US Constitution - Originalism vs. Living Constitutionalism

[glennds]

There is some discussion in the other thread that gets into the basic conflict between Originalism and Living Constitutionalism. The current conservative SCOTUS is clearly deep in the Originalism ideological camp. This is illustrated in Alito's majority opinion in the Dobbs decision, and even more so in Thomas' concurring opinion.

Originalists interpret the Constitution quite literally based on their belief of what the Framers intended at the time it was adopted in 1789, and the same with regard to Amendments. Justice Antonin Scalia was a well known proponent of Originalism.

Living Constitutionalists believe the Constitution was always intended to be a living document that evolves to reflect societal changes and to deal with how incomplete and abstract many of the provisions are as written. A famous Living Constitutionalist would be Justice Thurgood Marshall.

Originalism works really well in cases where the Constitution is unambiguous i.e. " Senate of the United States shall be composed of two Senators from each State".
Where it gets grey is when we get into clauses like "Due Process", "Equal Protection", "Commerce". Equal Protection at one time meant segregation under Separate but Equal doctrine. And then in 1954, the same Equal Protection clause held segregation in schools to be unconstitutional.

Maybe an Originalist might have said the conclusion of the 1954 Brown v. Board of Education required an Amendment because absent an Amendment, the meaning of a Constitutional provision should not "change".
Or another Originalist might have said that segregation was always unconstitutional under the 14th Amendment and the Plessy separate but equal ruling was simply wrong (although if this were the case, then it raises a question about why racial segregation was the norm at the time the 14th Amendment was adopted in 1868 - a question to which I have never heard a reasonable answer).

Below I link to two separate essays, each making a very compelling case for each ideology. Maybe you will find them both worth a read. The preferred ideology is for you to decide for yourself. And then there are offshoots of both ideologies with subtle and not so subtle differences, not unlike religion denominations.
Either way it looks clear that in the near and medium term, we are likely to see an escalated level of Originalist judicial activism at the SCOTUS level which will continue to undo and send back to states what had previously been considered settled law. And SCOTUS probably has the final word since Congress looks to be too dysfunctional to be of much help (i.e. Amendment or other Federal legislation).

Originalism: https://constitutioncenter.org/interact ... rpretation

Living Constitutionalism: https://constitutioncenter.org/interact ... utionalism

I'm not advocating for one over the other. In fact, like so many things in US politics, I happen to think the right answer is somewhere in the middle. But the subject is worth some thought and will surely be at the root of a lot of societal controversy yet to come. Interested in your thoughts.

[I Shrugged]

Deep down, people want benevolent monarchs. That’s what a living constitution Supreme court is. That’s why so many people like it. It takes the place of the messy, aggravating Congress and President, and those awful elections.

Tell me I’m wrong.

[jalanlong]

I do not agree that it will be a societal conversation because I do not believe people of either party like to get bogged down into principals. Having a principled belief system can lead a person to outcomes they may not necessarily find palatable. And one thing that most Americans (especially partisan ones) care about most now is getting their desired outcome. They do not care how they got there logically.

One of the more fun things about being a Libertarian is watching Team Red and Team Blue constantly flip-flop on their stated principals in order to get the outcome they desire. Democrats are all about "My Body My Choice" right now but they sure aren't on most everything else from vaccination mandates to soda taxes to the right to work for whatever wage you agree to work for. Republicans love to spout off about big government leaving them alone but they sure dont want that when it comes to legalizing drugs or prostitution. Both parties continually change their opinion on when a business should be forced to do something vs when it is a private company that can do what they wish. It all depends on the outcome they want.

Originalism may be a bit of a discussion now because of gun control. But in the future there most certainly will be another issue which will make members of both parties flip sides.

[Kbg]

+1 Truth

I love it when a Trumpian calls me a RINO...makes me giggle deep inside.

[I Shrugged]

The thing is, there is a way to change the constitution. Why do you want the the SC to do it? We already have lawmakers.

[Kbg]

This was from the Living Constitutionalist article, and I think is why it is generally the better route to force things to the legislative branch and particularly so on the "big stuff."

Stewart’s irony implies what any historian would affirm: although Supreme Court decisions exert immense authority, constitutional interpretations are truly and finally settled only when the people accept their wisdom, not simply when the Supreme Court speaks.

If the Court interprets the Constitution in ways that mistake the actual commitments of Americans, Americans will oppose its decisions. In the end, Alexis de Tocqueville, as in so many things, correctly perceived the nature of our constitutional polity when he observed that the “power” of Supreme Court justices:

Is immense, but it is power springing from opinion. [Justices] are all-powerful so long as the people consent to obey the law; they can do nothing when they scorn it. Now, of all powers, that of opinion is the hardest to use, for it is impossible to say exactly where its limits come. Often it is as dangerous to lag behind as to outstrip it. The federal judges therefore must not only be good citizens and men of education and integrity, qualities necessary for all magistrates, but must also be statesmen; they must know how to understand the spirit of the age, to confront those obstacles that can be overcome, and to steer out of the current when the tide threatens to carry them away, and with them the sovereignty of the Union and obedience to its laws.

I'm a big believer in the law and laws even if I don't like them and am opposed to some of them because no law is a bad place to be from my experience. However, at the end of the day a majority and preferably a large majority of the populace needs to be onboard or the system brakes down. Smart bad people, completely get this and use it to their advantage. It used to be you would see this more on the left, but to my personal chagrin you see it more on the right these days.

[Kbg]

The thing is, there is a way to change the constitution. Why do you want the the SC to do it? We already have lawmakers.

I assume you wrote this a little too quickly before thinking it through...you may want to read the references in the OP.

[I Shrugged]

The thing is, there is a way to change the constitution. Why do you want the the SC to do it? We already have lawmakers.

I assume you wrote this a little too quickly before thinking it through...you may want to read the references in the OP.

Nice passive aggressiveness. Not the first time. Why don't you stop worrying about how much thought I've put into something?

The whole line of thought is predicated on a lack of faith in the legislatures to "rule" on the issues. The legislatures are "the people's representatives", supposedly. An active court layers another de facto legislature onto the top. Yes, no doubt some good has come of it. But that doesn't make it the way to go. The blurring of roles, and the legislatures' abdication of their duties in favor of the courts assuming them, mean that the checks and balances are trashed.

It's true that the people are the ultimate check. If people don't like something, it won't last. In the USA at least, so far, at least. Again, that doesn't justify an active court.

[joypog]

David French just wrote an opinion piece about how our system is broken because the legislature has abdicated their duty / authority.

https://www.theatlantic.com/ideas/archi ... ip/670486/

[I Shrugged]

A lot of smart people prefer complex systems because they allow for finer optimization. But complex systems are fragile. And when you trust your well-being to them, failures can be spectacular. A living constitution system is one of those complex systems that smart people like.

Our elections are now complex systems too.

[glennds]

In his writings Thomas Jefferson revealed himself to be a living constitutionalist of sorts, but with a very different approach.

He thought it was inherently tyrannical for one generation to bind a future generation. So his idea was that the Constitution itself should expire every 19 years, 19 years representing a generation, and it would be for the successor generation to write and adopt its own Constitution.
And in doing so it would naturally respond to a future that was not known to the Framers and consider issues they had not i.e. "the progress of the human mind", "The earth belongs to the living, not the dead".

[Kbg]

The thing is, there is a way to change the constitution. Why do you want the the SC to do it? We already have lawmakers.

I assume you wrote this a little too quickly before thinking it through...you may want to read the references in the OP.

Nice passive aggressiveness. Not the first time. Why don't you stop worrying about how much thought I've put into something?

The whole line of thought is predicated on a lack of faith in the legislatures to "rule" on the issues. The legislatures are "the people's representatives", supposedly. An active court layers another de facto legislature onto the top. Yes, no doubt some good has come of it. But that doesn't make it the way to go. The blurring of roles, and the legislatures' abdication of their duties in favor of the courts assuming them, mean that the checks and balances are trashed.

It's true that the people are the ultimate check. If people don't like something, it won't last. In the USA at least, so far, at least. Again, that doesn't justify an active court.

How about some nice passive niceness? We are of the same basic philosophy in how it should work, but the court DOES provide a good check on the legislative when it passes unconstitutional laws which was my main point. Additionally, there ARE ambiguities in the constitution which someone needs to wade into and that would be the court's role if there is an ambiguity or a determination needs to be made on how a law is to be applied. Neither of the above are new concepts and both were discussed by the founding fathers.

Unfortunately, the fact is wealthy individuals and groups pay highly talented lawyers to develop legal theories and approaches to get around the intent of Congress or drive ambiguity toward their desired ends when Congress makes ambiguous law.

Having been in government a bit in my life I will tell you ambiguity is a political feature not an accident for a host of reasons.

[glennds]

There's a tangential issue implicit in the Originalist vs. Living Constitutionalist debate.
Namely Federalism vs. Anti-Federalism.

Look at the Dobbs decision. The effect of the ruling is not that abortion is illegal, it's that it is not constitutionally protected. So the issue is sent back to states to do as their legislatures decide. Politically speaking, this is an Anti-Federalist outcome. Let your fellow locals decide, not someone in Washington.

My point is there is a good degree of overlap (compatibility if you prefer) between Anti-Federalism, and Originalist doctrine, especially as it relates to (a narrower) interpretation of unenumerated rights.
But in the absence of a functioning Congress, where does this lead?
Keeping the Federal government rightly in check, or further wearing down the cohesion between states and heading down a partisan path toward conflict or civil war?

[I Shrugged]

I've always understood the concept of federalism to mean that the states are superior to the national government. Am I wrong? I know I can look it up, haha.

Well I just did. Scanning the first few entries tells me that it means power sharing between different units and the national government. Over the years, the people and institutions I've followed have used the term to mean more power to the states. As a practical matter, over my lifetime, more power to the states would be consistent with the generic definition.

[Xan]

I've always understood the concept of federalism to mean that the states are superior to the national government. Am I wrong? I know I can look it up, haha.

Well I just did. Scanning the first few entries tells me that it means power sharing between different units and the national government. Over the years, the people and institutions I've followed have used the term to mean more power to the states. As a practical matter, over my lifetime, more power to the states would be consistent with the generic definition.

In the context of "Federalism" vs "Anti-Federalism", Federalism means more power to the federal government, and Anti-Federalism means more power to the states. These were basically the two parties at the time shortly after the Constitution's passing.

In modern contexts, where the federal government has largely run roughshod over everything else, calls for "federalism" or a "return to federalism" are calls to devolve power back to the states, which is the historical Anti-Federalist position.

[glennds]

https://billofrightsinstitute.org/would ... federalist

[vnatale]

I've always understood the concept of federalism to mean that the states are superior to the national government. Am I wrong? I know I can look it up, haha.

Well I just did. Scanning the first few entries tells me that it means power sharing between different units and the national government. Over the years, the people and institutions I've followed have used the term to mean more power to the states. As a practical matter, over my lifetime, more power to the states would be consistent with the generic definition.

100% consistent with my experience.

Which is why I complained that "federalism" seemed oxymoronic.

One would think that it connotes that the Federal government retains the ultimate power yet in both my and your experience it is always used to mean that the states have the ultimate power.

[joypog]

I've always understood the concept of federalism to mean that the states are superior to the national government. Am I wrong? I know I can look it up, haha.

Well I just did. Scanning the first few entries tells me that it means power sharing between different units and the national government. Over the years, the people and institutions I've followed have used the term to mean more power to the states. As a practical matter, over my lifetime, more power to the states would be consistent with the generic definition.

In the context of "Federalism" vs "Anti-Federalism", Federalism means more power to the federal government, and Anti-Federalism means more power to the states. These were basically the two parties at the time shortly after the Constitution's passing.

In modern contexts, where the federal government has largely run roughshod over everything else, calls for "federalism" or a "return to federalism" are calls to devolve power back to the states, which is the historical Anti-Federalist position.

Interesting! Didn't realize it (always assumed Federalism = States rights).

Maybe the better phrasing nowadays is to accept Federalism as the states rights stance and then use "centralized" government to talk about Washing DC approach....?

[Xan]

Think of it this way: federalism is shared power between a central government and more local governments. So when the state governments had all the power and the federal government very little, the people who wanted "more federalism" were advocating for more federal power. But when you're on the other side of that, and the federal government has practically all the power with the states having relatively little, the people who want "more federalism" are the ones advocating for more state power.

[joypog]

OK makes sense! The balance has gone too far towards the central government, so federalism still means the same thing, but for an opposite effect.

I like the term even more now.

[glennds]

Just remember, the balance can tilt both ways. A state government is absolutely capable of being every bit as tyrannical, and even more so, than the Federal government. It's not as though one is inherently tyrannical and the other is not.

As an example, just look at the Jim Crow period where some states were restricting liberty and Federal legislation responded in order to stop it.
It's unthinkable to imagine interracial marriage being illegal today. But during my lifetime it absolutely was in certain states. The SCOTUS Loving case deemed that type of state restriction of liberty unconstitutional and from that ruling interracial marriage became legal in all states (although interestingly the way the Court applied the 14th Amendment in that case seems to be coming into question by the current Court).

I think it's an important balancing act and equally bad if it tilts too far in either direction. The point of this thread is that between a derelict Congress and the current tenor of SCOTUS, we'll probably see it tilt more and more toward state imposition of more authority over their citizens. Some may see this a good thing, and others not as much. Probably depends on the state and what they choose to do.

EDIT: we just had a new law pass in Arizona that makes it a crime for someone to record a video of a police stop, within an 8 foot distance. There are objections on the basis of liberty from some. Others say if you want to video, just stand back further than 8 feet and zoom in. Yet others say the cop can just move towards you and effectively make you stop, or arrest you for not stopping.
But since videography is not a specifically enumerated right in the Constitution, nor is it deeply rooted in the nation's history and traditions, I'd be surprised if this particular SCOTUS deemed it a Constitutional infringement. So the state may be within its legal rights to restrict that particular liberty unless Congress passed overriding Federal legislation.
I tend to support police, but within limits and accountability. There are already laws on the books that make it a crime to interfere with the police doing their job. To limit video restricts the citizen more than it protects the police, unless they have something to hide IMO.

[Kbg]

A point here is that more local generally means (is assumed?) more responsive, more focused on what maters locally and more aligned with actual constituents. I think this is generally true.

Unfortunately, I also belive the strength of the national political parties has done a number on the above. Really what a politician needs to be responsive to (mostly) is what the most active elements of the respective parties want.

I would be for just about anything that breaks this lock. The fact of the matter is the general voter doesn't have much of a choice in most states because general elections are by and large not competitive anymore.

Imagine a world of left leaning Rs in urban states and right leaning Ds in rural states...it's amazing that 250 years later the urban/rural dynamic is still a huge political split.

[jalanlong]

Look at the Dobbs decision. The effect of the ruling is not that abortion is illegal, it's that it is not constitutionally protected. So the issue is sent back to states to do as their legislatures decide. Politically speaking, this is an Anti-Federalist outcome. Let your fellow locals decide, not someone in Washington.

The point I have never understood is that there are a million things not specifically mentioned in the Constitution and therefore not "protected" by that logic. But certainly the framers did not intend for that to mean a state should be outlawing most of those unmentioned things? Would they have agreed with a state banning the sale of tea? Or buying a sofa on Wednesdays? Those are not enumerated in the Constitution right?

I wouldn't have thought that the original intent of leaving certain decisions to the state would have been a carte blanche check for states to run roughshod over their people. I guess that at least gives people the choice of which ruler they want to live under but given both sides penchant for authority of one sort or another, that does not leave great choices.

[Xan]

Look at the Dobbs decision. The effect of the ruling is not that abortion is illegal, it's that it is not constitutionally protected. So the issue is sent back to states to do as their legislatures decide. Politically speaking, this is an Anti-Federalist outcome. Let your fellow locals decide, not someone in Washington.

The point I have never understood is that there are a million things not specifically mentioned in the Constitution and therefore not "protected" by that logic. But certainly the framers did not intend for that to mean a state should be outlawing most of those unmentioned things? Would they have agreed with a state banning the sale of tea? Or buying a sofa on Wednesdays? Those are not enumerated in the Constitution right?

I wouldn't have thought that the original intent of leaving certain decisions to the state would have been a carte blanche check for states to run roughshod over their people. I guess that at least gives people the choice of which ruler they want to live under but given both sides penchant for authority of one sort or another, that does not leave great choices.

The several sovereign states set up a federal government to delegate certain powers to it. In particular, national defense. Foreign affairs generally. To regulate commerce between the states. The Bill of Rights is all about what the federal government CAN'T do. The idea of the Constitution being set up to give the federal government authority to tell the states what they can and can't do is exactly backwards.

[Kbg]

Serious question: What is tyranny?

I think in today's world many think it is the gubmint can't tell me to do anything I don't want to do. Is that what it is?