The Proud Duck

Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

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Thursday, March 16, 2006
Supreme Court Justice Ruth Bader Ginsburg recently gave a speech in South Africa, defending her innovation of looking to foreign law in interpreting questions arising under the U.S. Constitution.

Leaving aside the soundness of her argument (I think it stinks; that's a long argument for another day), she displayed a pettiness towards those who disagree that is unworthy of a judge, let alone a member of the Supreme Court. She stated that she'd been alerted to a post on a radical website where someone had suggested -- possibly even seriously -- that she should be done away with in order to save American democracy. She also stated that Justice Roger Taney, in his infamous Dred Scott decision (which created out of nothing a constitutional principle that the government had no right to restrict the spread of slavery) had criticized the use of foreign precedent.

That's called "guilt by association." It's shoddy logic and it displays deep bad faith and contempt for civil debate. But let's play along, shall we?

Justice Ginsburg is a constitutional nonoriginalist -- that is, she believes that in interpreting the Constitution, she believes she is not bound by what the Constitution's actual text actually meant to the people who wrote it, but rather than she may substitute her ideology for the clear original meaning of the text.

I reject this, for a fairly simple reason: I believe, with the Declaration of Independence, that governments derive their just powers from the consent of the governed. It follows that a provision of the Constitution derives its authority from the fact that it represents an expression of the consent of the people who selected the representatives who drafted it, to be governed according to that provision. It continues to have its authority by virtue of the fact that we continue to consent to be governed by it, rather than exercising our democratic right to change or abolish it.

But if a judge substitutes her judgment for the plain text that was actually consented to, the chain of consent is broken: There has been no popular consent to be governed by the new "interpretation" (in practice, often strained sophistry that cannot honestly be said to be one of multiple reasonable interpretations of what the text actually means.)

That would be the short version of my counterargument. It's the one I would make, because I believe one's opponents deserve a good-faith, reasoned rebuttal. If I were Justice Ginsburg, on the other hand, I might just point out that she's a nonoriginalist, and Justice Taney was a nonoriginalist (the Dred Scott decision being based on Justice Taney's racist philosophy rather than on any specific provision of the Constitution's text), and therefore she's just as shabby as Taney. But that wouldn't be fair.

As far as the nutcase website that called for Justice Ginsburg to get the Pelican Brief treatment, I could just as easily point to the posters on the popular left-wing website, who presumably sympathize with Justice Ginsburg's nonoriginalist philosophy as long as it advances their politics, and thus tar her by association with people who've also advocated political violence.

In my first law firm, there was a liberal paralegal who took part in protest marches organized by International ANSWER, whose organizers include old-school Stalinists. That's one difference between (many) liberals and me: They have no problem associating themselves with making alliances of convenience with supporters of totalitarianism, while I (and most of the people who share my political thinking) wouldn't even consider joining in, say, an anti-tax protest if it were organized by neo-Nazis or the like.

And that leads this meandering rant to the upcoming movie "V for Vendetta," a comic-book action movie set in a dystopian near-future fascist London. It's clear that the filmmakers (the Wachowski brothers) are suggesting that the society portrayed is a possible outcome of present American politics -- the premise is that the government has used the threat of terrorism, as "America's war" grows worse and worse, to suspend all liberties and set up a "faith-based" dictatorship.

Sheesh. At least when Joe McCarthy went around darkly suggesting that his political opponents were in league with totalitarians, there were real live Stalinists mucking about. These guys seriously think that their opponents want to set up a dictatorship -- based, I suppose, on hyperventilations about liberty dying because the FBI can ask a library if Ahmed Death-to-America Shahid checked out a book on How To Make A Bomb With Six Household Chemicals.

Fine, it's a movie -- but lots of people honestly think (if "think" can fairly describe the random electrical activity caroming around their skulls) that there's something to it.


"Justice Ginsburg is a constitutional nonoriginalist -- that is, she believes that in interpreting the Constitution, she believes she is not bound by what the Constitution's actual text actually meant to the people who wrote it, but rather than she may substitute her ideology for the clear original meaning of the text." Wrong. That is not what a nonoriginalist means . . . since there is no such term and she wouldn't class herself as such is another matter - but an originalist seeks meaning in the words based upon OTHER writings outside of the constitution, always manipulated to fit our own biases. If you don't believe this, then read Jefferson and his very negative views about religion, and compare those to a "originalist" like Scalia.

By Anonymous Anonymous, at 2:51 PM  

I imagine Justice Ginsburg wouldn't think of herself as a "non-originalist." I'm not sure if there is an accepted name for her judicial philosophy, but those who hold it often refer to their belief in a "living constitution" whose meaning changes over time without any express changes to the text. I don't think that's an unfair description of that philosophy. I call it "nonoriginalism," for lack of a generally-accepted term because it is expressly and by its own admission opposed to originalism.

I suppose it's true that even the best of us can't completely purge our minds of our biases, and make a perfectly objective reading of a text -- but people should at least try.

Sometimes, the text is clear enough that the meaning is obvious. When it's ambiguous, there are canons of statutory interpretation that can clear some things up; if there's still ambiguity, you can look to the writings of the drafters to try and see what they were trying to say.

What you shouldn't do -- because it has no bearing on what the words actually mean -- is go to "other writings outside the constitution" (for example, foreign law enacted subsequent to the relevant constitutional text, as Justice Ginsburg advocates doing). That IS a classic case of manipulating the law to fit your biases. The bottom line is that a judge applying the law draws on a "reservoir of consent" -- the legitimate authority that comes from a popular decision to be bound by certain rules. A judge who goes beyond what the enacters of a law can reasonably be understood to have agreed to is acting extrademocratically.

What do Jefferson's views on religion (more complex than you suggest, by the way; he used to attend religious services in the Capitol, and believed religion was a support to public morality even as he pursued his own idiosyncratic religious philosophy) have to do with the Constitution? Jefferson wasn't even present at the Convention. His take on the Establishment Clause ("separation of church and state") was expressed in a private letter, entitled to no more constitutional weight than my blog should have on Justice Ginsburg.

Could you identify a case in which Justice Scalia has improperly substituted extra-constitutional writings for the plain meaning of a constitutional text?

By Blogger Thomas, at 4:24 PM  

It's WHO Scalia chooses as his extra-constitutional sources. I can choose Jefferson (who contemporaneously wrote the Virginia Statute for Religious Freedom which was the basis of the Establishment Clause of the First Amendment of the United States Constitution and was THE principal author of the Declaration of Independence) and reach a conclusion on the meaning of the establishment clause BASED UPON those writings and his OTHER writings during that time that Scalia would reject.

If you would like specific examples of Scalia's religious COUNTRY leanings, you can find them in EVERY single case on religion he's ever written.

By Anonymous Anonymous, at 4:39 PM  

Frankly, I think Jefferson's view of the proper relationship between church and state is a lot closer to Scalia's than the present strict separation. Jefferson believed that religion played an important role in maintaining social morality (even as he himself disbelieved in most or all of religion's supernatural aspects) and accordingly believed that government should encourage it -- though not "establish" it.

Contrast that with the present strict-separationist regime. I think it goes far beyond even what Jefferson would have proposed.

I believe that "establishment of religion" had a particular meaning to the people who wrote a prohibition of it into the Constitution. It meant that the government may not set up an established church, as existed (and still exists) in England, Germany, Scandinavia, and other countries. In my considered view, there is not enough ambiguity in the Framers' selection of the term "establishment" to justify using Jefferson's personal writings, especially since he wasn't even among the drafters.

(On the other hand, to be fair, Madison was, and his advocacy of a stricter separation than was actually written into the Constitution was close to Jefferson's; that said, Madison's separationist language didn't wind up in the final text.)

"Scalia's religious COUNTRY leanings"? Extraordinary claims require extraordinary evidence. I haven't seen anything in Scalia's opinions that indicates that he favors an establishment of religion.

By Blogger Thomas, at 5:22 PM  

When are you going to write more? Please do! Your ideas are brilliant!

By Anonymous Anonymous, at 7:45 PM  

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