[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to ... hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.... The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.... We must consider what the country has become ...
-- Justice Holmes
This (along with the appropriate quote from the national bank case written by Chief Justice Marshall about a century before) is one of my favorites respecting the true nature of the U.S. Constitution. And, it is one that I first read before I began writing online about these issues. The first time might have been in a nifty little volume by Laurence Tribe and Michael Dorf (who is a regular contributor of the equally nifty Findlaw website essays) on constitutional analysis entitled On Reading the Constitution. It was one of the times -- less than I should -- wrote notes. Here is my summary of their guidelines on reading [vs reading into] the Constitution:
(1) Framer’s Overall Philosophy -- example includes property protections such as the takings clause: these presuppose the existence of private property also rejects the idea that socialism is included in the equal protection clause
(2) Precedent -- it is always a good idea to lay a foundation of precedent, even when going into new directions of constitutional law; the model here is the common law method
(3) Integration without hyper-integration -- though there is no one unity (different traditions like federalism, tradition, democracy, etc. is actually a plus for its complexity), various parts do combine into wholes such as privacy.
[Tribe, by the way, was recently on a panel shown on C-SPAN that dealt with the constitutional interests involved in the current “War On Terror,” one whose general sentiment was that the Bush Administration is a threat to basic constitutional norms. It was one of many legal panels recently on the network, including one on international law (John Yoo again showed his face) and an admittedly boring one on yesterday’s orals on the Clean Water Act cases. A quite useful resource -- a regular “Supreme Court Watch” show should be on ... it actually was on Court TV a few years back with a chipmunk cheeked cutie as one of the reporters. Not blonde either!]
Anyway, this whole matter came up because of a recent speech [cited last time] by Justice Scalia in which he continued his jeremiad against the “living Constitution.” Clearly playing for the cameras, Scalia called those that did not agree with his opposition to this concept “idiots.” Since Scalia opposes school segregation, a concept deemed by most (though not all, but surely the test is general consensus) of the Framers of the 14th Amendment to be constitutional, he too is an idiot. As am I, so I welcome you to the club, Tony.
Anyway, he called himself an “originalist,” which is nice and all. It also is bogus, since Scalia is as concerned with “tradition” (which is not the same as what people at the time believed), clear statements, and certain personal biases. Someone mentioned to me his basic belief that originalism is totally phony, which is not my own philosophy. We should have some concern for what the original community understood about the Constitution, which suggests why even critics of the philosophy oftentimes cites the thoughts of Madison et. al. (we have a limited view of things; put aside Hamilton and even Adams ... it is like the Framers can be counted on one hand).
But, Scalia’s lame ass simplicity warrants scorn. A major reason is not just because it is false. It also is because it confuses the public and in fact directly misleads them on what actually occurs in the courts and society itself. We the People are not quite that dumb, surely, and instinctively know that our Constitution is no static instrument, but one which has terms that develop over time ... to fall back to legalisms, it is a “common law” Constitution, as one writer quite aptly put it. And, this is what was originally intended. So, ironically, it is quite “originalist,” properly understood. Anyway, this caricature Scalia, in no way as simplistic as his actual opinions (though he does encourage it sometimes), is a mockery of reality. He should be ashamed to promote it, but tenure gives him -- like Ward Churchill -- the right to B.S. without much harm coming to him.
Talking about confusion, I linked a Scotusblog post reporting the announcement of a fairly important religious rights case involving a small group that wanted to use a banned substance in a religious ceremony. The post supplied the actual opinion, a fairly straightforward one, which nicely summarized current law. Current law holds that the Free Exercise Clause does not require the courts to individually examine laws with a general reach, those that do not specifically target religion. Nonetheless, a federal law (RFRA) -- which the Supremes have held (I have mixed feelings about this*) cannot be used against the states -- set forth a stricter test.
Only this statute, not the Constitution, secured the small sect’s rights in this case. However, wire reports did not specify the fact, just saying the Supreme Court held the government could not block their rights. Given the importance of congressional action here, this is troubling. Dorf and Tribe noted that Jefferson counseled Madison that judicial review was an “auxiliary precaution” against tyranny.** And, this very case in miniature suggested this, since a tiny minority was secured ... just as a more protected one (Native Americans using peyote for similar reasons) currently were.
Nonetheless, and I believe this must be emphasized, the courts are by no means the only group that does this. The people and their representatives have quite a major role. In fact, Religious Liberty in America (Louis Fisher) argues that “political safeguards” are even more important than the courts to secure religious liberty. And, he is often quite right. The times surely suggest this to be the case writ large ... the question will remain if the people will truly understand the matter come election time. Or, will trivial matters -- such as Republican opposition to Bush on this port deal -- yet again decide the day? I am sadly unsure.
Oh, today’s the anniversary of the Miracle on Ice vs. the Russians. The movie version with Kurt Russell is excellent.
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* I am no fan of Oregon v. Smith, which put in place the “general applicable law” test, a rule that basically overturned fifty years of free exercise law harking back to the days of protecting school children from forced flag salutes. That very case, however, opened up a supplementary security, namely so-called “hybrid” interests. The salute case, though concurring justices focused on religious freedom, is often seen as a freedom of thought case. [Religious speech and association has received much attention of late, sometimes in opinions that forget that the First Amendment treats religion different than other matters ... including when speech (e.g., a prayer) ... is involved.]
And, this very case can be seen as an equal protection case -- why should peyote receive special protection? The ruling suggested the government’s interests were debatable, so the “compelling interest” test of the statute was not met. I would argue the discrimination was in fact basically arbitrary. Anyway, applying the law to the states might result in too much micromanaging, so perhaps a healthy respect of religious equality and so forth will deal with most serious state violations of religious freedom. Justice Alito might help in this department.
** A recent Slate fray discussion suggests that various progressives are not big fans of Jefferson, seen as hypocritical and not respectful enough of judicial review. As I noted at the time, this is a bit exaggerated, and suitable criticism need not slip into hypercriticism.