Once again my friend Paul Ogden has written an inaccurate assessment of the jurisprudence of those with whom he disagrees. Mr. Ogden prefers the originalism—a term, apparently, he does not like—of the late Justice Antonin Scalia. Any theory by which one construes our Nation’s Constitution, its interplay with statutes, the constitutions of the 46 States and four Commonwealths (Virginia, Pennsylvania, Kentucky, and Massachusetts), their statutes, as well as the various treaties into which the United States has entered, and other matters, are easily determined by taking the WABAC Machine to 1787 and looking at the Constitution through the eyes of the white, male landowners who convened in Philadelphia in the summer of 1787 to act outside the charter given them by the Congress to make corrections to the Articles of Confederation.
What those men did, of course, was write the Constitution.
Today I will not address, again, the shortcomings of originalism. I did so in Sunday’s blog. Mr. Ogden can fire up his Commodore 64, set his land-line on the rubber modem, dial up the internet, and read that blog. (Okay—I am the neo-Luddite.)
Instead, I want briefly to address his claim that those who oppose originalism have only an ad hoc method of judicial interpretation of the Constitution.
I have quoted previously from “Constitutional Interpretation,” 3d ed., 1983, p. vii, by Ducat and Chase:
“Constitutional interpretation is not a static enterprise which presents the prospect of furnishing correct, certain, or ultimate legal answers to political problems but, rather, one of a continual adjustment of tensions through a process of unending dialogue among judges of fundamentally different political faiths and experiences.”
Interpretation of the Constitution consists of various elements. Of course the words of the Constitution itself are important. What the Framers intended, however, does not control, necessarily, what the words mean today.
One significant series of events consisted of the way in which the Constitution effectively protected the institution of slavery, the decades between the ratification of the Constitution, the Civil War, and the so-called Civil War Amendments. The Fourteenth Amendment fundamentally altered the concept of federalism and gave protection to citizens of their rights to due process of law in the event a State sought to deny the person or class of persons that due process. In other words, the Federal government trumped the governments of the States. One must consider such developments when one interprets the Constitution.
Another element of interpretation of the Constitution is the passage of time and the evolution of our society. There were some 60-plus offenses punishable by death in the time of the Constitutional Convention. A seven-year-old child could be subject to the death penalty. Our society has advanced. Only two (2) offenses, to the best of my knowledge, are punishable by death in the United States today. One is murder—with special circumstances. The other is treason.
A lot of people refer today to the idea that “unelected” persons—especially justices of the United States Supreme Court, and judges of the United States Court of Appeals and the United States district courts, all of whom are appointed for life—should not make decisons that affect us all and so significantly. There are two (2) points to consider. First, one the Framers of the Constitution—the people to whom, presumably, Mr. Ogden would look to guidance as to what the people who wrote the Constitution meant as they were the ones who chose the words employed in the document—Alexander Hamilton, wrote six of the last of the 85 essays of The Federalist Papers, the essays written to persuade the public to support the Constitution, specifically about the courts. As one of Hamilton’s biographers wrote:
“Throughout [Hamilton’s] career, he showed special solicitude for an independent judiciary, which he thought the most important guardian of minority rights but also the weakest of the three branches of government: ‘[It commands neither the press nor the sword. It has scarcely any patronage.’ He was especially intent that the federal judiciary check any legislative abuses. In [Federalist Paper] number 78, Hamilton introduced an essential concept, never made explicit in the Constitution: that the Supreme Court should be able to review and overturn legislation as unconstitutional. At Philadelphia, delegates had concentrated on the question of state versus federal courts, not whether courts could invalidate legislation. Here, Hamilton bluntly affirmed that ‘no legislative act ... contrary to the constitution can be valid,’ laying the intellectual groundwork for the doctrine of judicial review later promulgated by Supreme Court justice John Marshall.”
Chernow, “Alexander Hamilton,” 2004, p. 259.
The legislatures, to which Mr. Ogden would so readily defer, were the bodies of which the Framers feared would be most prone to abuse of rights.
Second, Brown v. Board of Education I—as I have written several times—never would have occurred if Justices of the Supreme Court were elected officials. That 9-0 decision was one of the most significant, if not the most significant, event to slam segregation in this country.
Mr. Ogden’s jurisprudence—his philosophy of law—is quaint. Mr. Ogden has an interesting, idyllic view reminiscent of bygone days. His belief that those who do not share his philosophy is misplaced. Interpretation of the Constitution is far more complex than Mr. Ogden would have it—fortunately.