Judge Gorsuch Might Be a Liberal Originalist on the Supreme Court

Akhil Reed Amar, a Yale Law School professor and the author of “The Constitution Today: Timeless Lessons for the Issues of Our Era,” argues that not all devotees of “originalism” in interpreting the Constitution and statutes are what are ordinarily called conservatives and that Judge Neil Gorsuch might be a liberal member of this group.[1]

Originalists, the professor says, “believe that faithful constitutional interpreters must build on the solid bedrock of the Constitution’s text, as that text was originally understood when drafted and ratified.” However, he adds, “not all conservatives are originalists, nor are all originalists conservative. Most jurists, most of the time, follow modern judicial precedents rather than pondering first principles of constitutional text and history. Practical considerations also factor into most jurists’ decision making. Originalists are no different in this regard, but they are more apt to dwell on first principles of text and original meaning and to discard precedents violating these first principles.”

A group of “liberal originalist lawyers, the Constitutional Accountability Center, where I serve on the board of directors, has been particularly effective in bringing liberal originalist scholarship to judicial attention. This month, Justice Anthony M. Kennedy and four liberal colleagues [in Pena-Rodriguez v. Colorado.] strengthened rules against racial animus in jury deliberations” in reliance . . . on the Center’s amicus brief and the historical scholarship it showcased” by another Yale Law School professor.

This case demonstrated that “originalists must honor not just the original understanding of words ratified in 1787-88, but also the letter and spirit of language added by later generations of amenders.”

Amar also noted “the extraordinary body of work of Steven G. Calabresi, who co-founded the conservative Federalist Society in the early 1980s and then clerked for Judge Bork and Justice Scalia. As “perhaps America’s pre-eminent conservative originalist,” [he] has shown that the 14th Amendment was plainly intended to apply the Bill of Rights to the states; that women’s equality was a central theme of that amendment, as originally understood; and that originalism in fact supports a right of same-sex marriage.”

Gorsuch, Amar asserts, “is a brainy and principled jurist” and his “embrace of originalism is honorable and admirable” and, if confirmed as seems likely, “may one day [be regarded] . . . as among the best of the century.”

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[1] Amar, What Gorsuch Has in Common with Liberals, N.Y. Times (Mar. 18, 2017).

 

 

 

 

Proposals for Changing the U.S. Constitution

The New York Times in its “Room for Debate” feature invites knowledgeable outside contributors to discuss news events and other timely issues. The feature also solicits comments on the topic from readers.

The feature’s July 9th topic is suggestions for amending the U.S. Constitution. Ten professors of history and law started the conversation with their suggested constitutional changes.

Contributors’ Comments

Direct Election of President. Article II, Section 2 provides for election of the president by an electoral college. Alexander Keyssar, the Stirling professor of history and social policy at Harvard’s Kennedy School, suggests abolishing the electoral college and having the president (and vice president) directly elected by the national popular vote.

He says the “concerns that prompted the Founding Fathers to adopt [the current] . . .  system — a distrust of popular elections, worry that the people would be unfamiliar with national candidates, a desire to reinforce the great constitutional compromises between large states and small states, slave states and free states” are no longer valid.

In addition, Keyssar points out that we have learned about “shortcomings in the framers’ design: the person who wins the most votes doesn’t necessarily become president; the adoption of “winner take all” rules (permitted but not mandated by the Constitution) produces election campaigns that ignore most of the country and contribute to low turnout; the legislature of any state can decide to choose electors by itself and decline to hold an election at all; and the complex procedure for dealing with an election in which no candidate wins a clear majority of the electoral vote is fraught with peril.”

As indicated below, I support this proposal.

Qualifications for Office of President. The Constitution’s Article II, Section 4 establishes the following qualifications for the presidency: “a natural born citizen,” at least 35 years old and a resident of the U.S. for at least 14 years. Akhil Reed Amar, a professor of law and political science at Yale University, proposes this be changed to make eligible “those American citizens who happen to have been born abroad to non-American parents — and who later choose to become ‘naturalized’ American citizens.” This would be consistent with the overall historical trend of increasing equality and with the current practice in the 50 states.

I am indifferent on this proposal.

Federal Judges Tenure. The Constitution in Article III, Section 1 now provides that federal judges hold office during “good behavior,” which in practice has meant for life absent voluntary retirement. Jamal Greene, a professor of law at Columbia Law School and a former clerk for U.S. Supreme Court Associate Justice John Paul Stevens, says “In a democracy, no one person should wield so much power for so long.” To solve this problem, Greene endorses a proposal by Professors Steven Calabresi and James Lindgren for Supreme Court appointments with non-renewable 18-years terms, with one new justice every odd-numbered year.

As indicated below, I support this proposal.

Re-emphasize that Treaties Are Part of the Supreme Law of the Land. Under Article VI, Section 2 of the Constitution, “all treaties made, or which shall be made, under the authority of the United States, shall be [part of] the supreme law of the land, and the Judges in every State shall be bound thereby, anything in the Constitution of laws of any State to the contrary notwithstanding.” However, as pointed out by Jenny S. Martinez, the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law Schoolthe U.S. Supreme Court has held that certain treaties were not enforceable against the states. Therefore, she suggests that this provision be re-emphasized in some way.

I agree that treaties under the existing Constitution are part of the supreme law of the land and that they should bind states. There, however, is no specific proposed amendment to react to.

Changing the Process for Amending the Constitution. Article V of the Constitution provides two methods of amending the Constitution: (i) specific proposed amendments adopted by two-thirds of each chamber of Congress plus ratification by three-fourths or 38 of the states; or (ii) a call for a constitutional convention by two-thirds or 34 of the states, whose proposed amendments are ratified by three-fourths or 38 of the states. The latter method (constitutional convention), has never been used, and Michael Rappaport, the Darling Foundation professor of law at the University of San Diego and the director of its Center for the Study of Constitutional Originalism, believes that this non-use “means that Congress has a veto on all amendments and therefore no amendment that Congress opposes, including necessary reforms of Congress’s power, can be enacted.”

Therefore, Rappaport proposes that the Constitution be changed “to eliminate the possibility of a runaway convention.” The best way, he says is dispensing with “a constitutional convention and instead have the state legislatures agree to propose a specific amendment. But any method that allows for a working alternative to Congress’s amendment monopoly would be an enormous improvement.”

Rappaport has a valid objection to the present constitutional scheme, and I could accept a proposal that would allow three-fourths of the states to propose specific amendments, but would still require a two-thirds vote by each house of the Congress to adopt an amendment.

Emphasize the 10th Amendment’s Limits on Federal Government’s Powers. Under Article I, Section 8 of the Constitution, the federal government has certain specified powers, and the Tenth Amendment to the Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

According to Elizabeth Price Foley, the holder of the Institute for Justice Chair in constitutional litigation at Florida International University College of Law, these principles are important for liberty. As the Supreme Court unanimously stated in Bond v. United States (2011), “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

She believes that the existing Constitution is sufficient on this point so long as it is followed by the courts, but is open to amendment to restore certain powers to the state and like Michael Rappaport endorses the suggestion that the states have the right to propose federal constitutional amendments.

Although as just stated, I support giving the states a right to propose specific amendments, I do not favor any amendments that seek to diminish the power of the federal government. In this age of globalization, it is unwise to emphasize states over the federal government.

Narrow Congress’  Power Over  Interstate Commerce Power. As discussed in prior posts before and after the June 28, 2012, Supreme Court decision regarding the Affordable Care Act, the power of Congress under Article I, Section 8(3) to “regulate commerce . . . among the several States” has been interpreted by the Court to encompass intrastate commerce that has a substantial effect on interstate commerce.

Consistent with the views of Professor Foley, Randy E. Barnett, the Carmack Waterhouse professor of legal theory at Georgetown Law Center and one of the attorneys challenging the constitutionality of the Affordable Care Act in the Supreme Court, has proposed the following amendment that he says essentially returns the clause to its original meaning:

  • “The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”
I oppose this suggestion for the reasons stated in my prior posts.

Revising the First Amendment. The First Amendment to the Constitution states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . .” Pauline Maier, the William Rand Kenan Jr. professor of American history at M.I.T, says that this language was a revision of a more expansive version prepared by James Madison. She, therefore, suggests returning to the following Madisonian version:

  • “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed. The people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

This wording, like most of the first eight amendments, Msier believes, affirms basic rights in general terms, not as restrictions on the federal government. It also would undermine the Supreme Court’s decision about corporate speech in the Citizens United case.

I support this proposed amendment.

Delete the Second Amendment’s Right To Bear Arms. The Second Amendment to the Constitution provides that “the right of the people to keep and bear arms, shall not be infringed.” Melynda Price, an associate professor at the University of Kentucky College of Law, proposes the deletion of this right because of the amount of gun violence in the U.S.

I like the spirit of this proposal, but would have to evaluate specific language for such a change.

Clarify the Eighth Amendment’s Ban on “Cruel and Unusual Punishment.” The Eighth Amendment to the Constitution states, “cruel and unusual punishments [shall not be] inflicted.” Rachel E. Barkow, the Segal Family professor of regulatory law and policy and the faculty director at the Center on the Administration of Criminal Law at New York University, suggests this be clarified to “specifically state that excessive terms of incarceration are prohibited, just as it bans excessive [bail and] fines.” In addition, she says , it “should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge” and “insist that legislatures create a record showing that they considered empirical evidence about the law’s likely impact.”

I support this proposal.

Readers’ Comments

Readers are invited to add their comments, and I made the following suggested constitutional changes.

1. Outlaw Senate Filibuster. To require 60% of the Senators to agree in order to do almost anything is outrageous. It should only be 51% for most issues. Earlier I called the filibuster part of the abominable rules of the Senate; another post discussed revisions to the rule; and yet another post talked about additional attacks on the filibuster.

2. Change Weight of Senate Votes. Based on population, each Senator from Wyoming would have 1 vote, for example, but each Senator from California would have 66 votes. This approach would produce a total Senate vote of 1,094 based on the total U.S. population in 2010. The weightings would be changed every 10 years with the new census.

3. Change Term of House Representatives. Change the term from two years to four years to coincide with the presidential election.

4. Direct Election of President and Vice President. I agree with Professor Keyssar that the U.S. should institute direct election of the U.S. President by the national popular vote and abolish the electoral college.

5. Eliminate Life Tenure for Federal Judges. Impose a term limit on all federal judges, including Supreme Court Justices. One solution, perhaps by statute, would be to amend the current statute on judicial retirement (28 U.S.C. § 371) to make such retirement mandatory on reaching the current age and service requirements. I essentially concur in the comments of Professor Greene.

Many years ago I made other suggestions for constitutional changes in a virtual constitutional convention. More recently I have discussed what I regard as our antiquated or imbecilic Constitution.

Other Approaches to Interpreting the U.S. Constitution Regarding Economic Regulation

A prior post examined the large body of existing U.S. Supreme Court cases interpreting the Constitution regarding economic regulation and sustaining the constitutionality of the Affordable Care Act. That post also examined the  strong views of U.S. Supreme Court Associate Justice Antonin Scalia on interpreting the U.S. Constitution (and other legal texts) and the vituperative pleadings of George Will and two appellate court judges for changing the interpretation of the Constitution regarding economic regulation.

Those views, however, are not universally accepted. Now we look at the equally strong views regarding such interpretation from Supreme Court Associate Justice Stephen Breyer and a  group of legal scholars known as “the New Textualists.” Those scholars also confirm the constitutionality of the Affordable Care Act now pending in the Supreme Court.

Justice Stephen Breyer

Associate Justice Stephen Breyer

In his 2005 book, Active Liberty: Interpreting Our Democratic Constitution, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings will fit those purposes. He argues that the constitutional authors sought to establish a democratic government involving the maximum liberty for its citizens. “Modern liberty” for Breyer is freedom from government coercion. In addition, Breyer asserts, there is “active liberty” or the freedom to participate in government.

Both kinds of liberty should be protected by the courts, according to Breyer, who believes the guiding theme in constitutional interpretation, whether in upholding statutes or enforcing rights, should be enabling democracy — “a form of government in which all citizens share the government’s authority, participating in the creation of public policy.”

Therefore, in his opinion, courts should behave modestly—if not deferentially—when striking down legislation. Courts should acknowledge that the greater number of people involved in legislatures makes them more likely to be circumspect than the considerably fewer people sitting as judges on any court. Unless the legislature has perpetrated an egregious violation of rights, such deference in and of itself promotes the Constitution’s democratic objective by allowing the process of representative government to play out.  Finally, he believes, promoting active liberty simply produces better law.

Moreover, Breyer believes courts should use legislative history to determine the intent of constitution-makers and legislatures when the texts are ambiguous.  In a book on that very subject and in other writings he has identified five primary situations in which judges should use legislative history: (1) to avoid an absurd result; (2) to correct drafting errors; (3) to identify specialized meanings; (4) to identify the purposes of the statute; and (5) to choose among reasonable interpretations of a politically controversial provision.

Justice Breyer also claims that using legislative history is preferable to relying more heavily on canons of interpretation or construction as advocated by Justice Scalia. First, for every canon there exists an equal and opposite canon of construction. The sources of many interpretive canons are old and obscure. Breyer questions what validity a canon created in the nineteenth century has on statutes  in the twenty-first century. Breyer also questions the legitimacy of the Supreme Court’s adopting new canons of interpretation or construction. Finally, Justice Breyer doubts that using canons actually helps those who either write or are affected by legislation.

The “New Textualists”

A different perspective on interpreting the U.S. Constitution is provided by Jeffrey Rosen, Professor of Law at the George Washington University Law School and Legal Director of The New Republic magazine. In an article in that magazine entitled “Constitution Avenue–Liberals discover a theory to crush conservative jurisprudence,” Rosen summarizes some of the work of three of the so-called New Textualists: Professor Akhil Reed Amar of the Yale Law School; Professor Einer Elhauge of the Harvard Law School; and Professor Jack Belkin of the Yale Law School.

Akhil Amar

Amar in his book, America’s Constitution: A Biography,  emphasizes the original public meaning of the constitutional text. But the text is more than the original Constitution; it includes all of the amendments too. He points out that the Constitution has been far more democratic than is conventionally understood. Even though the document was drafted by white landholders, a remarkably large number of citizens (by the standards of 1787) were allowed to vote up or down on it, and the document’s later amendments eventually extended the vote to virtually all Americans.

According to Amar, the Affordable Care Act is constitutional under the Constitution’s Interstate Commerce clause as that has been interpreted by the Supreme Court. He said:

  • “What Congress does has to be in the enumerated powers [granted by the Constitution].. One of those powers is the Interstate Commerce Clause. What are the limits on that power? It only applies to regulations that are interstate and commercial. So Congress has to be actually trying to address a commercial problem that spills over state lines. And that’s clearly true here.”
  • “At any given nanosecond, millions of Americans are out of state. Most of my students at Yale are out of state. Three days a week, I am out of my home state. And if I or my students or any of these Americans fall sick, we go to a local ER. That’s an interstate issue. Similarly, if we don’t cover preexisting conditions, we have a lock-in for labor mobility — many workers will be unable to take better jobs out-of-state and thereby contribute more to their families and to the economy. And that’s what the Interstate Commerce Clause was all about: Getting rid of the impediments to genuine interstate commerce, to the free movement of goods and labor.”
Einer Elhauge
Einer Elhauge has addressed the constitutionality issue of the Affordable Care Act by pointing out that in the early years of our Republic, Congress  passed several laws mandating that individuals and companies buy certain things and that most of the constitutional framers supported these measures and none objected on constitutional grounds. These measures were the following:
  • “In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington.”
  • “In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. . . . Four framers voted against this bill, but the others did not, and it was also signed by [President] Washington.”
  • In “1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. . . . [T]his Congress, with five framers serving in it, . . . enacted a federal law requiring the seamen to buy hospital insurance for themselves.”

Moreover, Elhauge has responded to a criticism of the relevance of these statutes to the constitutional argument.

Jack Balkin

Professor Belkin in his book, Living Originalism, concludes that the best versions of originalism and living constitutionalism are not in conflict, but are compatible. It shows why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And it explains how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.

Belkin concludes that the Affordable Health Care Act is constitutional under Article I, Section 8 of the Constitution permitting Congress to “lay and collect taxes.” The Act, he says, does not actually require all (or certain classes of) individuals to purchase health insurance. Instead, it is a tax that people would not have to pay if they purchased health insurance.

Conclusion

The Supreme Court now has only five days next week in which to announce its momentous decisions in the cases involving the Affordable Care Act and the Arizona immigration law.

I again invite comments supplementing, correcting or challenging the assertions in this post.