Originalism and Unenumerated Rights
Wed Aug 24, 2005 at 06:55:32 AM PDT
At 10:00 a.m., People for the American Way will announce its opposition to the Roberts nomination to the SCOTUS. Don't ask me how I know, I just do. On that important note, I want to revisit an important issue to be considered regarding judicial philosophy - that of the title.
This morning Kevin Drum takes a crack at Originalism:
Of all the pillars of modern conservatism, the one that has long struck me as the most obviously absurd is the doctrine of orginalism. Think about it. Are we really supposed to take seriously the idea that the Supreme Court of 2005 -- in an era of spyware, genetic mapping, and billion dollar hedge funds -- is supposed to make its judgments based on divining the intent of a small group of men who lived in a simple agrarian community 200 years ago? Presented baldly, it's an idea that wouldn't pass muster with a bright 10 year old.
I disagree with Kevin. The problem is not being faith to the original purposes of the Constitution, but rather feigning a blind fealty to its text -- what I call "blind textualism."
Dalias Lithwick wrote "But it's hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why." Well, here was one of mine.
But the reality is there are no true Original textualists, just poseurs. And a good thing. Because blind textualism is sheer nonsense, as I explained in my post linked above. But Prof. Jack Balkin does a very good job of explaining how obvious the lie of the "Original textualists" actually is - by dicussing their dissent in Kelo. As I am the one person in all of daily kos who believes Kelo correctly decided, because of the definition of "public use," you'll find my position on the "Living Constitution" approach used by the dissent ironic no doubt. But there it is. I'll discuss Balkin's takedown of the "Originalists" on the flip.
On to Balkin's dissection:
If you've been paying attention to the Supreme Court's recent docket, you may find all this talk about taking from A and giving to B familiar. It's what was at issue in Kelo v. New London, in which the Supreme Court held that taking property as part of a comprehensive scheme to stimulate economic development was a public use, and did not violate the Constitution as long as just compensation was given. Justice O'Connor began her dissent by quoting the passage from Calder v. Bull I cited above, which as we have seen, is the original citation for the doctrine of unenumerated rights. What New London was doing, she argued was nothing less than taking property from individual homeowners and giving it to other private parties.
Nobody accused Justice O'Connor of engaging in substantive due process, and amusingly, Justices Scalia and Thomas, who don't usually recognize unenumerated rights, joined her opinion. Of course, the reason was that her argument was nominally premised on the text of the Public Use Clause. But as I noted above, the Public Use Clause doesn't actually say that property can't be taken for private use. It says only that "private property [shall not] be taken for public use, without just compensation." That leaves out takings for private use without just compensation and takings for private use with just compensation. O'Connor is reading into the text of the Public Use Clause things that are not actually there. The prohibition is in the Fifth Amendment to be sure, but not in the Public Use Clause.
So where do we get the principle banning takings for purely private use that was at stake in Kelo? We get it from the basic idea of substantive due process, which prohibits A to B transfers and protects vested rights from being destroyed by government. Justice Thomas tries to avoid recognizing this in his dissenting opinion, arguing that despite its language the Public Use clause cannot apply merely to public uses; otherwise, it would allow takings for private use without compensation, which would "contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation." He artfully elides the question of what textual provision in the Constitution prevents takings for private use with compensation. We know the answer-- it's the Due Process Clause. That's what most people at the Founding thought, and that's why the Fifth Amendment is written that way.
But, wait, that would mean that in Kelo Thomas is actually making an argument from (shudder) substantive due process. And it would be the same sort of argument that Chief Justice Taney made in Dred Scott. But we all know that Justices Thomas and Scalia don't believe in substantive due process. And they certainly don't agree with anything that awful Chief Justice Taney said in Dred Scott.
. . . Let me summarize: Critics of Kelo (including the dissenting Justices) are making a very old kind of argument from substantive due process, indeed the original argument from substantive due process, and the very sort of argument that Chief Justice Taney made in Dred Scott. Does that undermine their arguments or make them bad people? No, it does not. And here's the moral of the story: Just because an argument appears in Dred Scott doesn't mean that the idea is bad. The idea that the Constitution follows the flag is not bad, and substantive due process is not bad.
Of course that is correct. So, in the end, we all believe in a "Living Constitution." Some of us are more honest about it, that's all.
NOTE: O'Connor has ALWAYS recognized unenumerated rights. See Casey. No need to call her a hypocrite.
