Constitutional Law Prof Blog

Justice Scalia, Originalism, and Life in the 21st Century

Earlier this week, Justice Scalia and Justice Breyer debated methods of constitutional interpretation before an audience in Tuscon, Arizona.  During the event, Justice Scalia accused some of his colleagues of "making up rights."  Justice Breyer, for his part, said that under Scalia's originalism, we will have a constitution, but "it won’t be a Constitution anyone will be able to live under.”

The event, while certainly noteworthy, drew additional attention because initial reports - later proven false- that Justice Scalia had remarked that due to his originalist beliefs, he would have dissented in Brown v. Board of Education.  Before the report was revised, the blogosphere began a discussion on the statement falsely attributed to Scalia.  In particular, Professor Jack Balkin took him to task.  After the report was corrected, Professor Balkin argued that even if Justice Scalia could find a way to stay faithful to originalism and still join the majority opinion in Brown, other cases - such as Loving and Bolling v. Sharpe - would also present problems. 

Professor Balkin has a point, but I'd actually take his argument and expand it further.  For while I think whether Justice Scalia would have decided Brown a certain way is an interesting question, I think the more fundamental inquiry is whether - and how - originalism can operate in the America of the twenty-first century. 

There are many modes of constitutional interpretation.  But originalism is unique in its certitude.  The mantra seems to be "If the framers didn't think it, it must be wrong."  But is this the case?  Are the framers always correct?  I think the answer to that must be "no."  The Framers drafted a document that preserved slavery, did not allow women to vote, and limited the participation of the populace in the election of the government. However, over the years, Americans have squarely rejected those beliefs.  In an article proposing a rejection of the electoral college, Professor Jamin B. Raskin states:

We have often replaced the handiwork of the Framers when their ambivalence towards democracy recurrently thwarted popular control over government. The Thirteenth, Fourteenth, and Fifteenth Amendments after the Civil War wiped out the original exclusionary assumptions of white supremacy in politics and government. We replaced the indirect method of electing United States Senators by state legislatures in 1913 with direct election “by the people” as provided for in the Seventeenth Amendment. The Nineteenth Amendment rejected the sexism of our Framers by writing women into the body politic. . . ¹

While the article is not about originalism, the point is well-taken.  The genius of the Founders was that they included a method for amending the Constitution.  However, if the American people decide to amend the Constitution, this decision should override the Founders' understanding of the document.  In other words, on those issues where the people have spoken, why shouldn't the understanding of the populace control, rather than that of the Founders?  One of the justifications for originalism - and one given by Justice Scalia in the recent debate - is that the Constitution will suffer if interpreted based on the whims of the populace.  But the Constitution cannot be amended on a mere whim.  A super-majority of Americans must agree to any amendment.  Therefore, particularly on the issues where the American people have given some indication of their thoughts on the matter, originalism seems to be a less appropriate interpretive method. 

Many, many law review articles have been written on originalism.  Indeed, the topic is broader than one can fully address and analyze in the limits of a blog posting.  But I am glad that Justice Scalia's comments were taken out of context.  Not for the embarrassment I am sure that came to those involved, but because it gives all of us an opportunity to revisit our ideas on constitutional interpretation.  In my opinion, that process can only be beneficial.

NLS

Translating Equality

Third Annual Distinguished Conversation at CUNY School of Law
TRANSLATING EQUALITY:  LANGUAGE, LAW & POETRY

A conversation between Professors
Jenny Rivera
&
Kimiko Hahn

Moderated by Professor Ruthann Robson

Friday, November 6, 2009
at 11 am

City University of New York School of Law

English only laws, accent discrimination, the relationship between language and national origin classifications, and the art of translation across languages, cultures, and academic disciplines are a few of the topics to be addressed in this interdisciplinary conversation.


Jenny Rivera is Professor of Law and Director of the Center on Latino and Latina Rights and Equality (CLORE) at CUNY School of Law. 
Her work has centered on a wide range of issues facing Latinos and Latinas, including language and gender discrimination and cultural barriers.   Former Law Clerk to Supreme Court Justice Sonia Sotomayor, Professor Rivera was a frequent public commentator during last summer’s confirmation process.

Kimiko Hahn is a poet and Distinguished Professor in the English department at Queens College/CUNY.  Her poetry collections include The Narrow Road to the Interior (W.W. Norton 2006) and The Artist’s Daughter (W.W. Norton 2002). As one biography phrases it, her work often explores "the intersections of conflicting identities. She frequently draws on, and even reinvents, classic forms and techniques used by women writers in Japan and China, including the zuihitsu, or pillow book, and nu shu, a nearly extinct script Chinese women used to correspond with one another."

Free and open to the public.  RSVP required: robson@mail.law.cuny.edu

RR

Full Ninth Circuit to Review Jeppesen, State Secrets ruling

A majority of participating judges on the Ninth Circuit voted yesterday to grant en banc review to Mohamed v. Jeppesen Dataplan, the three-judge panel ruling that rejected the Bush and Obama administrations' state secrets claim.  Six judges, including Judge Bybee, did not participate.

The plaintiff in the case filed his complaint against the private company Jeppesen Dataplan for its role in his extraordinary rendition by the CIA.  The Bush administration, and then the Obama administration, intervened and moved to dismiss the entire case on the complaint, claiming that the very subject matter of the case was a state secret.  A three-judge panel of the Ninth Circuit rejected the claim, and the Obama administration sought review by the full Ninth Circuit.  (I interviewed plaintiff's attorney Ben Wizner of the ACLU here.  I posted on the administration's changes to the state secrets privilege here.)

The panel decision put the Ninth Circuit at odds with an earlier Fourth Circuit ruling on state secrets in an extraordinary rendition case against the government.  In that case, El-Masri v. United States, the Fourth Circuit endorsed a sweeping state secrets privilege, and for the first time rooted the privilege in the Constitution (Article II and separation of powers principles).  (Earlier state secrets cases went so far as to dismiss on the pleadings, but the courts have treated state secrets merely as an evidentiary privilege, not a constitutional doctrine.)  The Ninth Circuit order raises the possibility that the full Ninth Circuit will also endorse this sweeping claim. 

SDS

Amicus Metzger Talks About Free Enterprise Fund

I spoke yesterday with Professor Gillian Metzger (Columbia) about her amicus brief in Free Enterprise Fund v. Public Co. Accounting Oversight Board, the case challenging Sarbanes-Oxley's new PCAOB, a body within the SEC, on Appointments Clause and separation of powers grounds.  I just posted yesterday on Metzger's article on internal and external separation of powers; we spoke about that, as well.  Finally, Metzger offered sound advice for academics contemplating filing amicus briefs.

I edited the interview into three parts; click the shaded blocks below:

The Case and Metzger's Brief

You can download this file and forward to the times below for discussions on particular topics:

:34 to 1:30 for a description and background on the case

1:30 to 4:10 for a discussion of the significant jurisdictional barriers in the case

4:23 to 8:00 for a discussion of the constitutional claims in the case

8:30 to 13:30 and 18:00 to 20:43 for a discussion of the significance of the case and the sweeping claims

13:30 to 15:40 for a discussion of Metzger's brief

15:40 to End for a discussion on how the Court might rule in the case

The Relevance of Internal and External Separation of Powers to Free Enterprise Fund

Advice for Academic Amici

SDS

 

Metzger on Internal and External Separation of Powers

Professor Gillian Metzger (Columbia) recently posted her thoughtful piece, The Interdependent Relationship Between Internal and External Separation of Powers, on SSRN.  The article explores the relationships between internal and external checks on the executive and starts an important conversation on how separation of powers doctrine might reinforce (not destabilize) internal checks.  The argument is a novel addition to the literature on executive constraints and separation of powers, and it couldn't come at a more propitious time--just over a month before the Court will hear arguments in Free Enterprise Fund v. Public Co. Accounting Oversight Board, challenging Sarbanes-Oxley's new PCAOB, a body within the SEC, on Appointments Clause and separation of powers grounds.  I highly recommend this.

Metzger sets her argument up against the Bush administration politicization of executive decisionmaking.  A possible lesson from the Bush administration, she writes, is that internal constraints--checks on the executive within the executive branch itself, such as independent agencies, inspectors general, and the civil service system itself--were ineffective checks on executive overreaching.  Gillian writes that that lesson, however, is "unduly pessimistic" and focuses too narrowly on internal constraints.

Instead, Metzger argues that we need more attention on connections between internal constraints and external constraints (those constraints on executive power imposed from the other branches) and separation of powers doctrine--how separation of powers considerations need not operate only to destabilize internal constraints, but how they might also operate to reinforce internal constraints.  Metzger: 

Notably, however, these [Appointments Clause] decisions generally treat internal constraints as given and focus their attention on determining if the specific constraints at issue represent constitutional violations because they intrude too far on presidential power.  Less common, particularly in recent decisions, is judicial recognition of the potential constitutional benefits from internal controls, either in terms of guarding against aggrandized power from within or in reinforcing the ability of the other branches to do so.

Example?  Metzger offers Boumediene v. Bush, an admittedly rare and special case:

[In Boumediene] the Court used its constitutional scrutiny to encourage the executive branch to adopt more robust internal constraints.  Although it seems fair to say this was an intentional move on the Court's part, at a minimum Boumediene demonstrates that the Court's lack of attention to the separation of powers benefits of internal constraints is not universal.  Yet Boumediene's express linkage of separation of powers doctrine and internal constraints remains a rarity, and reflects in part specific features of habeas jurisprudence, which has long required absence of adequate alternatives before a habeas claim will lie.

What might this look like outside of the special case of Boumediene?  Metzger shows there are several options:

Courts could, as in Boumediene, identify a fairly specific set of internal constraints as necessary to avoid a constitutional violation.  But they could also serve a reinforcing role simply by taking such constraints into account . . . as a factor that may support a finding of constitutionality or greater deference.  They could even continue to rely primarily on administrative law doctrine, both as a means of reinforcing internal checks and more directly policing against undue agency politicization, and simply acknowledge more openly the constitutional separation of powers function that administrative law is then performing.

The Court could take this bait in Free Enterprise Fund and hold that the new PCAOB is supported by separation of powers considerations, not destabilized by them.  Metzger and a colleague filed an amicus brief (pp. 24-28) in the case in which they gently push this argument. 

SDS