Q: How many eggs do French people like to have for breakfast?
A: One is an oeuf.
Hilarious! That’s about the quality of Jonah Goldberg’s recent posting at NRO, titled “Close Encounters with a ‘Living Constitution'”.
Here’s the setup. Goldberg orders an Arizona Omelet at the diner, the Red Flame. But the server brings him a bowl of oatmeal. When Goldberg objects that he didn’t order this, the server replies that he, in fact, did order the oatmeal.
“This is oatmeal,†I’d say. “The menu says that the Arizona Omelet has cheese and onions and jalapenos in it. It also says it’s an omelet.â€
Waitress: “Well, we here at the Red Flame believe that the menu is a living, breathing document that changes with the times. Oatmeal is healthier than an omelet, and we feel that people should eat more of it. So, we only serve oatmeal, but we call it by different names.â€
The point, as we see, given the analogy, is that taking X as a ‘living document’ is just to impose one’s will on the document. Words don’t mean what they mean at all. Or they mean what we just want them to mean. And here’s how Goldberg sees the plausibility of this line of thought:
That’s more like how the doctrine of the “Living Constitution†works in real life. A judge makes a small leap of interpretation that seems reasonable — say, replacing onions with shallots, which after all, are a kind of onion. Then the next judge makes another incremental hop in interpretation. And then another. And another. Until eventually the waitress brings me the head of Alfredo Garcia
There are some issues where I think liberals have a sincerely held, rational, and legitimate point of view that I simply disagree with. But the doctrine of the Living Constitution is not one of them.
We’re taking lessons on language from a guy who, in promoting himself as an expert on fascism, argued that “the only reason [Mussolini] got dubbed a fascist and therefore a right-winger is because he supported World War I”. Is it fair to go after the low-hanging fruit? 😉
http://www.salon.com/2008/01/11/goldberg_2/
But I want to be fair to him, so let’s focus on the article under discussion.
Another man might realize that he could use a piece of paper towel to open the door, but perhaps at his Michelin starred breakfast joints there is a restroom attendant who literally forces him to touch the handle, but that’s fodder for a five-day-old thread. So… what is important right now?
Oh yes, the “living Constitution” is important right now. But not for any reasons you’re going to discern from Goldberg’s piece. If you get past the hand-waving, you might even question whether Goldberg understands the Constitution well enough to know to what he is actually objecting.
During the oral argument of a Supreme Court case a few years ago, after Justice Scalia asked a series of questions about restrictions on the sale of video games to minors under the language of the First Amendment, Justice Alito quipped, “Well, I think what Justice Scalia wants to know is what James Madison thought about video games? Did he enjoy them?” Alito later expressed that video games “couldn’t have been envisioned when the First Amendment was adopted”. I guess Alito’s one of those liberals who just doesn’t get how, upon review of constitutional questions, originalism and textualism bring us all of the answers we need.
I caught the whole of “The New Yorker Radio Hour” on NPR yesterday (I was of course driving). The first part of the first segment, an interview with staff writer and Harvard historian Jill Lepore, featured her giving an even worse version of the “living constitution” straw man: “you find (the right to privacy) in the spaces between the words (giggle giggle).” The giggle giggle makes this perhaps a case of modus tonens.
I can’t find a transcript, but here’s an audio link: http://www.wnyc.org/story/neil-gorsuch-and-uses-history/
Hi Aaron, Thanks for the comment! To the points.
1. Agreed about Goldberg’s penchant for hyperbole. Like so many, there are moments when he forgets his analogies are analogies.
2. The bathroom line was just weird. Seriously, the paper towel thing is something every adult knows.
3. Do you read the Alito line about Madison’s view of video games as a kind of reductio ad absurdum of originalism? (Or, perhaps more accurately, reductio ad ridiculum?)
Hi John,
I think that it’s right that often straw man representations of an opposition view is coincident with a modus tonens. When you present the view as so obviously bad, you don’t need to do the work of criticism. You just change your voice or laugh out loud.
I suspect that Justice Alito saw an opportunity to make a joke, and didn’t expect that it would inspire pretty much everybody in the room (other than Justice Scalia) to laugh. Although it has that effect, I don’t think that Alito intended to overtly challenge Scalia’s brand of originalism, only the degree to which Scalia seemed to be pressing the issue.
Part of the difficulty of speaking of a “living constitution” is that there is no clear consensus on what that phrase means. One person might speak of the constitution being a “living” document by pointing to language that allows for broad, contemporary interpretation — for example, the “necessary and proper” clause. Another might point to the manner in which concepts like “interstate commerce”, and Congress’s power to regulate interstate commerce, have changed over the past two centuries — and while there is disagreement over the limits of what should or should not be deemed to affect interstate commerce, there’s little argument that we could or should try to impose a 19th century conception of interstate commerce to a modern society. Another might argue that where you cannot reasonably determine what a specific word or phrase was intended to mean, you can legitimately consider how various interpretations of the language will impact government and society when determining how the phrase should be interpreted and applied. Obviously, no serious person is suggesting the equivalent of “eggs” can mean “oatmeal”.
One of the faults of textualism is that you often can’t discern meaning from the text alone — and you can’t simply turn to a modern dictionary as the use and meaning of language evolves over time. One of the faults of originalism is that, although it attempts to interpret the Constitution’s language as it was originally intended, you often cannot know what was originally intended by the language or your best effort may still leave you with more than one plausible interpretation, and even if you can reach unanimous agreement about what a constitutional provision was originally intended to mean, that can still leave you with having to guess how the framers would have intended that the language be applied to something that they could not possibly have anticipated.
Another factor that people like Goldberg like to gloss over is that constitutional interpretation has a political element. Scalia was an originalist, except when he wasn’t — Scalia loved sovereign immunity and as a justice he expanded its application, but for all of my looking I cannot find any mention of sovereign immunity in the Constitution.
Law schools have historically used the Natural-born citizen clause of the Constitution to show some of the problems of originalism and textualism. “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President”. For purposes of illustration, a law professor might ask whether MacBeth (if born in the U.S.) would have been a “natural born citizen”, given that he “was from his mother’s womb untimely ripped”. In recent years, that clause has been implicated in relation to President Obama (under the odd fantasy that his mother was so certain that her biracial baby, named Barack Hussein Obama, would become President that she faked a U.S. birth certificate), Ted Cruz (born in Canada), and John McCain (born at an Air Force base outside of the U.S.), and earlier in relation to George Romney (born to U.S. Citizen parents in Mexico).
The long and the short of it is that there is no single approach to constitutional interpretation that is going to provide all of the answers. The justice who most consistently applies his preferred judicial philosophy is Justice Thomas, and it says something that as a result he often finds himself dissenting from his fellow conserative justices.
Regarding @John and the Jill Lepore interview, it is interesting commentary. I have a different theory on the reason why originalism has strong roots in the U.S. as compared to Canada and Australia. The U.S. moved away from the Common Law tradition of judge-made law, in favor of legislation. I think that originalism emerged from that skepticism of the traditional role of judges, combined with the consequent need of judges to apply rules of statutory construction to legislative acts.
The Gorsuch comments on legal history, mentioned in the interview, reflect a level of candor that I don’t often see from the political right — specifically, the extent to which history as stated in court opinions is usually a selective, self-serving, cherry-picked history, not an attempt to fully or accurately interpret the historical record. That use of history makes me question to some degree Lepore’s suggestion that judges and justices don’t pick their authority to suit a desired outcome. I don’t want to overstate the argument that judges start with a desired outcome and work backwards, but in some close cases and highly political cases it is difficult for me to believe that some of the more dubious historical or legal arguments that support a court’s decisions are made entirely in good faith.
Good points Aaron. You’re certainly right that there were some interesting bits to the Lepore segment (beside her regrettable dismissal of the penumbral rights) and I much appreciate your analysis of the difficulties of legal hermeneutics. Part of the difficulty there, I think, is that, when it comes to interpretive strategies, it’s turtles all the way down.
To me, I think the issue of there being a right to privacy (includnig reproductive privacy) that can be protected from intrusion by the Supreme Court should involve a much more straightforward analysis: Start with Hamilton’s argument in the Federalist Papers, that a Bill of Rights should be unnecessary, could give the government a pretext for claiming power not granted to it by the Constitution, move on to Madison’s concern that listing rights would lead to the erroneous conclusion that only the rights enumerated in the Bill of Rights were protected, then point to the 9th Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
To those who might argue that if a right is not enumerated in the Bill of Rights its alleged violation is not subject to Supreme Court review, the response could go back to the philosophies articulated in the Federalist Papers — that the Constitution creates a limited government that can act only within the confines of the powers granted to it by the Constitution, that the Constitution does not grant rights — these are the natural rights of man. The argument is thus that the Supreme Court is not being asked to protect the right that is not described in the Constitution, but to stop the government from taking action in unreasonable infringment of a natural right despite its being granted no authority to do so by the Constitution.
But… people on both sides of the issue seem to prefer more complex and convoluted arguments that leave open the notion that Supreme Court decisions like Roe vs. Wade “create” rights, or that if a right is not explcit in the text of the Constitution or Bill of Rights it is somehow illegitimate for the Supreme Court to either recognize the right or protect it from government overreach.
Hey Aaron, using the Federalist Papers is a good strategy, even as an internal argument with the Originalists, since a standard thought is that preambles set the stage for what the problem is and what the spirit of the solution is. If the FPs are supposed to represent what Madison and Hamilton thought they were doing with the Constitution, then it’s not only fair game, but significant evidence.