Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
An interesting conversation has begun on American Creation, where my friend Jon Rowe blogs along with several others from every side of the question of religion and the founding fathers (including frequent Dispatches commenter King of Ireland). The discussion is largely with Tom Van Dyke, who has commented here as well. The discussion is over conservative originalism in its various forms vs. the kind of liberal originalism (or more accurately original principle originalism) that I and others (Jack Balkin, Randy Barnett) advocate.
Let me give some of the background on this discussion so you can see how the discussion has developed so far. This is the partial text of a comment I had left in response to a post by King of Ireland:
One thing that needs to be made clear is that there are several distinct forms of originalism and you seem to conflate them a bit. There is original intent originalism, which Madison pretty explicitly rejects in the quote you offered. There is original public meaning originalism, which Madison seems to endorse. And there is original expected application originalism, which is mostly rejected even by advocates of originalism (though they almost always use rhetoric which flows from that premise without recognizing the contradiction).Then there is the kind of originalism advocated by people like me, Jack Balkin and Randy Barnett (though I have seen him claim not to advocate such a position, he clearly does in his writings). Barnett calls it liberal originalism, but that's probably not a good term because it will be confused with liberal political views. I would perhaps prefer to call it original principle originalism, the idea that we must apply the broad principles elucidated in the constitution (which is, of course, written in very broad language) and the DOI to new situations as they arise. That means often times applying those principles in ways that the original authors not only did not foresee but would have explicitly rejected (the equal protection clause of the 14th amendment being a textbook example)...
It also should be noted that the FFs were as hypocritical and contradictory as politicians are today. Even a text as clear as the free speech and free press clauses of the First Amendment were almost immediately contradicted with the passage of the Sedition Act, nearly before the ink was dry, and newspaper editors were thrown in jail for criticizing the government. That's why we often have to look at principles rather than the inconsistent application of those principles by flawed men.
Tom Van Dyke then replied to my comment in a couple of places, while also replying to others. Here are the relevant portions of his response to me:
As for your note that mindreading the ratifiers is difficult, I agree. But where Brayton an others jump off the cliff is reading "principles" into the text that have nothing in common with anything found in the ratification debates or in the public dialogue of the times.In other words, we may have trouble figuring out what they said or thought back then, but it's not hard to tell what they didn't say...
But as with all law, you also look to custom and practice after passage. You don't come up with a new interpretation 100 or 200 years later, and this of course is the fatal flaw in Mr. Brayton's method.
So here it appears that Van Dyke is appealing to all three forms of conservative originalism: original intent originalism (looking at what was said in the ratification debates); original public meaning originalism (looking at the public dialogue of the times); and original expected application originalism (looking at the custom and practice after passage).
Which is why I then asked him this question:
From an originalist perspective (and form of originalism other than the one that I advocate), was Loving v Virginia rightly decided?
To which he responded:
Come in, said the spider.No thanks, Ed. I don't buy your conflation of two different marriage issues.
http://scienceblogs.com/dispatches/2006/10/scalia_on_loving_v_virginia_1.php
As for Plessy, etc., a "textualist" reading of the Fourteenth Amendment would say that if they meant "separate but equal" instead of "equal," that's what they should have written.
And I did pay you the courtesy of reading up on your positions on these things as evidenced by my previous comment, which I believe represented your position fairly, and your comment right after mine confirmed it.
I think by the time we get done claiming "principles," we've obliterated history and fact, and substituted abstractions for reality and reasonableness. This will not do.
The comment about Plessy is not at all relevant; the issue in Loving had nothing to do with separate but equal accommodations.
And in the case of the equal protection clause of the 14th amendment and interracial marriage, we know that those who framed the amendment (original intent) explained to the people who voted for it (original public meaning) that it absolutely would not overturn state laws against interracial marriage. We know that the custom and practice of the time and for nearly the next century continued to prohibit interracial marriage and the courts continued to refuse to overturn such laws on the basis of the equal protection clause.
(And please note that the comment about Plessy is not at all relevant; the issue in Loving had nothing to do with separate but equal accommodations.)
So if we apply any of those three forms of originalism to interpret the meaning of the equal protection clause, it is absolutely clear that Loving was wrongly decided and the laws against interracial marriage should have been upheld. The framers made it crystal clear that the amendment would not invalidate miscegenation laws. They made those statements to the residents of the states, who voted for the amendment on that basis (if it had not been so, the 14th amendment would almost certainly have failed). And the legal situation after the passage of the amendment remained the same, with laws against interracial marriage continuing to exist in almost every state with no court until 1967 interpreting the equal protection clause of the 14th amendment as prohibiting such laws.
So the question for Tom Van Dyke remains -- to quote him directly -- why was Loving not an example of "reading 'principles' into the text that have nothing in common with anything found in the ratification debates or in the public dialogue of the times"? Why was the court in Loving not guilty of having "obliterated history and fact, and substituted abstractions for reality and reasonableness"? Or perhaps, were they guilty of those things?
From the viewpoint of original principle originalism (or liberal originalism, to use Barnett's phrase), this answer is relatively easy. The principle of equal protection was obviously violated by laws against interracial marriage even if those who framed the amendment and those who voted for it were unwilling to admit that at the time.
From the viewpoint of any or all of the three theories of conservative originalism, I cannot imagine a coherent and consistent argument that could lead one to conclude that Loving was correctly decided. Which leaves advocates of those theories with two choices: A) admit that it leads to a clearly wrong result; or B) engage in special pleading and jettison their interpretive theory in order to achieve what was clearly the cause of justice in that case - which is precisely what they accuse their opponents of doing.
I could be wrong. Perhaps Van Dyke can come up with a coherent, consistent way to apply the theories he advocates and logically support Loving. If so, he will be the first to do so.
Disclaimer: Let me add one more thing. If Van Dyke does choose to reply here, I would ask the commenters to keep the conversation civil and respectful. Things have gotten out of hand in previous threads involving him and I've been too busy to police them. But I'm going to make a point of paying attention to this one. If you can't make your argument against him in a civil manner, please don't make it at all. Thanks.
Politics
Comments
Excellent post, Ed. It undoubtedly is the case that Bingham and those who pushed for ratification of the 14th amendment were hypocrites in seeing its conflict with laws against miscegenation, both in plain text and principle. I am more than happy to forgive that hypocrisy, if that was the internal comprise they had to make in order to frame and ratify the amendment. An interesting question for many originalists, especially those on the right, isn't only how they justify Loving, but how they think it would have been decided had their favorite justices been on the court instead of that 1967 lineup that contains their favorite whipping boys.
Posted by: Russell | November 22, 2009 9:53 AM
Here's another question that hits on the same issue that you address.
Given that the Constitution is written in broad language, so that the writers of the 14th Amendment would not have put in specific exemptions, and assuming the 14th does not include Loving, how would we rewrite it today (again in broad language) so that it does include Loving?
After all, it provides for "equal protection". How would we write it better? It should provide "really, really, equal protection"? "Equal protection with sugar on top?"
Posted by: Ahcuah | November 22, 2009 10:00 AM
All forms of originalism, liberal or conservative, ultimately are a poor basis for making policy. The founders were wise and worthy of a decent respect, but ultimately should not count more than those of us alive today.
Appeals to "what would the founders think" on any issue remind me of the time I spent in Charlottesville, Virginia where the student newspaper would sometimes spend considerable effeorst to discern the thoughts of Mr. Jefferson on whether there should be a break during the fall semester or not.
Let's stop trying to read the minds of the long dead and base our laws and our lives on what our best current knowledge tells us.
Posted by: JusticeLeague | November 22, 2009 10:03 AM
IIRC I though Barnett also bought into the argument that the federal government was delegated powers to defend the rights of citizens against unconstitutional encroachments of their rights by state and lower authorities at the time of ratification (while acknowledging the obvious that we mistakenly did not practice that principle in our ever-going attempt to 'perfect the union').
That argument if true effectively renders the argument regarding what was incorporated by the 14th Amendment redundant on this issue. One may also consider what was originally ratified though cognizant of the Amendments prior to the 14th.
If one doesn't require 14th amendment incorporation to strike down miscaegenation laws, than game over. When we ratified the Constitution we provided both the space to exercise our rights and a government obligated to defend those rights except where we delegated powers to the government that regulate or prohibit those rights. (I do remember that Barnett effectively proves the government has no prohibitive powers unless the protection of superior rights are at stake or such powers were explicitly delegated, e.g., power to tax).
Certainly the application of laws and precedent in practice were contra. Post-14th ratification the Court has instead considered incorporation while acknowledging the 10th amendment's state provisions but also while ignoring the 10th's people provisions and the 9th Amendment. I thought Barnett argued that this approach was so flawed it is precedent worthy of being overthrown if one is attempting to create standing precedents most representative of original principles.
This is my argument by the way.
I'd look this up to validate its consistent with Barnett's argument but I lent my Barnett book discussing these issues out to a friend.
Posted by: Michael Heath | November 22, 2009 10:27 AM
I would also like to see Mr. Van Dyke provide a coherent and consistent application of original intent originalism to the Loving case. Very unlikely that he, or any adherent to Conservative Originalism can apply their interpretation of the 14th amendment to Loving.
Interesting debate though.
Posted by: David | November 22, 2009 10:48 AM
Justice League @ 3,
How does your argument not extend infinite powers to the Judiciary?
Just like political conservatives arguing about the Constitution propose democratic conservatism which effectively renders the Constitution meaningless, i.e., 'whatever the majority think is Constitutional is constitutional', aka "the will of the people" (where they repeatedly define "people" as the majoritarian view of conservatives alone). Doesn't your argument propose, 'whatever the highest appellate justices currently think is constitutional without need of any underlying basis to guide their work'.
Your position appears to extend abstract principalism, a traditionally liberal approach I greatly respect, beyond any tenable limits to keep judges reined in by the Constitution itself.
Posted by: Michael Heath | November 22, 2009 10:53 AM
I'm sure TVD will disagree with this -- and some commenters here might as well: TVD supports slow Burkean changes. Both Loving and Lawrence could be justified on Burkean grounds in a way that Roe, for instance, could not.
From what I understand, Roe overturned 2/3 of state abortion laws. When both Lawrence and Loving were passed states the states that had either anti-sodomy or anti-miscegenation laws were in the teens.
There is no question that the ratifiers of the 14th Amendment did not expect it to outlaw interracial marriages (but the general principles could be found in there). If the Supreme Court outlawed anti-miseg. laws in 1867 as opposed to 1967, it would have been an anti-Burkean watershed.
I'm not endorsing such Burkeanism or even saying that I have the right answer, just making an observation.
Posted by: Jon Rowe | November 22, 2009 11:01 AM
Posted by: llewelly | November 22, 2009 11:06 AM
A non-American thinks: "can't you read the original Hebrew on which sacred stones which The Constitution (may Its name be blessed) is written?". Or have I misunderstood the sacred nature of The Constitution (may It prosper on Earth) and Its Amendments (may They glorify Its Words)?
JusticeLeague at #3 has it right: mind-reading the intentions of people of the past in historic situations is not the way to make decisions for people in the present in modern situations.
Posted by: Sam C | November 22, 2009 11:09 AM
And the legal situation after the passage of the amendment remained the same, with laws against interracial marriage continuing to exist in almost every state with no court until [19]67 interpreting the equal protection clause of the 14th amendment as prohibiting such laws.
Did every state in 1867 or 8 have anti-misceg. laws? I'm not sure if this is what Ed is claiming in this passage; but it could be read that way. I would have worded it a little differently. Though I'm not sure what the state of anti-miseg. laws were in 1867. I know a lot of states had them. And the people from those states relied on the Framers' assurances that the 14th preserved the legality of said illiberal laws.
Posted by: Jon Rowe | November 22, 2009 11:18 AM
Ed,
I just taught my History class about Plessy and framed the discussion around how the Jim Crow laws undermined the intent of the 14th and 15th Amendments. Then I showed them a video where it put up the reasoning behind Plessy and I was shocked to see that they argued from intent. They said that the original ratififiers never intended to take away differences.
What they should have said was that they wanted to use these so called differences to reinstitute the Plantation System in the South through the Jim Crow laws. That is exactly what happened. My reading of Madison in the Federalist Papers tells me that he thought that individual rights were the issue. In other words, it was not about state rights or national government rights. Federalism was instituted to protect individual rights.
If I understand your position correctly( I am a novice on this topic)I think you world agree with all that I just stated above. Would you not call that Original Intent? I am not understanding the nuances here.
Posted by: King of Ireland | November 22, 2009 11:35 AM
I've been flogging Loving as the refutation of most forms of originalism for two decades, but no one listens to me. Jon Rowe probably has right the only respectable "conservative" response for those originalists who do not, in their private moments, admit that Loving is, by their lights, wrong: "we're just used to inter-racial marriage now, dammit."
Posted by: CJColucci | November 22, 2009 11:39 AM
Jon Rowe stated:
That's a policy argument, and therefore completely useless when it comes to arguing the constitutionality of an issue.
Sam C @ 9:
That misrepresents originalism by describing it all as original intent, so much so it could be argued it's a strawman of all at least all other originalist approaches and even original intent itself; including Scalia's original meaning and Barnett's liberal originalism.
I think original intent has been and currently is a horrible approach as well because its past and current adherents appear to be merely attempting to provide cover to promote their policy preferences. However if applied correctly it is an arguably respectful approach. The fact that it stands in the abstract but fails in practice is one reason to currently reject it, but I think it'd be wrong to disregard it entirely if it's ever correctly applied.
Posted by: Michael Heath | November 22, 2009 11:41 AM
Michael Heath #6:
"Doesn't your argument propose, 'whatever the highest appellate justices currently think is constitutional without need of any underlying basis to guide their work'."
In the end, the Constitution says what the Supreme Court of the day says it means. They have plenty of guidance from 2 centuries of jurisprudence without resorting to mind reading dead guys. Besides, selective quotation of the Founders, like the Bible, can justify just about anything.
I have seen birfers ask, "Would the Founders have allowed someone like Barack Hussein Obama (they always use his full name) to be President?" My response is first, who knows? And second, who cares? Most of the Founders probably wouldn't have imagined a female, black, native American, Catholic, Jewish, etc. President. So what?
Posted by: JusticeLeague | November 22, 2009 11:58 AM
Jon-
We'll have to wait for TVD to weigh in with his own arguments here, but if he does indeed endorse Burkean style evolution of society arguments, I think that pretty clearly contradicts his invocation of the various forms of conservative originalism. The whole point of those originalist arguments is that the changes in society's perceptions or beliefs should have no impact on how one interprets a written constitution. The whole point is to tie one's interpretation of those texts to how they were understood at the time of ratification. To invoke Burkean-style evolution as proper in constitutional interpretation would be to engage in precisely the kind of reasoning that conservative originalism explicitly rejects.
Posted by: Ed Brayton | November 22, 2009 12:03 PM
Ed,
If I understand Justice Scalia's position -- and perhaps Scalia isn't a good enough originalist -- it's that where the text is indeterminate (for instance, abortion where Scalia mentions the text of the Constitution says nothing about it) we can look to the "traditions" in ordered liberty as a supplement. But Scalia then concludes the right to abortion isn't found within such traditions.
I think Scalia would also note that the right to "sodomy" hasn't been around long enough to vet Lawrence's verdict.
But I do think that is part of Scalia's method -- it's a very slow form of living constitutionalism.
Posted by: Jon Rowe | November 22, 2009 12:12 PM
Let me also note I had a law professor at Temple, David Kairys editor of "The Politics of Law." I didn't really care for his teaching style. He made the class interesting but was about as fair to conservatives (or non-hard leftists) as Ann Coulter is to liberals (were I the Dean of Temple, I'd get back at him by hiring Ann Coulter and demanding they team teach together).
In one of his books he made us read, however, I did remember an apt critique of Scalia's standard. He recited Scalia's text + tradition test, and then noted it flunked its own test. Scalia's traditions in ordered liberty test is not found within the text of the Constitution.
Posted by: Jon Rowe | November 22, 2009 1:19 PM
I wonder how different people view the current attempt to "restore" the Privileges or Immunities Clause. As far as I can tell slaughterhouse failed on any definition of original intent. But what effect will a reversal of slaughterhouse have? Can effect be relevant to the decision?
I'm not a lawyer and am really struggling to understand the Privileges or Immunities Clause anyway.
Posted by: ppnl | November 22, 2009 1:41 PM
Posted by: G. Shelley | November 22, 2009 2:09 PM
Michael Heath #6,
I know not of what I speak regarding this topic, but just looking at the structure of your proposals, isn't the judge's selection of an underlying basis to guide his/her work just as much a matter of intellectual preference as intellectual preference for any single judicial outcome would be? Does pushing it back one level, from judge's-fancy-on-a-per-case-basis to judge's-Constitutional-philosophy-of-interpretation really buy you that much more?
I can see arguments that it might; just something to think about.
Posted by: cm | November 22, 2009 2:17 PM
PPNL,
The answer is "it depends." One could argue much of what the Court has incorporate thru the DP clause properly incorporates thru the P or I Clause. Hence, the results would be the same.
However, the next question is is the Court properly incorporating those rights and the answer is arguably no. The Court's incorporation of the BOR is too "selective." POR means, for the most part, the First 8 Amendments. But, unfortunately to complicate things even further, as Akhil Amar has shown even then there are refined "nuances" when we take the First 8 and incorporate them thru the P or I of the 14th.
I know many won't be able to comprehend what I've written above; but that's because this is a complicated issue and needs more space.
Posted by: Jon Rowe | November 22, 2009 2:18 PM
cm @ 20 - your point is a good one. However, if I claim a standard either consistently or even within an opinion, you can at least measure how loyal the result is to the standard. This is why I can't take J. Scalia seriously, he notes a standard and then mostly avoids if it results in a non-conservative outcome (there are exceptions).
If I had to guess it's Scalia's avoidance of originalism when he ruled in a manner restricting our castle doctrine rights that's caused Ed to start posting regularly on the police's relatively recent so-called professionalism. In that case Scalia discovered a rationale to narrow our exercise of that right because law enforcment could now supposedly be trusted when they couldn't at our founding - an incredibly hypocritical reason to disregard originalist principles and narrow the exercise of "a
man'sperson's home is his castle".Jon Rowe - I read J. Scalia's Matters of Interpretation when it first came out. That was my first serious introduction to originalism, which if I remember correctly, he called his flavor textualism. Scalia was bold enough to dedicate chapters to his retractors and then he ended with his defense against the rebuttals. I thought he failed miserably, which moved me more towards abstract originalism than I was previously. It was Barnett's Restoring the Lost Constitution that won me over to originalism as a superior abstract approach, specifically Barnett's approach as its practical application, which Ed is describing here as original principle orginalism, which I think of as an evolved descendant of abstract principalism.
Posted by: Michael Heath | November 22, 2009 2:42 PM
Clerical error in my last paragraph at 22, which shoud read:
Jon Rowe - I read J. Scalia's Matters of Interpretation when it first came out. That was my first serious introduction to originalism, which if I remember correctly, he called his flavor textualism. Scalia was bold enough to dedicate chapters to his retractors and then he ended with his defense against the rebuttals. I thought he failed miserably, which moved me more towards abstract
originalism[this was mistake] principalism than I was previously. It was Barnett's Restoring the Lost Constitution that won me over to originalism as a superior abstract approach, specifically Barnett's approach as its optimal practical application, which Ed is describing here as original principle orginalism, which I think of as an evolved descendant of abstract principalism.Posted by: Michael Heath | November 22, 2009 2:46 PM
The decision in Loving v. Virginia was completely in line with original intent. The FF foresaw changes in the Constitution and established an amendment process to accomplish this. In that sense, and that sense only, the Constitution is a "living" document. Conservatives successfully amended the Constitution following the Civil War paving the way for the decision in Loving v. Virginia. Following this process is the very definition of conservatism.
Of course, the left tactically tries to assign the term "conservative" to any government decision or action that might be construed as racist. Unfortunately for them history shows that it is leftists, progressives and populists that have used, and continue to use, racism as a tool to promote their agenda. Any study of the progressive and early union movements quickly destroys their moral pretensions.
The left pushes the "living document" interpretation as a way to circumvent the legislative process and impose their world view through judicial fiat. They use words like "originalism" in an Orwellian effort to disguise the fact that such an effort stands in radical opposition to the democratic principles enshrined in the Constitution. We may have to amend the Constitution again in order to circumvent such efforts and protect our system of government.
Perhaps what is needed is for leftists to experience the business end of their anti-Constitutional folly. It would be edifying for those in Hollywood and the media to experience the effect of targeted taxation, in effect a bill of attainder, in the same way that those in the tobacco and oil industries have experienced it. It's never too late to learn.
Posted by: Che is dead | November 22, 2009 2:46 PM
Mike,
I wouldn't say Scalia "failed miserably." I think his form of originalism is as defensible as any other. What ticks me off about his or Bork's claims is the idea that they "own" the Constitution. If they are right, it's what the Constitution says. Otherwise it's judges just making things up.
That's a palpably false assertion.
Posted by: Jon Rowe | November 22, 2009 2:55 PM
Jon-
In his Taft lecture, Scalia famously called himself a "faint-hearted originalist" because if an originalist analysis led to results he considered heinous he would refuse to follow that analysis. He even offered specific examples of a hypothetical case where a legislature passed a law allowing public whippings or branding one's skin as punishment for a crime and said that although an originalist analysis would almost certainly support upholding such law, he would not do so.
As Randy Barnett correctly wrote several years ago, Scalia leaves himself a number of "outs" to avoid following his theory of interpretation to its logical result when those results are not what he prefers:
I am attempting to demonstrate essentially the same point here using TVD as my foil, that those who argue in favor of conservative originalism don't really mean it - they only mean it when it leads to results they like. When it leads to results that are clearly unjust they jettison their mode of interpretation and pick and choose among a number of other possibilities. And this is precisely, of course, what they accuse living constitutionalists of doing. Originalism is a convenient stick with which to beat liberal judges but when it leads to heinous results, its advocates immediately engage in special pleading to reach the result they want - just like those liberal judges upon whom they use that stick.
Posted by: Ed Brayton | November 22, 2009 3:01 PM
I'm no legal scholar, but it looks to me like TVD is arguing for some odd ontological position here. That is, he seems to deny that there is even any such thing as abstract principles surrounding the laws as they are written. Perhaps I'm mistaken and he can correct me, but that would seem to me to be a pretty indefensible position just on basic logic grounds.
Posted by: Tyler DiPietro | November 22, 2009 3:03 PM
Che is dead wrote:
Except you skipped over the historical reality that those who framed the 14th amendment and those who ratified it quite explicitly denied that the amendment should be applied to invalidate anti-miscegenation laws. Not only did they not think that the 14th amendment should "pave the way" for Loving, they very specifically and explicitly denied that it would do so. Had they not, the amendment would not have passed. Thus, any theory of conservative originalism would reject the result in Loving.
Posted by: Ed Brayton | November 22, 2009 3:04 PM
All the way to comment 24 before the first idiot weighs in.
"Perhaps what is needed is for leftists to experience the business end of their anti-Constitutional folly. It would be edifying for those in Hollywood and the media to experience the effect of targeted taxation, in effect a bill of attainder, in the same way that those in the tobacco and oil industries have experienced it. It's never too late to learn"
Spoken like a Marlboro Man who loves his Hummer.
Of course Hollywood and the media are guilty of being causally linked to at least 10 million deaths in the U.S. over the last fifty years (Big Tobacco) and degradation of watersheds & marine eco-systems & extortianate profiteering (Big Oil)--NOT.
Posted by: democommie | November 22, 2009 3:14 PM
Except you skipped over the historical reality that those who framed the 14th amendment and those who ratified it quite explicitly denied that the amendment should be applied to invalidate anti-miscegenation laws.
Those in opposition at the time pointed to the implications of the amendment as written. It wasn't that no one foresaw such an outcome and therefore didn't address it, they saw it clearly, even if they denied that such an outcome was their specific intent. Despite this they did not alter the wording of the amendment to specifically proscribe miscegeny, instead, they accepted the possibility that it could be construed that way and moved ahead. This was a process involving broad debate among elected representatives of the people not the declaration of an appointed judge acting on his own.
Posted by: Che is dead | November 22, 2009 3:25 PM
I appreciate the call for civility, Ed, and thank your readers for heeding it to this point.
I had replied to your question on Loving at American Creation with this:
A ban on interracial marriage would have meant that marriages [black-black, white-white] would have been "separate but equal" based on race.
...continuing my previous observation
As for Plessy, etc., a "textualist" reading of the Fourteenth Amendment would say that if they meant "separate but equal" instead of "equal," that's what they should have written.
First you look at the text, and it says "equal." Then, to not get sophistic about it, you look at the "original understanding" by the ratifiers, in this case of the 14th Amendment: equality for black folks was clearly understood.
For the record, I do not endorse "all three" methods of "originalism," and in fact I was quoted as citing James Madison approvingly against "original intent," that of the Framers. As a matter of fact, Madison was delaying publishing his notes of the Framing debates:
"As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses."
In our original exchange, I wrote
"In other words, we may have trouble figuring out what they said or thought back then, but it's not hard to tell what they didn't say..."
The core virtue of "originalism" is simply this: Where the constitution is silent, it is silent.
There is no constitutional, federal or judicial cure for the zillion things that make up the human condition, and "principles" or "penumbras" often become contentious if not tortured and absurd. Sometimes, you just have to pass a law.
One would think Michael Vick has a constitutional right to dispose of his property as he sees fit, but we don't permit cruelty to animals. The constitution is silent on cruelty to animals; a law banning it is constitutional, but so would be a law that protects it, much as that offends our sensibilities, our "standards of decency," if you will.
The same would be true of cannibalism [assuming the eat-ee gave his permission]. And so on.
Now, even if your audience finds my answer on Loving to be unsatisfactory [I expect they will], I object to the nature and reframing of this debate on "originalism" at the outset: Even if the method could be proved to be inadequate, as Justice Scalia puts it [I quote him not out of authority, but out of the fact he does this for a living, puts the point well, and my natural laziness encourages cut-and-paste whenever possible]:
"There is saying in politics that you can't beat somebody with nobody. No matter how bad the candidate run by the other party is, unless you put somebody up you're going to loss. It's the same thing for philosophies of constitutional interpretation. If you don't like originalism, and some originalism pause to debate. Originalism has a lot of problems. It's not always easy to do. Sometimes it's very hard. Sometimes it's awful hard to tell what the original meaning was. I'll acknowledge all of that. But the real problem is not whether it's the best thing in the world, but whether there's anything better. And what you have to ask the non-originalist law professor or whoever else is, "what do you propose?" What does a judge consult, if not the original understanding of the text? What binds the biases of judge? Prevents him from simply implementing his own prejudices? What is the standard? And the fact is, I have never heard another one that has a snowball's chance in hell of ever being adopted by more than two people. What are you going to use? The philosophy of Plato? Natural law? That's handy. That will tell judges what to do. Some suggest the philosophy of John Rawls. Public opinion polls? Is that what you want? What do you want to use? If you don't take what I suggest, what is the standard? The answer is, there isn't any."
So, it's fair to put "originalism" on trial, but not as the only defendant. My criticism of Ed Brayton's method of "principles" stands, that
I think by the time we get done claiming "principles," we've obliterated history and fact, and substituted abstractions for reality and reasonableness. This will not do.
Thx for the space on your blog, Ed. I'll post an adapted form of this reply over on my blog, American Creation, and your thoughtful and civil readers are invited to join us there, as of course are you. If you wish to make longer responses than is proper for a combox, your remarks will be put on our mainpage as a guest blogger. I apologize in advance to your readers for not responding in this combox any further, but as you note about yourself, we are both busy men.
Posted by: Tom Van Dyke | November 22, 2009 3:27 PM
I'm going to be selective in my response here.
Despite this they did not alter the wording of the amendment to specifically proscribe miscegeny, instead, they accepted the possibility that it could be construed that way and moved ahead.
This is a non-sequitur. We could respond: "So what?" The fact that the 14th Amendment doesn't specifically outlaw "miscengeny" doesn't prove, or at least according to the kind of originalism promoted by the author of the comment, doesn't prove squat regarding whether governments would be permitted to ban the practice.
This is, after all, a school of thought that teaches unless the constitution grants a specific right to do something, government is allowed to prohibit it.
And that's the problem here. When it comes to issues like interracial marriage, abortion, sodomy the constitution is entirely silent. It says neither government has a right to outlaw said specific things, nor that individuals have a specific right to do these things.
That's why a broader grounding theory is necessary. Scalia's text + tradition school certainly doesn't get one a right to interracial marriage in 1868, and arguably doesn't get one a right to said behavior in 1967 either.
Posted by: Jon Rowe | November 22, 2009 3:51 PM
This is, after all, a school of thought that teaches unless the constitution grants a specific right to do something, government is allowed to prohibit it.
This is just gibberish.
It says neither government has a right to outlaw said specific things, nor that individuals have a specific right to do these things.
This is why we have legislatures, constituted of elected representatives. We invest in them, through our vote, the authority to decide the legality of any given act consistent with our individual rights. The courts are there to ensure that this process conforms to that mandate either at the state level, when the state is acting within it's proscribed authority, or universally at the federal level. If you do not like the result of any given statute you are required to work through the legislature or the ballot box to change it. This is the way abortion, which was legal in many states, was handled before the Supreme Court decided Roe v. Wade.
Posted by: Che is dead | November 22, 2009 4:22 PM
Tom Van Dyke wrote:
But this simply is not the case. The question of "separate but equal" was never an issue in Loving at all. The ban on interracial marriage had no effect at all on black/black or white/white marriages, just as the ban on same-sex marriages has no effect at all on opposite-sex marriages. The question was solely whether such marriages could be banned under the equal protection clause.
But textualism is not the issue here; originalism is. They are entirely distinct theories of interpretation. And indeed, in order to make your next argument, textualism has to conflict with originalism. You write:
But just as clearly, it was understood that equality for black folks did not include any right to marry anyone but black folks. I absolutely agree that the broad principle of equality for black folks requires the end of miscegenation laws; thus my support for Loving. But that is a liberal originalist position, not a conservative originalist one. As I explained in great detail and you do not deny, by any of the three forms of conservative originalism the logical result would be that Loving was wrongly decided.
As for the Scalia quote and the argument that originalism may be flawed but so are the alternatives, this is an entirely fair point. But that argument leaves originalism in exactly the same position that its alternatives are -- without acknowledging that fact. As I explained, the problem here is that conservative originalism is always sold as the only alternative to results-based jurisprudence. But if originalism has to be abandoned when it leads to heinous results, as Scalia bluntly admits it must, and one must jettison it and choose other interpretive methods to reach a more just result in some cases, then originalists are doing exactly what they accuse their opponents of doing - engaging in results-based jurisprudence.
The point here is that this should simply be admitted, that all judges operate on the basis of attempting to reach just results and they choose their interpretive methods (and choose to reject them when necessary) to reach those ends. And all that hypocritical rhetoric aimed at the advocates of living constitutionalism and other modes of interpretation should go away because originalist judges are doing the same thing, they're just refusing to admit and refusing to stop berating others for the same sins they commit.
Posted by: Ed Brayton | November 22, 2009 4:27 PM
This is why we have legislatures, constituted of elected representatives. We invest in them, through our vote, the authority to decide the legality of any given act consistent with our individual rights. The courts are there to ensure that this process conforms to that mandate either at the state level, when the state is acting within it's proscribed authority, or universally at the federal level. If you do not like the result of any given statute you are required to work through the legislature or the ballot box to change it. This is the way abortion, which was legal in many states, was handled before the Supreme Court decided Roe v. Wade.
Every single thing you said here applies to Loving v. VA. Let the democratic process resolve it. There is no specific right to miscegenation in the Constitution any more than there is a right to abortion or sodomy.
Posted by: Jon Rowe | November 22, 2009 4:42 PM
"This is just gibberish."
And you say this because you aren't even aware of the presumption of constitutionality conservative jurisprudence school in which you appear to be defending.
Why don't actually read what Justice Scalia said about jurisprudence and then get back to us.
Posted by: Jon Rowe | November 22, 2009 4:52 PM
I've always wondered how conservative originalists explain early turns in Constitutional law such as the Alien and Sedition Acts under Adams or the turnarounds in Dartmuth or the Charles River Bridge cases. I've read a number of analyses of this period, but never from a true originalist. What's the scoop?
Posted by: kehrsam | November 22, 2009 5:12 PM
Che is dead - great Poe. You had me going for a minute.
I'm still trying to figure out if Jonah Goldberg has yet realized he's to political science what Ray Comfort is to science.
Posted by: Michael Heath | November 22, 2009 5:17 PM
Every single thing you said here applies to Loving v. VA. Let the democratic process resolve it. There is no specific right to miscegenation in the Constitution any more than there is a right to abortion or sodomy.
Why don't you take a civics course? The state's right to legislate relative to miscegeny was what was at issue in Loving v. Virginia. If the Constitution was silent and the right to marry was not universal, then yes, Virginia would have prevailed. The Court decided that the 14th Amendment addressed this issue and decided in favor of the plaintiffs. Until a right is established as universal it is the right of each state to legislate within the confines of their own constitutions. What's so hard about this?
And you say this because you aren't even aware of the presumption of constitutionality conservative jurisprudence school in which you appear to be defending.
I say this because you are unaware of the 9th and 10th Amendments to the Constitution.
Posted by: Che is dead | November 22, 2009 5:19 PM
I'm still trying to figure out if Keith Olbermann has yet realized he's to political science what Al Gore is to science.
Posted by: Che is dead | November 22, 2009 5:31 PM
The problem with "originalism" is that it just shifts you from arguing about the Constitution means to arguing about what originalism means. The whole concept of a strict, literal reading doesn't make sense when the constitution is full of abstract ideas like equality, due process, reasonableness, cruelty and unusuality. Obviously, everyoen considers the text and what it says, but that's not realy sufficient as a guideline.
Posted by: Ace of Sevens | November 22, 2009 6:01 PM
As a European with no particular reverence for the US constitution beyond what the text and its applications over the years may merit, I'm wondering a bit what all the fuss is about. Wouldn't it be perfectly principled to argue that anti-miscegenation laws are constitutional, but still a really, really bad idea?
You could even go one further and argue that, in light of this, the constitution should be amended to ensure that anti-miscegenation laws would be clearly unconstitutional, should anyone want to reintroduce them at some time in the future.
Posted by: konrad_arflane | November 22, 2009 6:09 PM
"As a European with no particular reverence for the US constitution beyond what the text and its applications over the years may merit, I'm wondering a bit what all the fuss is about. Wouldn't it be perfectly principled to argue that anti-miscegenation laws are constitutional, but still a really, really bad idea?"
The first problem is that you would have to convince all 50 states as they each get to decide individually. If we had gone that rout we would probably still have states where mixed race marriages were illegal.
Changing the constitution was intentionally made difficult. It has to be passed by 3/4 of the states. That is a tall order and I'm not sure that any new amendments to the constitution will ever be passed.
It turns out that it is far easier to use contradictions and poor wording in the constitution to convince a judge that it allows or prevents something that it was never seen to allow or prevent before.
The authors of the constitution would never have believed that it would be used to prevent states from outlawing mixed race marriages. Yet a court was convinced that it does just that.
The simple fact is that when this nation was founded slavery was legal. Our understanding of civil rights and freedom was inconsistent, contradictory and poorly defined. As a practical matter it is inevitable that the constitution will be seen in the light of modern society. Conservatives will argue against this by calling it "legislating from the bench". And liberals will try to use the courts to force change that they can't get through the legislature.
I think it was Jefferson who suggested that the constitution be rewritten every 20 years. He argued that the dead should not rule the living. He may have had a point.
Posted by: ppnl | November 22, 2009 8:09 PM
Che is dead:
Wow, you really are a perfect case of intellectual dishonesty. We are talking about whether the Loving decision was justified from a particular theory of constitutional interpretation. And your answer is that the decision itself settled it. Talk about missing the point. I suspect you're missing it intentionally because you cannot respond to the clear argument being made.
Posted by: Ed Brayton | November 22, 2009 8:34 PM
I'm just a common man interested in these debates, but it seems to me the founders left a huge out for a lot of things in the 10th amendment. It just seems to be a double-edged sword. Conservatives like to jump on this one for "states rights", but I think the right to abortion, for example, would be one on those rights reserved to the people, not the states.
Posted by: EyeNoU | November 22, 2009 9:08 PM
The only stake I have in this race is myself: I am a product of an interracial marriage. True, an interracial marriage of a half-Norwegian/quarter-French/quarter-Irish (ie, "white") man and a Japanese woman (as opposed to the white - black unions that was probably meant by the myriad anti-miscegenation laws). Still, an interesting post.
Posted by: Umlud | November 22, 2009 11:50 PM
I don't buy this idea that the founders wanted the Constitution, and the interpretation of it, to remain static and unchanging. Consider how they themselves were heirs to a long tradition of reinterpreting the Magna Carta. The pious nobles who held the sword over John's head and forced him to sign that charter never intended it to apply to townsmen, let along farm-grubbing peasants. Indeed, they and their descendants maintained demesne courts for centuries afterward. None of the Founders were the type of person, i.e., the ennobled, who the original framers of the Magna Carta intended to protect; if anything, by upholding their rights to their lands and their serfs against the central authority of the king, they were attempting to weaken towns' and tenants' rights.
So the Founders themselves, and the English revolutionaries who proceeded them, engaged in exactly this sort of "original principle" originalism which Mr. Brayton et al have laid out (indeed, one could argue that the entire process of English common law stare decisis is precisely such an approach). To argue that they, who were intentionally setting out to create a broad, flexible Constitution for the long-haul, wished it to be more rigid and limited than the Great Charter is simply disingenuous. Either that or admission of a rather glaring historical ignorance.
Posted by: Julian | November 23, 2009 12:35 AM
As an American with no particular reverence for the US Constitution, I wonder what all the fuss is about too.
I'm hard pressed to find a reason to consider this argument as being substantially different than any of the various and common arguments about Biblical literalism. "So and so said this" and "Who-ha said that" therefore so it must be forever more blah blah blah. I'm in a surly mood, but even so, it's kind of irritating.
Posted by: Leni | November 23, 2009 3:06 AM
I'm with JusticeLeague; the founders set forth rules that worked out pretty well. The job of future generations is not to preserve those historical rules as they are but to make changes where appropriate (mutatis mutandis - hahaha). Where all future generations must be very careful though is that they do not destroy some of the protections put in place by the original founders. Various religious groups have tried to make destructive changes over the years and for the most part have failed; patriots must ensure that the vested interests fail and that the core (French) ideals of the founders are preserved. On the other hand, the original set of rules are few and very simple and that was a deliberate decision; any proposal to amend them must be carefully thought out, viewed with suspicion, and relentlessly scrutinized. But otherwise there is no apriori basis for declaring the rules eternally immutable.
Posted by: MadScientist | November 23, 2009 3:09 AM
Just a few questions about all forms of "originalism" - aren't they all simply ploys to uphold or reject laws whose constitutionality had been challenged? If so, isn't there a better way about things that to make stuff up? If not then we are at the mercy of the judges' imaginations and own personal moral convictions, and as the justice department is increasingly politicized and biased this is not a good thing.
Posted by: MadScientist | November 23, 2009 3:19 AM
MadScientist: I'd say it is less a ploy to reject laws challenged Constitutionally and more a kind of legal brinkmanship. The original point of "originalism" was to claim that there could be no precedent for certain decisions in Union jurisprudence because the foundational document of our law, the Constitution, said nothing about the issue, or was contrary to it. Essentially, it is an attempt to win the debate, or discredit one's interlocutor, by arguing that the decision in question could not possibly be the result of an honest recourse to precedent.
Posted by: Julian | November 23, 2009 8:51 AM
The original SCOTUS ruling that antimiscegenation laws did not violate the 14 amendment was Pace v Alabama, in 1883.
Posted by: william e emba | November 23, 2009 10:07 AM
Dear Mr. Van Dyke:
The question was: "Was Loving wrongly decided on your theory of originalism?"
There are three possible answers: (1) Yes; (2) No; (3) I don't know.
I saw your long response and do not see in it any of the three possible answers. If you want to give a long explanation of your answer after you give it, I'll be delighted to read it. But please answer the question first.
Posted by: CJColucci | November 23, 2009 12:30 PM
If, as you claim, the intent of the authors of the 14th Amendment was, in part, to ensure the sanctity of state anti-miscegenation laws, why was it necessary for Democrats to try over and over again to amend the Constitution to prevent miscegenation? Why seek a remedy to a nonexistent problem?
If the Constitution was silent on the matter of miscegenation and the rights of marriage, as those rights relate to citizenship, then, under an originalist interpretation, those rights belong either to the states or to the people. In other words, all rights belong to the people and state rights exist only relative to the authority of the federal government. State legislatures could move to define the limits of individual rights but that legislation would be subject to court review. The courts could, under and originalist interpretation, demand that the state show a compelling public interest in seeking to limit the rights of individuals to select their own spouse consistent with their God given right to "pursue happiness". The 14th Amendment ensures that those rights, however defined, must apply equally to everyone.
Loving v. Virginia would be consistent with the originalist, and conservative, interpretations of the founding documents; that an individuals rights should be defined broadly provided that the exercise of those rights does not negatively impact the rights of another. And that the state's interest must be shown to be "compelling" with regard to limiting an individuals rights.
Under an originalist interpretation of the Constitution the power of the government is severely limited and the courts limited charge is ensuring that legislation is consistent with the rights of the individual. If the legislature feels that the court, in it's decision, has ignored the public interest they can move to amend the Constitution and grant the federal government new authority. Examples of this would be Prohibition and the income tax, both pushed by leftist/progressives as compelling public interests and enacted only through constitutional amendment.
Of course, the amendment process was designed to be slow and difficult, insuring time for lengthy public debate and reflection. That is why leftists have turned to judicial activism as a means of circumventing constitutional limitations on state power. As a result, we get broad interpretations of "commerce" and "general welfare" which seek enhance and centralize government power and to redefine the relationship between the federal government, the states and the individual. All without the consent of the governed.
Posted by: Che is dead | November 23, 2009 1:43 PM
Unfortunately for them history shows that it is leftists, progressives and populists that have used, and continue to use, racism as a tool to promote their agenda.
Um...a major part of their agenda was to fight racism. And yes, they used the observable consequences of racism to encourage others to join them in fighting it. Is that what you meant? Or did you mean something else less intelligent?
Posted by: Raging Bee | November 23, 2009 3:30 PM
Okay, "Che is dead" is an idiot, and probably a neo-McCartyite libertard...
Of course, the amendment process was designed to be slow and difficult, insuring time for lengthy public debate and reflection. That is why leftists have turned to judicial activism as a means of circumventing constitutional limitations on state power. As a result, we get broad interpretations of "commerce" and "general welfare" which seek enhance and centralize government power and to redefine the relationship between the federal government, the states and the individual. All without the consent of the governed.
Really? The fact that all that "judicial activism" hasn't resulted in any impeachments of Federal judges, or any other sweeping changes in the opposite direction, kinda implies that, yes, it was indeed done with the consent of the governed.
Posted by: Raging Bee | November 23, 2009 3:35 PM
Um...a major part of their agenda was to fight racism.
South Carolina's Benjamin "Pitchfork" Tillman (1847-1914), a leading progressive who railed against the sins of "unregulated capitalism" while preaching the salvation of white supremacy. An ally of the agrarian populist William Jennings Bryan, Tillman supported antitrust laws, railroad regulations, the free coinage of silver, and a host of other progressive panaceas. He first entered politics as a member of the Red Shirts, a Klan-like terror group that "came out of the Civil War" to menace African Americans during the early years of Reconstruction. When President Theodore Roosevelt entertained the black leader Booker T. Washington at the White House in 1901, Tillman served as a de facto spokesman for the Southern opposition, declaring: "The action of President Roosevelt in entertaining that nigger will necessitate our killing a thousand niggers in the South before they will learn their place again."
AFL chief Samuel Gompers thundered: "If the colored man continues to lend himself to the work of tearing down what the white man has built up, a race hatred worse than any ever known before will result. Caucasian civilization will serve notice that its uplifting process is not to be interfered with in any such way." Along those lines, during the infamous 1892 Homestead strike against Carnegie Steel, black strikebreakers were beaten and dynamited by members of the picketing Amalgamated Association of Iron and Steel Workers. Once again, racist political violence coming from the left.
Reason
For "Appeal to Reason", the most successful publication in the history of the American Left, segregation was intrinsic to socialism. Whereas “private ownership of industries mixes up the races, reducing blacks, whites, and yellows to a common level,” "Appeal to Reason" noted that “socialism would separate the races and lift them all to the highest level each were capable.” “The white worker in the shop, mine, and factory is told that Socialism means race equality,” the Girard, Kansas–based weekly explained, but in reality “capitalism has forced him to work side by side with the negro, and for about the same wage. . . . [I]n the SIGHT OF THE CAPITALIST ALL WORKERS LOOK ALIKE.” The "Appeal", as did so many of its turn-of-the-century leftist readers, railed against the “yellow peril” and “Mongolian hordes” allegedly stealing jobs from “American” union workers.
“There can be no doubt that the negroes and mulattoes constitute a lower race,” Victor Berger, long the Socialist Party’s lone congressman, contended. “You know that capitalism never examines the color of the skin when it buys labor power,” the party’s national committeeman from Texas complained. When socialists acknowledged racial discrimination, they paternalistically counseled black Americans to abandon their selfish “personal” struggle for the “universal” struggle of the class war, which, when won, would magically solve all problems.
Planned Parenthood founder Margaret Sanger spoke at a 1926 Ku Klux Klan rally, used the “n” word in reference to blacks, and deemed Aboriginal Australians “the lowest known species of the human family, just a step higher than the chimpanzee in brain development.” “The Jewish people and Italian families,” she testified to the New York legislature, “who are filling the insane asylums, who are filling the hospitals and filling our feeble-minded institutions, these are the ones the tax payers have to pay for the upkeep of, and they are increasing the budget of the State, the enormous expense of the State is increasing because of the multiplication of the unfit in this country and in the State.”
Despite all this and more, a friendly historian recently judged, “Sanger was no racist.” Then, by this logic, neither were Theodore Bilbo and Bull Connor. To advocate certain progressive ideas is, for fellow progressives, evidence of innocence. And to do so under the guise of progress instead of tradition or habit, and with an intellectual’s accent instead of a redneck’s, provides immunity. Nonetheless, the progressive era resulted in the proliferation of miscegenation prohibitions, an increase in lynchings, and a majority of U.S. states backwardly codifying eugenics.
National Review
If I had meant something less intelligent, I would have quoted you.
Posted by: Che is dead | November 23, 2009 4:09 PM
As has often been said around here, "judicial activism" means "judges giving rulings I don't like". Its one of those phrases that instantly give the speaker away as a hack. (Of course, so does everything else he said, but I digress).
Posted by: Kyorosuke | November 23, 2009 5:02 PM
Che is dead, #54: That is why leftists have turned to judicial activism as a means of circumventing constitutional limitations on state power.
And rightists use "originalism" to deny that there are any constitutional limits on state power.
I guess the main different is that conservatives want to use state power to determine what I say, what I do, what I read or watch, who I associate with, even in the privacy of my own home. Liberals want to use state power to prevent other people determining what I say, what I do, what I read or watch, who I associate with, even in the privacy of my own home. Me, I know which use of state power I prefer.
Posted by: Chiroptera | November 23, 2009 5:05 PM
thanks admin
Posted by: herbalife | April 8, 2011 12:29 AM
This is why we have legislatures, constituted of elected representatives. We invest in them, through our vote, the authority to decide the legality of any given act consistent with our individual rights. The courts are there to ensure that this process conforms to that mandate either at the state level, when the state is acting within it's proscribed authority, or universally at the federal level. If you do not like the result of any given statute you are required to work through the legislature or the ballot box to change it. This is the way abortion, which was legal in many states, was handled before the Supreme Court decided Roe v. Wade.
Every single thing you said here applies to Loving v. VA. Let the democratic process resolve it. There is no specific right to miscegenation in the Constitution any more than there is a right to abortion or sodomy.
Posted by: herbalife | April 8, 2011 12:31 AM