary arrogance and self-regard he believes he can know exactly and perfectly what was in the minds of all the delegates who wrote the Constitution. And indeed, whatever one thinks of Scalia as a jurist, his track-record as a historian is shoddy, filled with cherry-picked examples, incomplete understandings and downright risible conclusions. The history Scalia presented as part of his majority opinion in District of Columbia v. Heller wouldn’t pass muster in my undergraduate seminar.
Scalia’s real goal in promoting “originalism” is to remove Constitutional issues from the realm of political debate altogether and treat them instead as theological dogma.
“Originalists” like Scalia read the Constitution in much the same way that fundamentalist Christians read the Bible. In the world of those conservative Christians, the Bible says what it says, there is no room for any interpretation of it, and the Bible is inerrant. In fact, we might coin a new term, “fundamentalist Constitutionalists,” since there is now a small but growing number of people convinced that the Constitution, like the Bible, may have been written by men but was actually inspired by God.
While this kind of reading may be intellectually indefensible – or downright silly – it does have the advantage of bestowing extraordinary power on those who can claim to possess The Truth, whether huckstering evangelical, tyrannical bishop, or snarky Supreme Court justice.
Ironically, of course, we will look back on “originalism,” or “fundamentalist Constitutionalism,” as being entirely of its political and cultural moment. One hundred years from now, we will see it as engineered by revanchists like Scalia who recoiled at the dramatic social changes of the recent past – civil rights, feminism, gay rights, and more – and thought they could use the Constitution to retreat into a past largely of their own invention. Future scholars might even debate what, exactly, Antonin Scalia meant as they parse his body of writing, and might find that his very words could be subject to multiple readings. That would be the final, most delicious and fitting irony for “originalism.”
By: Steven Conn, Author/Professor, Ohio State; The Huffington Post Blog, July 7, 2014
“The GOP Is Not Trying To Change”: The Direction The Republican Party Is Headed Is Destined For Political Ruin
John Harwood has an article in today’s New York Times with the headline: Shut Out of White House, G.O.P. Looks to Democrats of 1992. What’s not clear is whom the headline writer means by G.O.P. As best as I can tell, the subject here isn’t any of the likely candidates or any kind of consensus from the party base. It’s these people:
“A lot of work to do,” said Kate O’Beirne, a veteran conservative commentator. Pete Wehner, who was an aide to President George W. Bush, fears that Republican gains expected in the midterm elections this fall will offer another “false dawn,” as they did in 2010.
Kate O’Beirne and Peter Wehner are not representative of the Republican Party. They are Washington insiders who are well paid to spin the party’s message. But they aren’t so much spinning at the moment as hoping for a miracle.
A nominee’s power to recast the party’s image on high-profile issues offers a safety valve for Republicans in 2016, whatever they do now on immigration or other issues. At least, they hope so.
As Ms. O’Beirne, the conservative commentator, observed hopefully, “A talented politician can turn things around pretty handily, right?”
Mr. Wehner and Ms. O’Beirne are in no way representative of their party, but they are both savvy political observers who realize that the direction the Republican Party is headed is destined for political ruin. Their salvation idea is that a candidate will win the nomination and then turn sharply to the middle, thereby bringing the party faithful back to positions that have national viability.
A parallel is offered by Harwood:
But Mr. Clinton, then governor of Arkansas, used discretion in targeting Democratic constituencies such as labor unions. He embraced ratification of the North American Free Trade Agreement, for instance — but not until he had secured the Democratic nomination.
So, what we are supposed to expect is a Republican nominee who embraces gay marriage and immigration reform, but not until they have secured the Republican nomination. The thing is, this is a seemingly impossible task. To pull it off, the GOP would need to find a candidate like Dwight D. Eisenhower who could be embraced for reasons entirely separated from political ideology. A consensus bipartisan national hero could conceivably win the Republican nomination and then feel free to forge a completely independent stance on the issues, resulting in a remolded party that isn’t wedded 100% to the conservative movement, particularly on social issues.
It’s a pleasant thought, even for Democrats, but there are no Eisenhowers in contemporary American culture. In 2012, we saw a version of what Wehner and O’Beirne are looking for in the candidacy of former Utah governor and ambassador to China, Jon Huntsman. In the end, Huntsman earned two delegates to the Republican National Convention and .04 percent of the primary vote.
So far, the only evidence that any entity that can be termed the “GOP” is looking to emulate the 1992 Democrats led by Clinton and the Democratic Leadership Council is the autopsy report that RNC Chairman Reince Priebus solicited after the 2012 election. That report said that Republicans must pass comprehensive immigration reform and embrace gay equality or they’ll be unable to even get a hearing from young voters or Latinos. Assuming that analysis was valid, and I think it was, there has been little progress so far and there are no reasons to think that a nominee running on those issues would have snowball’s chance in hell of winning the Republican nomination.
The only sign of heterodoxy I can detect is Rand Paul’s uneven willingness to buck the status quo on foreign policy, privacy rights, and voting rights. But let’s not forget that Rand Paul is on the record as believing that the Civil Rights Act of 1964 is unconstitutional because it forces private businessmen to serve blacks in their restaurants.
That’s not exactly a Sister Souljah moment. And I don’t think dissing Sister Souljah was key to Clinton’s success in any case.
By: Martin Longman, Washington Monthly Political Animal, July 5, 2014
“June Is GOP Throwback Month”: Republicans Are Not Trying Very Hard To Escape Their Past
The right has long seemed stuck in the 1980s, ever basking in Ronald Reagan’s warm glow and policy solutions. This month it seems conservatives have decided to switch things up and temporally relocate themselves to the 2000s, if just for a little while.
So a giant squirrel is following former Secretary of State Hillary Clinton around the country on her book tour. Seriously. The Republican National Committee has dispatched someone in a bright orange squirrel costume to appear at her book events. The costume, Mother Jones reported this week, is left over from a similar 2008 publicity stunt in which the party used the squirrel to illustrate its concerns about ACORN, the now-defunct voter mobilization group. There was a logic to it then – squirrels and acorns – but now it’s as if someone at the RNC was cleaning out a closet, came across the squirrel suit and thought to themselves: Well, we can’t let this beauty go to waste. So the squirrel now wears a T-shirt which reads, “Another Clinton in the White House is Nuts.”
That sentiment neatly channels one of the early, sanctimonious premises of the George W. Bush presidency – the idea of Clinton fatigue, that the country didn’t want any more of the 42nd president, that “America wants somebody to restore honor and dignity to the White House,” as Bush put it while campaigning for the office. That somebody at the RNC thinks describing a return to Clintonism as “nuts” indicates that that particular delusion hasn’t been dislodged in the intervening 14 years. Remember that when he left office Bill Clinton enjoyed a 66 percent approval rating, according to Gallup. And just this week a Wall Street Journal/NBC News/Annenberg poll found that he is easily the most admired president of the last quarter century, with 42 percent of respondents naming him the most admired chief executive in that time. That’s light-years ahead of President Barack Obama (18 percent), the Bush who succeeded Clinton (17) and the one who preceded him (16). Peace and prosperity will do that for you.
Of course the Bush presidency reoriented itself after 9/11, and we’re getting a flashback of those years as well, thanks to the collapse of the Iraqi armed forces in the face of the jihadist Islamic State of Iraq and the Levant (an al-Qaida splinter group) and the civil war in Syria. So the whole neocon cast that devised the original Iraq fiasco have crawled out of the GOP memory hole apparently intent on proving the old Karl Marx-ism that history repeats itself first as tragedy then as farce. “This is about preventing another 9/11,” former Deputy Defense Secretary Paul Wolfowitz said on MSNBC this week, having updated his talking points not a wit from the first time he advocated sending armed forces into Iraq. Writing on The Weekly Standard’s website, Fred Kagan and Bill Kristol argue for air strikes and ground troops as “the only chance we have to persuade Iraq’s Sunni Arabs that they have an alternative to joining up with” al-Qaida or facing government death squads. Truly nothing persuades people of our benevolent intentions like bombing and invading their country. We’ll be greeted as liberators – just like we were the first time, right?
But the award for abject lack of self-awareness goes to former Vice President Dick Cheney, who wrote with his daughter in The Wall Street Journal this week: “Rarely has a U.S. president been so wrong about so much at the expense of so many.”
Meanwhile back in the original Bush country – Texas – the 43d president’s gubernatorial successor this month channeled one of the uglier aspects of the 2004 presidential campaign, shameless gay-bashing. Recall the role played in the Bush re-election campaign of riling up the social right with state level campaigns against gay marriage. Speaking in San Francisco last week, Texas Gov. Rick Perry compared homosexuality with alcoholism, saying that both afflictions can be resisted with a sufficient amount of will power. This sort of noxious comparison might have been unremarkable a decade ago, but times have changed and rapidly, with polls now showing majorities of Americans favoring marriage equality, for example. In 2014 it draws rebukes like this one, from CNBC host Joe Kernen: “I don’t think gay marriage leads to cirrhosis of the liver or domestic violence or DWIs.” Yeah, there is that.
Perry seems to have gotten the message, telling reporters at a press lunch on Thursday that he – and the GOP in general – shouldn’t get “deflected” onto social issues like the nature of homosexuality. “I stepped right in it,” he said.
Adjusting to rapid change can be hard, doubly so for conservatives whose ideology inherently resists it. Perhaps the best recent example of that emerged this week from North Carolina. State House Speaker Thom Tillis, the GOP Senate nominee, told “Carolina Business Review” in 2012 (the interview was ferreted out this week by Talking Points Memo) that “the traditional population of North Carolina and the United States is more or less stable. It’s not growing. The African-American population is roughly growing but the Hispanic population and the other immigrant populations are growing in significant numbers. We’ve got to resonate with those voters.” When asked whether Tillis was characterizing whites as the state’s and the country’s “traditional population,” his spokesman said no, that he was merely referring to “people who have been in North Carolina for a long time.” This is transparent nonsense. He contrasted the “traditional” population with, among others, the African-American population, which I’m fairly certain has been in the Tar Heel State for some time now.
But take a step back and look past the offensive content: Tillis was answering a question about his party’s inability to appeal to minorities, so when he talked about non-“traditional” voters he was doing so in the context of wanting to “resonate” with them. If this is the right’s idea of reaching out, it’s going to be a long decade for them – no wonder they’re trying to C.
By: Robert Schlesinger, U. S. News and World Report, June 23, 2014
“Moses, Jesus And Louie”: The Confessing Church Of The Christian Right
Another day, another Louie Gohmert outrage, and another use of Nazi analogies by a Christian Right pol. Nothing to see here, right?
Well, there is one thing I’d like to point out in the context of Gohmert taking to the House floor to complain that gay rights advocates are behaving like Nazis in calling him and people like him “haters” (as reported by TPM’s Tom Kludt). Yes, part of the reason Christian Right types like to use Nazi analogies is that they seem so very apt to those who believe or claim to believe zygotes are exactly like you and me, and thus that legalized abortion (or even post-fertilization forms of birth control) represents a “Holocaust” unlike anything the world has seen since Hitler. But Gohmert’s Nazification of the argument over same-sex marriage puts the spotlight less on his tormenters than on himself and other brave defenders of traditional marriage.
It is amazing that in the name of liberality, in the name of being tolerant, this fascist intolerance has arisen. People that stand up and say, you know, I agree with the majority of Americans, I agree with Moses and Jesus that marriage was a man and a woman, now all of a sudden, people like me are considered haters, hate mongers, evil, which really is exactly what we’ve seen throughout our history as going back to the days of the Nazi takeover in Europe. What did they do? First, they would call people “haters” and “evil” and build up disdain for those people who held those opinions or religious views or religious heritage. And then the next came, well, those people are so evil and hateful, let’s bring every book that they’ve written or has to do with them and let’s start burning the books, because we can’t tolerate their intolerance.
Not even Gohmert is dumb enough to call marriage equality advocates “Nazis,” given, among other things, the murderous behavior of the actual Nazis towards gay people (they also violently opposed abortion, at least among Aryans, but that’s another matter). But what he really wants to do is to claim the mantle of the Confessing Church Christians who opposed the Nazis (hardly anything like a majority of Christians in Germany, BTW, particularly in the case of conservative Christians) out of fidelity to their faith.
This is an old habit in the Christian Right, and an ideal way to turn the tables and pose as conscience-wracked Here-I-Stand dissenters against power instead of defenders of patriarchy and privilege, and with them the enormous power of the status quo ante (or what Chesterton once called “the democracy of the dead”), a power that’s ruled daily life for millennia. Standing up for “your principles” is a lot more attractive than standing up for the day-before-yesterday and oppressing anyone who gets uppity. So of course you want to go there again and again, and if you are Louie Gohmert, why not? Nobody but those guilty of “fascist intolerance” will object.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, May 9, 2014
“Can Liberals Trust John Roberts To Rescue Obamacare Again?”: A Pro-Hobby Lobby Ruling Would Be His Most Radical Decision
Most Supreme Court watchers are fixated these days on Sebelius v. Hobby Lobby—the important challenge to the Affordable Care Act’s contraception mandate scheduled for argument Tuesday. And why wouldn’t they be? With its potent mix of religion, sex, Obamacare, and prayerful corporations, it’s the blockbuster case of the term. It is also a crucial test of Chief Justice John Roberts’s leadership on the Supreme Court.
Just two years ago, Roberts cast the deciding vote to largely uphold the Affordable Care Act. While the country remains divided over whether he acted like a traitor or a statesman, all would have to agree that, given the level of public scrutiny on the Court and the case’s overall importance (both substantively and to the President’s legacy), Roberts’s ACA vote was the defining moment of his tenure thus far. In a bold move, he broke ranks with his conservative colleagues, joined with the Court’s progressive wing, and preserved the President’s signature achievement. In Hobby Lobby, Roberts meets the ACA yet again, and the stakes for his reputation—and that of his Court—couldn’t be higher.
Chief Justice Roberts has often spoken about how important it is for the justices to maintain the legitimacy of the Court—by limiting divisive rulings, moving the law incrementally, and trying to stay above politics. For instance, in an interview with Jeffrey Rosen early in his tenure as chief justice, Roberts explained that the Court is “ripe for a … refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy.” Expressing admiration for the great Chief Justice John Marshall, Roberts added that, even as a committed Federalist, Marshall preferred to move the law “in a way that … wasn’t going to alienate people on the Court and turn the Court into another battleground.” While commentators certainly quibble over just how radical an effect John Roberts has had on the law—even Justice Antonin Scalia once attacked the chief justice’s approach in a pre-Citizens United campaign finance case as “faux judicial restraint”—there’s little question that Roberts himself prefers the image of the modest jurist to that of judge-as-hero (think Earl Warren) or judge-as-prophet (think Scalia).
He cultivated this image most dramatically in the first ACA case, joining with his progressive colleagues to uphold a Democratic president’s most important achievement—and in the middle of an election year, no less. Furthermore, just last term, the Roberts Court managed to reach an unlikely compromise in a blockbuster affirmative action case, and Roberts himself preserved the marriage-equality status quo in California with his majority opinion in Hollingsworth v. Perry. However, even in areas where Roberts has pushed the law dramatically to the right (like voting rights), he has tended to prefer a slower-moving, more incremental approach than his more radical colleagues, with seismic shifts (like Shelby County v. Holder) coming only after the political ground has already been prepared with previous, more modest decisions (like NAMUDNO v. Holder)—legal warning shots, if you will. He has also chipped away at progressive laws in a series of low-profile cases—for instance, those on the Court’s business docket. This strategy allows him to move the law to the right, while also preserving the institutional legitimacy of the Court.
Through this lens, Hobby Lobby presents a potential dilemma for the savvy Chief Justice. In the case, Hobby Lobby, a craft-store chain owned by Southern Baptists, is suing the government to seek religious exemption from the ACA’s requirement that it offer insurance plans to employees that cover contraception at no extra cost. On the one hand, Roberts is confronting the ACA for the first time since the conservative firestorm over his decision largely upholding the Act. There’s little doubt that he’ll be tempted to throw conservatives a bone, siding with Hobby Lobby and against the ACA.
On the other hand, a vote in favor of Hobby Lobby requires the chief justice to do at least three things that threaten major disruptive consequences and present serious downstream risks for the Court as an institution. First, he must conclude that corporations have the same rights to religious freedom as living, breathing humans—something that the Supreme Court has never done. Second, he must unsettle centuries of well-established corporate law practice—a move at loggerheads with the Roberts Court’s (and John Roberts’s own) pro-corporate leanings. And, third, he must extend unprecedented protections to a secular employer, therefore opening the floodgates to new religious freedom challenges to countless other laws. In short, a vote for Hobby Lobby means endorsing a radical departure from well-settled precedent—perhaps nowhere more strikingly than in the realm of religious freedom.
In the decades leading up to the Supreme Court’s 1990 landmark decision in Employment Division v. Smith, courts heard many free exercise challenges. For the most part, they followed a familiar pattern: A law applied to everyone in a given jurisdiction; someone came to court and claimed a religious objection to that law; and the court ultimately rejected that challenger’s claim. This was true in the Supreme Court and, as explained by Professor James Ryan, it was also true in the lower courts. The bottom line—whether you were an Amish employer refusing to pay Social Security taxes or an army doctor wishing to wear a yarmulke while on duty, you were probably going to lose your free exercise claim.
Then along came Smith—a free exercise decision that hit the legal and political world like a thunderbolt. The case involved Native Americans dismissed from their jobs for failing a drug test. (They had smoked peyote during a religious ceremony.) Because of this drug use—religiously motivated or not—Oregon then denied them unemployment benefits. When they challenged this action on free exercise grounds, the Court rejected their claim. However, rather than simply applying the Court’s traditional balancing test (where the Court weighed a given law’s burden on religion against the governmental interest advanced by the law), Justice Scalia struck a radical pose, shelving it for a bright-line rule that was even less protective of religious objectors—and hence the controversy.
Of course, under the pre-Smith test, religious objectors were already losing these cases. Following Smith, they were only slightly more likely to do so. Nevertheless, Congress responded to Scalia’s decision by enacting a new law explicitly overturning Smith and restoring the pre-Smith status quo, but all that really did was reestablish an environment where free exercise claims rarely succeeded.
Given this legal backdrop, the key question for Roberts leading up to the Hobby Lobby argument is whether he’ll stick with this traditional approach or adopt a new, more stringent test—one even stricter than anything that existed in the pre-Smith world. If the chief justice takes the more radical path—and, more importantly, if he convinces at least four of his colleagues to go along with him—Hobby Lobby could, indeed, live up to the hype and become a truly revolutionary case.
For instance, such a ruling would entangle lower courts and the Roberts Court itself in knotty free exercise challenges (and a lot of them)—challenges that would potentially require judges to define what counts as “religious belief,” assess the sincerity of those beliefs that pass muster, and apply the traditional balancing test with serious bite. Courts have balked at going down this path in the past—and for good reason. Furthermore, the Supreme Court has never granted a religious accommodation to a secular business that comes at the expense of its employees—an unprecedented move that would allow secular employers to effectively impose their own religious views on the employees, even in the face of contrary laws.
In the end, however tempted Chief Justice Roberts may be to strike a blow to Obamacare in this highly publicized, blockbuster case—and however much his conservative colleagues may be pulling him in that direction—Roberts can’t give in to these pressures without tarnishing his carefully cultivated image as a cautious jurist and, in the process, unleashing a wave of unpredictable (and risky) consequences.
By: Tom Donnelly, Counsel at Constitutional Accountability Center; The New Republic, March 24, 2014
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