Saturday, March 30, 2013

Richmond-Times Dispatch Fumbles on Originalism

As previously explained on this blog, the traditional rationale for judicial review begins with the assumption that the Constitution itself is binding law, designed to constrain future generations.  As John Marshall explained in Marbury v. Madison, 5 U.S. 137 (1803), the Constitution announces certain "fundamental . . . principles," principles the ratifiers "designed to be permanent."  As Marshall further explained, the Constitution therefore imposes upon judges (and other officials) a duty to enforce the document's original meaning so as to implement the ratifiers' choices.  Courts that ignore this meaning while purporting to exercise judicial review thus exceed their authority and forfeit any claim of legal legitimacy.  (See also here for an extensive discussion of how courts should approach judicial review.)
In a house editorial earlier this week, the Richmod Times-Dispatch tried to implement such an "original meaning" approach to constitutional interpretation.  For this the Times-Dispatch deserves enormous credit; many media outlets purport to invoke the Constitution as the basis for a preferred policy choice while ignoring the document's original meaning.  Despite this promising start, however, the Times fumbled just before crossing the goal line.       In particular, the Times claimed that, because Section 5 of the Voting Rights Act was Constitutional when first passed in 1965, an identical statute passed in 2006 (after the prior version expired) must also be constitutional.  Thus, the paper concluded, judicial invalidation of the 2006 Act would necessarily substitute the Justices' legislative views for those of Congress and thus constitute unwarranted judicial activism.    The paper's argument is worth quoting in full:
"The arguments against Section 5 may be valid. Yet this is not a matter for the Supreme Court to decide. Although the court has changed its attitude toward various questions – with Brown v. Board of Education, for instance, it no longer permitted the segregated schools that had been tolerated in the past – a change regarding Section 5 would be intellectually preposterous. By overturning Section 5, the court in essence would say, “We used to believe this was constitutional, but times have changed and we no longer do.” The answer to the policy question falls outside the court’s competence. Several justices have indicated their skepticism of Section 5’s necessity. Their personal opinions regarding the provisions do not matter. The section’s fate properly rests with Congress. And in 2006, Congress rejected efforts to rewrite Section 5.
Many conservatives would welcome a decision against Section 5. Such a reaction would raise doubts regarding their professed opposition to judicial activism. How would conservatives react if the court were to rule that the Second Amendment no longer restricts gun control because the establishment of a standing Army, a Navy, an Air Force and a Marine Corps means the defense of the realm does not depend on militias in the sense that the Founders understood them?
The Times-Dispatch hopes that Antonin Scalia and his peers remember they are justices, not legislators."
This argument misconceives both the nature of constitutional meaning and the appropriate approach to judicial review.  The Constitution does not always enshrine particular results.  Instead, as Marshall explained, the document often articulates fundamental and permanent principles.  As the Supreme Court explained more than eight decades ago, changes external to the Constitution can compell courts to sustain legislation once deemed unconstitutional or strike down legislation once thought perfectly constitutional. 
"[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall."
See Village of Euclid v. Ambler Realty, 272 U.S. 365 (1926) (Sutherland, J.)
Indeed, Justice Scalia, whom the Time-Dispatch called out, has expressly endorsed such an approach to constitutional interpretation.  In particular, Justice Scalia has explained that changes in technology, external to the Court, can require changed applications of the 4th Amendment.   See County of Riverside v. McGlaughlin, 500 U.S. 44 (1991).  In his McGlaughlin dissent, Justice Scalia explained that the common law principles that animate the Fourth Amendment remained constant and unchanged.  That is, the police can only hold a suspect long enough to find a magistrate who can make a probable cause determination.  At the same time, he said, technologial changes required a new application of that principle given, as Justice Scalia said, the advent of "helicopters and telephones."  This new technology, he said, made it easier to locate a magistrate and obtain a determination of whether probable cause supported the detention, thereby reducing to 24 hours the period of time police can hold a suspect before obtaining a probable cause hearing.

Indeed, several years before McGlaughlin, Judge Robert Bork articulated a similar approach to implementing an "original meaning" methodology.  See Ollman v. Evans, 750 F.2d 970  (D.C. Cir. 1984) (en banc)(Bork, J. concurring).  Speaking of the task of a Judge applying the First Amendment Bork said:

"There would be little need for judges --- and certainly no office for the philosophy of judging --- if the boundaries of every constitutional provision were self-evident.  They are not.  In a case like this, it is the task of judge in this generation to discern how the framers' values, defined in the context of the world they knew, to the world we know.  The world changes in which unchanging values find their application."

None of this is to say that the Justices should invalidate the 2006 Voting Rights Act.  That's a question beyond the scope of this post.  One thing is clear, however:  the Court's analysis should not end with a determination that the statute was constitutional in 1965.