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“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

 

 

July 8, 2014 Posted by | Antonin Scalia, Constitution, Declaration Of Independence | , , , , , , | Leave a comment

The Fake James Madison: Conservatives Selective Reading Of The Founding Fathers Threatens Social Security And Medicare

The House Republican plan to phase out Medicare is crashing and burning. Rep.-elect Kathy Hochul (D-NY) just won an impossible election victory by campaigning to keep Medicare alive. The Senate just soundly rejected the House GOP’s plan. Even former Speaker of the House Newt Gingrich, who once shut down the government in a failed attempt to force President Bill Clinton to support draconian Medicare cuts, blasted this Medicare-killing plan as “radical right-wing social engineering.”

Yet even as this concerted assault on Medicare hemorrhages support from elected officials, conservatives have a backdoor plan to get the courts to kill Medicare for them. Numerous lawmakers embrace a discredited theory of the Constitution that would not only end Medicare outright but also cause countless other cherished programs to be declared unconstitutional. Under this theory, Pell Grants, federal student loans, food stamps, federal disaster relief, Medicaid, income assistance for the poor, and even Social Security must all be eliminated as offensive to the Constitution.

In essence, supporters of this constitutional theory would so completely rewrite America’s social contract that they make Rep. Paul Ryan (R-WI), the author of the House GOP plan, look like Martin Luther King Jr. This issue brief explores the legal and historical gymnastics required to accept the conservative position that programs like Medicare and Social Security violate the Constitution.

The general welfare

Although Congress’s authority is limited to an itemized list of powers contained in the text of the Constitution itself, these powers are quite sweeping. They include the authority to regulate the national economy, build a national postal system, create comprehensive immigration and intellectual property regulation, maintain a military, and raise and spend money.

This last power, the authority to raise and spend money, is among Congress’s broadest powers. Under the Constitution, national leaders are free to spend money in any way they choose so long as they do so to “provide for the common defense and general welfare of the United States.”  For this reason, laws such as Medicare and Social Security are obviously constitutional because they both raise and spend money to the benefit of all Americans upon their retirement.

Many members of Congress, however, do not believe the Constitution’s words mean what they say they mean. Consider the words of Sen. Rand Paul (R-KY), who recently explained the origin of the increasingly common belief that Congress’s constitutional spending power is so small that it can be drowned in a bathtub:

If you read [James] Madison, Madison will tell you what he thought of the Welfare Clause. He said, “Yeah, there is a General Welfare Clause, but if we meant that you can do anything, why would we have listed the enumerated powers?” Really, the Welfare Clause is bound by the enumerated powers that we gave the federal government.

In essence, Paul and many of his fellow conservatives believe Congress’s power to collect taxes and “provide for the common defense and general welfare of the United States” really only enables Congress to build post offices or fund wars or take other actions expressly authorized by some other part of the Constitution. According to this view, the spending power is not—as it is almost universally understood —itself an independent enumerated power authorizing Congress to spend money.

Paul’s understanding of the Spending Clause is not simply the idiosyncratic view of an outlier senator. Indeed, there is strong reason to believe his view is shared by the majority of his caucus. In the lead-up to the 2010 midterm elections, congressional Republicans released a “Pledge to America,” which broadly outlined their plans for governing if they were to prevail that November.  In it, the lawmakers claimed that “lack of respect for the clear constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year.”

This language suggests that many conservatives agree with Sen. Paul that Congress is somehow exceeding its constitutional authority to spend money. But there is no support for this view in constitutional text or in Supreme Court precedent.

In its very first decision to consider the issue—its 1936 decision in United States v. Butler—the Supreme Court unanimously affirmed that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution,” as Sen. Paul would claim.  Similarly, while the text of the Constitution establishes that “the exercise of the spending power must be in pursuit of ‘the general welfare,’” neither Sen. Paul nor the Pledge cites examples of laws that fail to meet this criterion.

Selectively reading Madison

While conservatives’ narrow understanding of the spending power finds no support in the text of the Constitution or in the Supreme Court’s decisions, Sen. Paul is correct that it does have one very famous supporter. In an 1831 missive, former President James Madison claimed that the best way to read the Spending Clause is to ignore its literal meaning and impose an extra-textual limit on Congressional power:

With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

Sen. Paul suggests that Madison’s extra-textual limit is both authoritative and binding—even if it means that programs ranging from Social Security to Medicare to Pell Grants must all cease to exist. But it is a mistake to assume that Madison’s preferred construction of the Spending Clause must restrict modern-day congressional action.

First of all, even the most prominent supporters of “originalism”—the belief that the Constitution must be read exactly as it was understood at the time it was written—reject the view that an individual framer’s intentions can change constitutional meaning. As the nation’s leading originalist, Supreme Court Justice Antonin Scalia, explains, “I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”

Indeed, Madison himself would have been dismayed by the claim that an established understanding of the Constitution must bend to his own singular views. Like Scalia, Madison rejected the notion that the framers’ personal desires can defeat the words they actually committed to text. As he explained to future President Martin Van Buren, “I am aware that the document must speak for itself, and that that intention cannot be substituted for [the intention derived through] the established rules of interpretation.”

Secondly, Madison embraced a way of interpreting the Constitution reminiscent of the evolving theories of constitutional interpretation that are so widely decried by modern conservatives. Although Rep. Madison opposed on constitutional grounds the creation of the First Bank of the United States in 1791, President Madison signed into law an act creating the Second Bank in 1816. He “recognized that Congress, the President, the Supreme Court, and (most important, by failing to use their amending power) the American people had for two decades accepted” the First Bank, and he viewed this acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”

The Constitution is not a scavenger hunt

Even if we must, as Sen. Paul suggests, be bound by the Founding Fathers’ subjective intentions, Madison’s understanding of the Constitution hardly reflects the consensus view among those who created it. The truth is that Madison’s voice was merely one of many competing voices among the founding generation—and his vision of the Constitution was eventually rejected by no less a figure than George Washington himself.

Madison’s chief antagonist in early debates about constitutional meaning was Alexander Hamilton. As the nation’s first secretary of the treasury, Hamilton offered an interpretation of the Spending Clause that closely resembles the modern understanding:

These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

Hamilton’s understanding of the spending power was one part of a broader, more expansive vision of congressional power that also included a robust interpretation of Congress’s power under the Constitution’s Necessary and Proper Clause.  This broader understanding of Congress’s role prevailed over Madison’s very limited one during the earliest days of the Republic. Hamilton was the chief advocate who convinced President George Washington to sign the First Bank bill over Madison’s objections.

The point here is not that constitutional interpretations should be played like the card game “War,” where conservatives play the Madison card and everyone else plays the Washington card, and whoever plays the higher card wins. Rather, the point is simply that conservatives are wrong to treat the Founding Fathers’ statements as if they were a menu that lawmakers can search through and order the kind of Constitution they want. The Constitution is not a scavenger hunt.

Moreover, it is hardly necessary to dismiss Madison’s tremendous contributions to the Constitution itself in order to recognize why America should not relitigate a 230-year-old argument about America’s power to spend money on programs like Medicare.  Hamilton was undoubtedly correct that his own reading of the Spending Clause is more consistent with the Constitution’s text than the reading offered by Madison—Madison himself concedes as much—but Madison was also correct to warn that the nation rejects a longstanding and widely accepted constitutional interpretation at its peril.

Millions of Americans depend upon programs such as Social Security, Medicare, and federal student loans, and America has grown into the wealthiest and most prosperous nation ever to exist in the years since these programs were enacted. Throughout this golden age, not one Supreme Court justice has questioned what Justice Scalia recently told a gathering of members of Congress: “It’s up to Congress how you want to appropriate, basically.”

Conclusion

Few things are certain in American politics, but after this week one thing is crystal clear—the American people cherish Medicare and they want no truck with an agenda that would destroy it. Sadly, far too many conservative lawmakers refuse to listen to their constituents on this basic and obvious point—to the extent of inventing a theory of constitutional interpretation that would achieve their goal of ending Medicare far sooner than the House Republicans’ ill-considered budget.

Conservatives will tell you that killing Medicare is the only way to read the Constitution consistently with the framers’ intent. Don’t believe them. The truth is that the only way to reach this conclusion is to hunt through the framers’ statements, cherry pick statements that conservatives like, and ignore the very text of the Constitution itself in the process.

 

By: Ian Millhiser, Center for American Progress, May 27, 2011

May 27, 2011 Posted by | Congress, Conservatives, Constitution, Democracy, GOP, Government, Government Shut Down, Health Care, Ideologues, Ideology, Lawmakers, Medicare, Politics, Republicans, Right Wing, Supreme Court, Taxes | , , , , , , , , , , , , , , | Leave a comment

   

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