by GftNC
lj has asked for contributions from people with subscriptions (in my case the NYT and the Atlantic) of things that might interest the ObWi commentariat . It was hard for me to know what gift links to post that would appeal and that might provoke conversation, so this is an experimental first try. From the NYT I might go for Jamelle Bouie, who is often approvingly posted by hilzoy on her bluesky feed, but I am very open to hearing requests for regular columnists, journalists etc. For today, however, this is How Originalism Killed the Constitution, since Originalism seems to many (including me) an absolutely insane idea:
The article is here
Interesting article. The narrative of how the Supreme Court came to be so weaponized is good, and the role that Originalism played in it is plausible. I’d like a much more solid set of grounds laid out for that, but that would likely push the length of the article beyond what a popular venue like The Atlantic would support – more of an academic press book argument than a middlebrow magazine argument.
The part I found weakest, though, was the connection implied between Originalism and the abandonment of constitutional amendment as a path to change. It seems to me that the procedures for amendment codified in the Constitution themselves account for why that process has been abandoned. The threshold of support required for amending the Constitution is excessive.
https://www.californialawreview.org/print/the-worlds-most-difficult-constitution-to-amend
The only times it has ever worked, it did so because of either war or an extension of franchise to a broader group of Americans that created the potential for new cross-cutting alliances which could overcome those difficulties. I don’t see that Originalism has altered anything with regard to amendment. What it has done is given conservative legal activists a recognizable brand on which to build a legal sophistry that can provide cover for a judiciary coup.
The Constitution is deeply flawed and limiting. It probably should have failed in 1860 or in 1929, and only extraordinary extra-Constitutional means preserved the nation in both instances, but the flaws remain. We would probably be better off with a new governing document, but there is no way that the nation would ever go back together as a 50-state union if the document went away. We’ve lost our sense of a common good.
Thanks so much for posting that. I’m tempted to post Rick Blaine’s line at the end of Casablanca, but I don’t want to scare you off.
I wonder if it is a possibility that, after all the dust has settled (if it does) and the MAGAists are cast out (if they are), we would have a round of amendments. ERA, possibly expanded to deal with the Roberts court’s assaults on it, something dealing with tariffs, an amendment specifically about environmental protection, possibly couched in terms of the rights of future generations, would be what I would hope for. I realize this is improbably optimistic, but that’s what’s for dinner.
lj, I rather doubt that there would be an amendment about tariffs. The Constitution already gives power over them exclusively to Congress. The problem we face is that we have an administr3which cares not at all about what the law or the Constitution says. Well, except when it is convenient to use as a cudgel. Otherwise, they just do as they please, confident that neither the Supreme Court nore the Congress will try to stop them — nor could do so if they tried.
Just as we see with “Originalism”, if you don’t care what they explicit constraints on you are, and if nobody has the power (or perhaps the willingness) to stop you, then anything goes.
The Constitution already gives power over them exclusively to Congress.
Who delegated some amount of that power to the President, in the event of an emergency. Congress didn’t specify what was an emergency and what not. The current SCOTUS seems inclined to the position that absent a specification, an emergency is whatever the President says it is.
New place looks nice.
Whatever blessing lies in my power to confer, on all of you, and on all of us.
Wading in here. LJ’s comment on amendments prompted me to weigh in on something that I’ve been thinking of for some time now. Here it is, as scattershot as it looks:
The first thing I’ve thought of is that the Emoluments Clause, as it has been, is now dead in the water. It will have to become at least law, and if possible, an amendment. I would even, in a Panglossian Best of All Worlds projection, tie it in to the proposals to ban stock trading by members of Congress and extend it down from the executive to the legislative – no running businesses or stock trading, or even sitting on boards of directors of any corporation, whether you’re in the WH or the House or the Senate.
Some other things: Term limits for SCOTUS. Abolish, or at least, claw back, the War Powers Act. A cap on EOs – make the prez present their case to Congress for this, that, or the other.
There’s a whole bunch of other things that could be enumerated, but these are what I can come up with.
I was just thinking of the Constitution, I’m sure if Trump falls, there will be other things, sekaijin’s list is good. Tariffs are probably difficult to tackle constitutionally, especially when one side has ignored the guardrails. Of course, after Smoot-Hawley, they gave control of the tariffs to the President, so it’s not clear who could be trusted with it.
It might be instructive to consider what sort of laws were put in place after Nixon. I don’t think there was any talk of amending the constitution, which might be a measure of how much more Trump has broken the system.
(I’m being incredibly optimistic that Trump will overreach and him and the people around him will be called into account, though that optimism calls to facts not in evidence…)
Seems to me that it is preferable to have some framework rather than none, even if inconsistently applied (at least you have something to measure against and criticize). Otherwise, you are just making things up. And by a small group of people no less. Claiming the Constitution is “living” runs a great risk of just making things up and thwarting the amendment process.
That’s what happened with Roe. Although the article mentions this, it seems to ignore that the modern resurgence of originalism was a direct response to the “penumbra” of Roe. Well, that and the protests that broke out on the Supreme Court’s steps hoping to influence what the vote couldn’t bring.
GftNC, if originalism is “insane,” what do you suggest?
Btw, I think of Scalia more of a textualist first and foremost. I lean textualist as far as that can get you, originalist after that.
Lj: “an amendment specifically about environmental protection, possibly couched in terms of the rights of future generations.”
Interesting thought, especially in light of Dobbs. Trying to bring back discussion of the rights of the unborn at the federal level are we?
No, not really, I was thinking of these
https://www.theguardian.com/world/2021/apr/29/historic-german-ruling-says-climate-goals-not-tough-enough
and
https://www.theguardian.com/world/article/2024/aug/29/south-korea-court-climate-law-violates-rights-future-generations
WRT BC’s linking of environmental justice to the rights of the unborn, the opposite legal flourish would be to invoke Castle Doctrine as a defense for an abortion in a state with restrictive abortion laws, but liberal firearms laws.
bc’s comment is a bit of a misapprehension, because in this context, I imagine that there would be new principles enshrined as amendments rather than trying to contort current rulings into something new. We don’t have a lot of history to work with, but I see amendments as making new law to specifically overturn earlier decisions. They didn’t say ‘how can we reinterpret Dred Scott so that African-Americans are actually citizens’.