Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.The contours of this "liberal construction" of the Necessary and Proper Clause was a matter of some debate during the PPACA dispute, among other things, but my focus here is the "spirit of the Constitution."
-- McCulloch v. Maryland*
This is a rather open-ended term and some think it is abused, particularly some with a liberal bent. For instance, I am skimming Ronald Dworkin's Freedom's Law (I have not tried to read his more deep philosophical musings; overall, some good stuff, but no need to go as far as he does in some cases) again ... he would be a poster boy. BTW, one review said his "white whale" is Romney's boy Bork. Yes, that Robert Bork, poster boy of originalism of the sneering variety. Again, Romney ... no.
But, a discussion on the originalism of affirmative action (again, go by my email name) led to another name -- Scalia. A word on that discussion, see also Scotusblog's discussion of Fisher v. Texas. The brief in question argues that Reconstruction Era federal policies shows that race conscious policies are allowed but the reply there is that state policies are different. Eh. The Supreme Court doesn't treat them different these days really, so if an argument is made (the case there is easy though; it's a small victory) that race can be used, it would be an important victory for that side. So, the criticism there for that (any other reasons; e.g., supposition that the Framers would not trust black friendly state legislatures with certain policies also is just that, supposition) doesn't do much for me.
Finally, the Fourteenth Amendment DOES apply to the federal government too -- the Citizenship Clause established that all persons, not just whites, are citizens of this country and a specific state pursuant to certain guidelines. In the Federalist, Madison noted that slaves are denied an equal role in respect to representation but that once slavery is done, this was no longer the case. It was understood by many that the Thirteenth Amendment in some fashion (how much was unclear, thus the felt need of the 14A to clarify the legitimacy of certain federal policies) changed the status of former slaves, including badges and incidents of slavery that lingered on as applied to free blacks of the era.**
Underlying all of those decisions is the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race. All citizens are equal before the law. The guaranties of life, liberty, and property are for all persons, within the jurisdiction of the United States, or of any state, without discrimination against any because of their race.Bolling v. Sharpe applied the principles of Brown v. Bd. to the federal government, even without an express "federal equal protection clause," in part citing this 1896 precedent. Thus, it is wrong, as some claim, that it was in effect merely a "living constitution" approach that had no deep origins. The Supreme Court, unanimously, signed on to an opinion just around the time of Plessy that in effect that substantive due process as applied to the federal government included an equal protection component. I think the above is the start of an "originalist" argument on why -- the end of slavery, the Citizenship Clause and the "spirit" behind such things put blacks on a more equal footing, and this "liberty" was now the "law of the land" for Fifth Amendment purposes.
I would not merely rely on such things -- I'm not an originalist -- and think it clear that part of the point is that changing understandings of what "liberty" entailed and so forth factors in. Still, since the Constitution does not expressly say the federal government should treat people equally the same way the Fourteenth Amendment does, where do originalists like Scalia and Thomas get the idea that various affirmative action programs set in place by Congress are unconstitutional? The USSC ruling cited that evenly applies the principles (changing past understanding, which gave more, not unlimited, discretion to the federal government) did not rest on originalism. But, Scalia and Thomas concurred, citing "the Constitution's focus upon the individual" and "the principle of inherent equality that underlies and infuses our Constitution."
When the question is abortion or euthanasia, Scalia -- contra to the majority -- argues strongly that "the Constitution says nothing about the matter," which rulings like Griswold and Casey just as strongly shows is wrong. Dworkin criticizes such a limited view of the Constitution, but misses the larger point. If originalism is going to rest on such broad principles, which hey, I'm willing to take seriously (up to a point), why again is abortion not covered by it? The fact that the Constitution specifically does things like stop titles of nobility or the somewhat obscure Art. I, sec. 10 (a free lollypop to those who know what's in there ... when I get some) provisions is one thing. Saying such things are "an acknowledgment" to some larger principle is quite another. See also, how the "spirit" or something, of the Constitution stops Congress from requiring state officials to carry out enumerated powers or even (I'm off the bus here) blocks suits against states to protect such powers (e.g., a trademark dispute with a state university, not with someone from another state as the express words of the 11A covers).
Of course, back to the PPACA, we have the selective principle that Congress cannot require people to do things pursuant to its enumerated powers. I can understand why Justice Kennedy supports such open-ended spirits (Dworkin in the book noted at the time how much Kennedy was different in this respect than Bork, citing as an example AK's respect of gay rights, and boy did it come to pass), but not my man Scalia with his new book on the importance of "text" and all! Apparently, what the Constitution "says" is akin to the person who recently told me "Democrats" reject the RKBA, even when their platform supports the 2A because it says we should enforce current laws, strengthen laws regarding gun shows and re-authorize assault weapon bans (a trivial matter, to be honest, given the narrow reach, so really, it's more gimmick if perhaps of some small value). The Republican platform supports Heller (which allows regulations), only opposes "frivolous" lawsuits and promotes safe use of guns, but the Democratic platform is a sort of code -- the use of the term "reasonable regulation," contra support of millions of Democratic gun owners and the fact Obama only signed legislation expanding gun rights shows they really are "saying" the opposite.***
Bottom line, a consistent application of the principles behind the originalists (so labeled) who oppose federal based affirmative action would have a broad reach. It is notable that the actual concurrences cited above are rather thin gruel. Admittedly, if you go too deep here, you do run into problems, as the brief sort of shows. It's like a originalist support of Brown v. Bd (McConnell) that historical analysis shows to be faulty. The case can be interesting to read, but a full fledged and consistent approach is not something consistently shown by our Republican heroes here (Scalia and Thomas) while the people they are more wary about (O'Connor and now Kennedy) were always faint hearted originalists.
But, so are many more.
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* The single footnote (not present in the Lexis version, nor is the case to my knowledge) references a case. A discussion I found suggests how his arguments, ex cathredra they might have been, are open to argument:
Chief Justice Marshall referenced a Connecticut case, Montague v. Richardson, to explain his interpretation of the Tenth Amendment as being similar to a judge's construction of a particular state statute: "A pension is a bounty for past services rendered to the public. It is mainly designed to assist the pensioner in providing for his daily wants. Statutes protecting his interest in it, until so used, are of a remedial nature and entitled to a liberal construction."The case might say more, but "a liberal construction" is pretty vague.
** I covered this ground in the past, but simply put, see, e.g., the works of Alexander Tsesis.
*** But an example, but see the thread in the Volokh Conspiracy post on how Democrats are going backward on "civil liberties," which actually is about national security issues (as the biased author there rephrased in comments), and "abandoning" here means "not forward enough" in certain areas. I think I covered this already, though.