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By, James S. Eggert, Esq. | 3 July 2022
Thanks for your thoughtful and carefully reasoned essay.
I disagree with your reasoning.
To address your ultimate point—the rising lawlessness of our nation—I believe that has already been in the works for many years precisely because of the lack of respect for the Law that “living Constitution” theorizing has engendered.
A “living Constitution” will always fall into abuse at the hands of judges, whose power, unbounded by any fixed principle, will inevitably be exercised in favor of their private preferences, which may or may not align with the “Will of the People.” Ironically, you seem to recognize the workability of originalism when you note that Alito is “right” in his reasoning, based on his informed judgment that abortion, at the time of Roe, was not deeply rooted in the nation’s history and traditions, a point that must be readily conceded by any reasonable person.
Yet it was the Court in 1973 that steered the nation off the rails of Constitutionalism (a term that I would prefer to “originalism”) by declaring such rights, ex nihilo, out of the majority’s own preferred outcome. Not that the rails hadn’t already been bent. Certainly, we can trace this type of derailing amongst various areas of Supreme Court jurisprudence back to the New Deal era and probably further if we took the effort (the Dred Scott case, for example). The temptation (and opportunity) to abandon Constitutionalism will always be with us.
The Framers of our republic left us a good legacy. At the Federal level, we have the Congress, imbued with Article 1 enumerated powers (only enumerated powers, not others). For the many reasons articulated in your piece, the Legislative power fails the People. Not only that, the legislative power of the several states is the true repository of political power, including the power of the people of the states to amend and design their own state Constitutions, fashioning their own standards for state constitutional rights, a liberty that numerous states have vigorously exercised and constitute to do so in our own day.
At the Federal level, they left us the legacy of a process for amending our Federal Constitution, a practice seemingly almost entirely forgotten (even spurned) in our own generation as well as in the rising ones. Who could imagine, for example, the majority of the Supreme Court of 1990 thinking that the Nineteenth Amendment was necessary, since “clearly” a woman’s right to vote was already instantiated in Substantive Due Process and incorporated to the states by the Fourteenth Amendment? The “New America” has seemingly come to expect the Supreme Court, nine unelected persons, to handle the nation’s Constitutional amendments for them.
From whence does this “New America” derive? I suggest it is born of Constitutional “worship.” You say it is the worship offered by the originalists who “insist that we remain forever anchored in the inerrant wisdom and foresight of the Framers.” But whereas “living constitutionalists” accuse originalists of overly reverencing the Constitution, reading its text strictly according to historical examples and original intent, it is in fact the “living constitutionalists” that are most to blame for the “New America.” It is they who worship the text of the Constitution, supposing that embedded therein lie eternal principles of justice and universal rights that can be divined from the dusty and ancient text only by Supreme Court Justices, the priests of the Constitution, alone worthy to read the entrails and proclaim to us out of their mystic wisdom those judicial oracles that must guide our own times.
The originalists see the Constitution for what it is: clunky and old, and filled with limitations, and maintaining that those limitations should be openly observed when reached so that the people can change their laws to reflect new or emerging values. Indeed, originalists see the Constitution as living because it is amendable. It must be, for such a document could never endure if forever fixed in the mode of 1789. That is not to say that there isn’t still a lot of 1789 left in us, but it must move and change in some respects to reflect the values of the people whom it governs. For if a people’s governing document no longer reflects their values, then they will understandably spurn it, and, as you fear, will reject Law. And lawlessness is a pernicious evil.
The Constitution is a document designed for a free people, a thinking and rational people, a people willing to be meaningfully engaged in their own political destiny, and to do so together against their competing interests and values, and with compromise and expediency. Behind our Constitution were revolutionists who dared to break away from what they considered tyrannical rule and jump together into the unknown. Perhaps it could be said that we will never be worthy of (or successful inside) the framework they have left for us unless we are willing to be like them, willing and able to be engaged as a people ever ready to frame their own government anew as the need arises, and educated enough in the art and science of politics to govern ourselves, or recognize those to whom such important work should be entrusted, and the manner of its entrustment. I suspect that our ineptness in this regard is our emerging problem, and I have no ready solution for it. Perhaps the “New America” is ungovernable except by tyranny. I hope not.
Your article seems to put the onus on the Court to change its philosophy, as if adopting the reasoning and methodology of Sotomayor, Kagan, and Katanji-Brown is the thing needed to hold our democracy together. I would encourage you to abandon this cynical and empty approach, as if the political solution for the country turns on the Supreme Court acting as the replacement for our ineffectual legislative branch, or that a descending lawlessness is to be placed at the Court’s feet because they refuse to act as the kind of legislature you would like and adhere to a judicial philosophy that maintains judges are only interpreters of the People’s Will expressed in written texts, not political priests.
On the subject of a court acting as a legislature, I will let Justice Scalia speak (from his dissent in Casey):
In truth, I am as distressed as the Court is—and expressed my distress several years ago, see Webster, 492 U.S., at 535—about the political pressure directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today’s opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls “reasoned judgment,” ante, at 7, which turns out to be nothing but philosophical predilection and moral intuition. All manner of “liberties,” the Court tells us, inhere in the Constitution and are enforceable by this Court—not just those mentioned in the text or established in the traditions of our society. Ante, at 5-6. Why even the Ninth Amendment—which says only that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, un-hinted-at rights, definable and enforceable by us, through “reasoned judgment.” Ante, at 6-7.
What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy, and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U. S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school—maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. Justice Blackmun not only regards this prospect with equanimity, he solicits it. Ante, at 22-23.
* * *
There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “It is the dimension” of authority, they say, to “call the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Ante, at 24.
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the luster of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court, and its soon to be played out consequences for the Nation—burning on his mind. I expect that two years earlier he, too, had thought himself “calling the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved—an issue involving life and death, freedom and subjugation—can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
You say, “Originalists seem to be possessed of the quasi-religious belief that anything short of total fidelity to the language and world view of the Eighteenth Century will take us down a slippery slope of relativism and lead to the complete breakdown of the Constitution as an institution. And so, as we move further and further from the language and world view of the Eighteenth Century, originalists like Justice Alito insist that we remain forever anchored in the inerrant wisdom and foresight of the Framers.”
But I think it is the “living constitutionalists” that are to blame for the growing lawlessness arising out of a sense that the Constitution should not be amended, but ever interpreted.