About Me

My photo
This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, November 27, 2009

"arrogance cloaked in humility"

And Also: Glenn Greenwald today notes how someone argues that it is strange to be "disappointed" by Obama's civil liberties record. But, we should have been on guard already, even if we opposed what was happening. Given his switch on immunity alone, which GG himself strongly opposed at the time, disappointment (as compared to strong opposition) on some level is downright naive.


[I referenced a slightly different version of this before, but added a few things and provide it for easier access.]

Justice Scalia is to be respected for going out of his way to debate those who disagree with him, including opening up his book analyzing his interpretative technique to critical analysis to historians and liberal law professors or debating Justice Breyer (who has his own book, but no critical commentary attached to it) recently in a meeting broadcast on C-SPAN (and available on its website). Too often, the likes of Justice Kennedy writes an opinion that does not answer the arguments of the dissent, or even do some job facing up to them.

Justice Scalia's debates with a continual line of justices (Brennan, O'Connor, Stevens are favorites, Stevens/Scalia still often sniping at each other in separate concurring opinions) provide a great service, even if you think one or the other side make poor arguments. This includes his bluntness, pointing out things that some justices rather left unsaid. All the same, again, this does not mean his arguments are always soundly reasoned. In fact, Scalia in his most bombastic moments partakes in what Justice Brennan (challenging Attorney General Meese) once called some orginalist's "arrogance cloaked as humility."

I must admit this is one of the less enjoyable aspects of those who argue for this type of constitutional analysis. They, we are assured (mixing that arrogance with disdain), are not like "living constitutionalists," who make things up as they go along to promote their own desired policy goals. They are restrained by what the Constitution was originally understood to mean (the nuances of how to translate this can be as tedious as medieval theology), which avoids "judicial activism." As the link above claims:
At the end of the day, Justice Brennan’s primary concern was that the text of the Constitution be construed to produce what he deemed to be good consequences.

IOW, Brennan et. al. was not concerned with interpreting that actual Constitution, but some idealized version of it, unlike Justice Scalia et. al. who are loyal to the actual text and original understanding. However, the critics too often sound like they themselves want to promote certain "good consequences," such as avoiding judges from having too much discretion. Consider:
Justice Brennan’s final error was that he raised the level of generality of the Constitution in order to justify his desired leftwing outcomes. He described the Bill of Rights as protecting human dignity, for example, and then asked whether the death penalty is compatible with human dignity.

The author, like Scalia, says, wait a minute! The Constitution does not say "human dignity," but "cruel and unusual punishment." But, what does that phrase mean? What was the original meaning and intent behind such words? Well, yes, in part to promote human dignity. So, when you interpret it, you need to keep that in mind. It is not as if that is all he used. For instance, his opinion in Furman v. Georgia provided an extended analysis of the amendment, with history, precedent and so forth discussed. He might have been supportive of "human dignity," but he used constitutional analysis to promote it. And, this requires analysis of a text with a lot of generality.

[This does not mind that Brennan, any less than Breyer at certain points (see below), did not at various times become too single focus, colored by certain ends over analysis of a document that requires balancing others as well. But, this applies to many people. The arrogance here is being selective, tossing stones in glasshouses, one might say.]

And, the critique notes that the Constitution does not promote broad principles like "dignity," but particular securities such as free speech and the right to counsel. But, not only are the specific protections rather general (cf. state constitutions that have a lot more verbiage to discuss freedom of speech etc.) but others are very open-ended. The upcoming oral argument to determine if "privileges or immunities of citizenship" includes the right to own a firearm underlines the point. When faced with such open-ended provisions, provisions that the FRAMERS spoke about in open-ended terms, people like Justice Scalia (and Justice Black before him) in effect ignore them:
The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.

Cf. Justice Thomas' opinion that actually realizes that something like the right to raise your children is a right protected by the Constitution, one that in part was intended to be secured in part by judges. In fact, and this is one reason why I'm with Souter in saying that it's okay to use "originalism" as long as you do not expect too much out of it, it is not like originalism necessarily leads to conservative or Scalia-like outcomes (to the extent they do not overlap). A progressive can use original understanding as well, see also, Justice Stevens' dissent in Heller. The failure to recognize this fact provides an additional factor -- delusion.

Overall, what if it was intended for the Constitution to have open-ended terms that have a core meaning but whose specific meanings develop over time? In fact, when writing the Constitution, as Jack Rakove noted in his award winning book,* this very principle was in the mind of those who wrote the final draft. And, this is what the original public meaning of the document held. Thus, James Madison himself accepted public understanding that the Bank of the U.S. was constitutional, even though he at first argued it was not. There was play in the joints, the matter was discussed and examined, and the weight of experience went in a certain direction:
"Congress, the President, the Supreme Court, and (most importantly, by failing to use their amending power) the American people had for two decades accepted the existence and made use of the services of the First Bank," and he viewed this widespread acceptance as "a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning."

But, a problem with some who cite original understanding -- a bit too often with a chip on their shoulder -- is that they are selective about it. They cite certain bits of original understanding, certain advocates and claim that this means that one specific viewpoint is compelled. A justice who respects such original understanding as part of determining constitutional meaning along with years of precedent and current understanding of the text and principles set forth is wrong to deny the clear command of this selective round-up. They are not themselves choosing this viewpoint, mind you, it is what the original understanding set forth. This is so even if an examination of things on their own terms can result on something quite different. [Substantive Due Process is a prime example.]

Thus, I debated someone, and get cites of Franklin Pierce, Grover Cleveland, and one of FDR's brain trusters to challenge my understanding of constitutional principles.** When we recall that Hamilton and Madison debated what the Constitution means, citations like these simply have little weight in the end. Suffice to say many at the time had competing views. BTW, The Federalist Papers is not a great source either -- they were a series of op-ed articles that selectively discussed the Constitution, and reliance on them is akin to citing op-ed articles by two legislators defending some referendum they want passed.

It is even worse when the citations are poorly done, as when Scalia cites George Washington saying something religious in a speech to justify prayers in public school graduations or John Harlan's dissent in Plessy v. Ferguson is cited to show how obvious Brown v. Bd. is when John Harlan himself accepted not only school segregation but interracial marriage bans. Just on a pragmatic level, experience shows that originalists are not much more restrained or accurate in their analysis than those who do not rely on original understanding as a primary source.

I would end with a query on if original understanding as such is really Scalia's goal here. At times, it seems he uses it as a means to an end -- as a restraint on judicial discretion, a way to promote his desire for clear rules and distaste for determining things like legislative intent (resting on the original understanding of the community who ratified helps avoid this). But, he is supposed to be interpreting the law here. Sometimes, you have to examine legislative intent in hard cases, sometimes you have to interpret open-ended constitutional text that can very reasonably be said to develop over time, even if this seems too vague and discretionary to some people.

On this, Scalia's sometime nemesis -- Justice Breyer -- might be a fitting last word:
I see no test-related substitute for the exercise of legal judgment. That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court’s prior tests provide useful guideposts–and might well lead to the same result the Court reaches today, –no exact formula can dictate a resolution to such fact-intensive cases.

Some ridicule Breyer's approach, claiming that they do so tied down by original understanding. Too often, this is arrogance (with a bit of delusion too) cloaked as humility.

---

* Original Meanings: Politics and Ideas in the Making of the Constitution notes that Edmund Randolph gave the committee of detail (some appear to think each word of the Constitution was debated and thought about in detail by each Framer in detail when in fact broad principles were while most of the final language was written late in the day and agreed upon without much more debate) this advice:
In the draught of a fundamental constitution, two things deserve attention:

1. To insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events. and

2. To use simple and precise language, and general propositions, according to the example of the (several) constitutions of the several states. (For the construction of a constitution of necessarrily [sic] differs from that of law.)

IOW, sometimes "general propositions" would be used in which "essential principles" are reaffirmed, but not in terms so narrow and exact that there would be no play in the joints as specific application will not change as the times change. Chief Justice Marshall spoke of this principle in respect of congressional powers but it also applies to the document as a whole.

** I still laugh at this -- Franklin Pierce? Even an originalist is better off not citing that guy. The brain truster apparently (I saw the reference in another originalist account) is something of a common trope. He argued the New Deal in effect ran against to the limited powers of the Constitution. A bit of digging, often useful, suggests this guy is far from typical.

Apparently, all the others who disagreed, along with the judges et. al. are to be ignored. Their sentiments are curiously not cited with so much weight. It is as nifty as those who cite post-New Deal disrespect of property rights, ignoring all the other rights disrespected in the alleged Golden Age.