Originalism and the constitution: Does originalism always provide the answer?

Harvard Journal of Law and Public Policy

Volumn 34, Issue 1, 2010, Pages 73-88

  Graglia, Lino A ^a  

^a UNIVERSITY OF TEXAS   (United States)

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EID: 80055042647     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (88)

1. 5 U. S. (1 Cranch) 137, 176 (1803).
2. 60 U. S. (19 How.) 393, 455 (1856).
3. 505 U. S. 833, 901 (1992).
4. See MORRIS R. COHEN, THE FAITH OF A LIBERAL 178 (1946) ("Possibly the clearest instance of the logical and historical absurdity of a decision declaring an act of Congress unconstitutional was the case of Marbury v. Madison, which lawyers have, for over a century, worshiped with blind piety.") (citation omitted).
5. Marbury v. Madison, 5 U. S. (1 Cranch) 137, 138, 180 (1803) (declaring the Constitution the "supreme law of the land" and the Supreme Court the final arbiter of the Constitution).
6. The Court's next exercise of judicial review against a federal law, fifty-three years later in Dred Scott v. Sandford, invalidated a congressional attempt to limit the extension of slavery to new territories, 60 U. S. (19 How.) 393, 455 (1856), and helped bring on the Civil War and its more than 620, 000 battlefield deaths.
7. See Lino A. Graglia, Judicial Review: Wrong in Principle, A Disaster in Practice, 21 MISS. C. L. REV. 243, 246 (2002). This one example of the use of the power should be taken as proof enough that judicial review is not a good idea. It certainly demonstrated the prescience of de Tocqueville's warning that "if ever the Supreme Court came to be composed of rash or corrupt men, the confederation would be threatened by anarchy or civil war." ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 151 (J. P. Mager ed., George Lawrence trans., Perennial Classics 2000) (1835).
8. The opposite, a ruling holding constitutional a policy choice that the Constitution clearly forbids, is extremely rare. Home Bldg and Loan Asśn v. Blaisdell, 290 U. S. 398, 447-48 (1934) may be the clearest, if not the only, example, and in any event should be seen not as activism, but restraint, permitting the result reached in the ordinary political process to prevail.
9. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 135 (1893).
10. HANS CHRISTIAN ANDERSEN, THE EMPEROR'S NEW CLOTHES 18 (Abbeville Press 2001) (1837).
11. See, e.g., MAX FREEDMAN, ROOSEVELT AND FRANKFURTER 383 (1967) (quoting Felix Frankfurter's statement to President Franklin Roosevelt: "People have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of course, in so many vital cases, it is they who speak and not the Constitution. ");
12. Richard A. Posner, Foreword, A Political Court, 119 HARV. L. REV. 32, 40 (2005) ("But the Supreme Court when it is deciding constitutional cases, is political in the sense of having and exercising discretionary power as capacious as a legislature's. It cannot abdicate that power, for there is nothing on which to draw to decide constitutional cases of any novelty other than discretionary judgment.").
13. PLATO, REPUBLIC 193, 197 (G. M. A. Grube trans., 2d ed. Hackett Publishing Co. 1992).
14. U. S. CONST. amend. XIV, §§ 1-2 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.").
15. 410 U. S. 113, 164-65 (1973).
16. Collins v. City of Harker Heights, 503 U. S. 115, 125 (1992).
17. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 873, 901 (1992) (giving states freedom "to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning", while reserving the right to determine for itself what is reasonable by invalidating portions of the state statute under review as placing "an undue burden on a woman's choice") (emphasis added).
18. 347 U. S. 483, 493 (1954).
19. 347 U. S. 497 (1954).
20. U. S. CONST. art. I, § 2, cl. 3; id. art. IV, § 2, cl. 3.
21. U. S. CONST. art. I, § 9, cl. 6 ("No preference shall be given by any regulation of Commerce or Revenue to the Ports of one state over those of another.").
22. The Court found it "unthinkable that the same Constitution would impose a lesser duty on the Federal Government" than Brown found it imposed on the states, Bolling, 347 U. S. at 500, even though several constitutional provisions impose different duties on the state and federal governments. The Bill of Rights, for example, originally applied only to the federal government
23. see Barron v. Mayor and City Council of Balt., 32 U. S. (7 Pet.) 243, 250 (1833), and the Contracts Clause, Article I, Section 10, Clause 1, applies only to the states. The result in Bolling was "gibberish both syntactically and historically."
24. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 32 (1980).
25. If the Court had the least interest in maintaining the pretense of the relevance of the Constitution to constitutional law, Bolling could have provided an excellent, costless opportunity. It was indeed "unthinkable" that segregation would continue in the District of Columbia, Bolling, 347 U. S. at 500, not because of the Constitution, but because Congress would have ended it if the Court would have let it have the honor of doing so.
26. Congress ended segregation at once, without needing or wanting the permission for delay ("all deliberate speed") the Court granted in Brown v. Board of Education (Brown II), 349 U. S. 294, 301 (1955).
27. See RONALD DWORKIN, LAW'S EMPIRE 88 (1986).
28. ELY, supra note 27, at 15; Mitchell N. Berman, Originalism is Bunk, 84 N. Y. U. L. Rev. 1 (2009).
29. 381 U. S. 479 (Black, J., dissenting).
30. Adamson v. California, 332 U. S. 46, 71-72 (1947) (Black, J., dissenting) ("My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment.") (citations omitted).
31. See Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights: The Original Understanding?, 2 STAN. L. REV. 5, 78-82, 139 (1949).
32. But see MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 99-105 (1986);
33. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L. J. 1193, 1238-43 (1992).
34. See Ohio ex. rel. Eaton v. Price, 364 U. S. 263, 274-76 (1960) (Brennan, J., concurring).
35. The Court arrived at this position by a process of characteristically illogical reasoning in Duncan v. Louisiana, 391 U. S. 145 (1968). The Court took as its major premise that the Due Process Clause of the Fourteenth Amendment makes applicable to the states those procedural protections of the Bill of Rights that are "fundamental to the American scheme of justice" and its minor premise that a jury trial for nonpetty criminal cases is fundamental. Id. at 149. Instead of then reaching the logical conclusion that a jury trial is therefore required in state criminal cases, the Court reached the conclusion that a jury trial in the manner specified by the Sixth Amendment is required despite the fact that not all Sixth Amendment requirements, such as number of persons and unanimity, are necessarily fundamental. Id. at 157-58.
36. Including that it would impose on the states the Seventh Amendment requirement of a jury trial in all civil cases involving more than twenty dollars, which even Justice Black would make an exception. See Adamson, 332 U. S at 62-64 (Frankfurter, J., concurring) (arguing that incorporation is inconsistent with precedent and the understanding of the Fourteenth Amendment's text that prevailed at the time of its ratification by the States).
37. See Adamson, 332 U. S. at 75 (Black, J., dissenting).
38. See Yale Kamisar, How Much Does It Really Matter Whether Courts Work Within the "Clearly Marked" Provisions of the Bill of Rights or With the "Generalities" of the Fourteenth Amendment?, 18 J. CONTEMP. LEGAL ISSUES 513, 516 (2009).
39. See LEONARD W. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY 261 (1960) (citing 8 Annals of Cong. 2160 (1798));
40. see also Leonard W. Levy, The Legacy Reexamined, 37 STAN. L. REV. 767, 791 (1985) (stating that there are many sources "acknowledging that freedom of the press meant only no prior restraints").
41. See, e.g., 18 U. S. C. § 1621 (2006) (prohibiting perjury when an oath is sworn);
42. 18 U. S. C. § 373 (2006) (prohibiting solicitation to commit violent crime);
43. 15 U. S. C. § 52 (2006) (prohibiting false advertising);
44. 15 U. S. C. § 1 (2006) (prohibiting agreements in restraint of trade).
45. See, e.g., Texas v. Johnson, 491 U. S. 397, 414 (1989) (flag burning);
46. Schad v. Borough of Mount Ephraim 452 U. S. 61, 66 (1981) (nude dancing);
47. Miller v. California, 413 U. S. 15, 23-24 (1973) (pornography);
48. Cohen v. California, 403 U. S. 15, 26 (1971) (vulgarity);
49. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U. S. 503, 505-06 (1969) (armbands);
50. N. Y. Times Co. v. Sullivan, 376 U. S. 254, 277 (1964) (libel);
51. Edwards v. South Carolina, 372 U. S. 229, 237-38 (1963) (demonstrations that disturb public order).
52. Citizens United v. FEC, 130 S. Ct. 876, 913 (2010) (holding that the First Amendment does not permit the federal government to limit a corporation's political speech on the grounds that the speaker is a corporation and not a person).
53. Meek v. Pittenger, 421 U. S. 349, 366 (1975) (finding direct aid in the form of maps and magazines given to church-related schools to constitute "direct and substantial advancement of religious activity")
54. overruled by Mitchell v. Helms, 530 U. S. 793, 808 (2000);
55. Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392 U. S. 236, 238 (1968) (finding compulsory loan by local school boards of textbooks to children, even those attending religious schools, to not violate the First or Fourteenth Amendment).
56. See ROBERT L. CORD, SEPARATION OF CHURCH AND STATE: HISTORICAL FACT AND CURRENT FICTION 144 (1982).
57. See U. S. CONST. amends. IV-VI, VIII.
58. See, e.g., Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 YALE L. J. 1035, 1037 (1977) (arguing that the Warren Court's "innovations" in interpreting the Fourteenth Amendment's Due Process and Equal Protection Clauses as applied to the criminal procedure provisions in the Bill of Rights were motivated by a desire to achieve equality);
59. Michael B. de Leeuw et al., Ready, Aim, Fire?
60. District of Columbia v. Heller and Communities of Color, 25 HARV. BLACKLETTER LJ. 133, 173 (2009) (arguing that the Warren Court's criminal procedure "innovations" were premised on skepticism of local police practices).
61. US. CONST. amend. V.
62. E.g., Richardson v. United States, 468 U. S. 317, 325-26 (1984) (hung jury);
63. United States v Tateo, 377 U. S. 463, 465 (1964) (conviction reversed on appeal);
64. United States v. Holley, 986 F.2d 100, 103-04 (5th Cir. 1993) (juror incapacitation).
65. See, Palko v. Connecticut, 302 U. S. 319, 328 (1937) (finding that the Fifth Amendment's double jeopardy prohibition is not violated by a state's appeal where a trial leading to acquittal was possessed of "substantial legal error")
66. overruled by Benton v. Maryland, 395 U. S. 784, 794 (1969).
67. See Kepner v. United States, 195 U. S. 100, 135-36 (1904) (Holmes, J., dissenting) (arguing that allowing states to appeal acquittals of criminal defendants does not violate the Fifth Amendment's double jeopardy prohibition).
68. See Palko, 302 U. S. at 328 (ruling that the Fourteenth Amendment does not forbid a state from appealing an acquittal in a criminal case where the original trial was tainted by legal error).
69. Benton, 395 US. at 794.
70. United States v. Virginia, 518 U. S. 515, 557 (1996).
71. See Lawrence v. Texas, 539 U. S. 558, 578 (2003)
72. overruling Bowers v. Hardwick, 478 U. S. 186 (1986) (finding Texaśs anti-sodomy law to violate the Due Process Clause);
73. see also Romer v. Evans, 517 U. S. 620, 635 (1996) (finding Amendments to the Colorado Constitution, which preclude any special protection for persons based on sexuality, to violate the Equal Protection Clause).
74. 128 S. Ct. 2783 (2008).
75. See, e.g., Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U. S. 518, 533 (1928) (Holmes, J., dissenting);
76. David Luban, Justice Holmes and the Metaphysics of Judicial Restraint, 44 DUKE L. J. 449, 504 (1994).
77. QANUNI ASSASSI JUMHURII ISLAMAI IRAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF IRAN] 1358 [1980], Art. 91, 94;
78. Nazila Fathi, One-Third of Iranian Parliament Quits in Protest, N. Y. TIMES, Feb. 2, 2004, at A1 (explaining that members of the Guardian Council are "handpicked" by the Ayatollah).
79. See Justice William J. Brennan, Jr., Speech to the Text and Teaching Symposium at Georgetown University (Oct. 12, 1985), in THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION 11, 14-15 (1986).
80. See Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15 THE PAPERS OF THOMAS JEFFERSON: 27 March 1789 to 30 November 1789, at 392 (Julian P. Boyd ed., 1958) (The "dead hand" maxim grew from Jefferson's famous contention "That the earth belongs in usufruct to the living: that the dead have neither powers nor rights over it.").
81. See John W. Fountain, Prayer Warriors Fight Church-State Division, N. Y. TIMES, NOV. 18, 2001, at A20 (anecdotally illustrating support for prayer in public schools and noting that several states have adopted "moment of silence" statutes allowing for silent prayer).
82. See, e.g., Kenneth C. Haas, The Emerging Death Penalty Jurisprudence of the Roberts Court, 6 PIERCE L. REV. 387, 428 (2008) (citing statistics demonstrating long-term support for capital punishment among the American public in cases where criminal defendants are convicted of murder);
83. Brenda Goodman, North Carolina Man is 1, 000th Person Executed Since 1976, N. Y. TIMES, Dec. 3, 2005, at A17 (citing similar statistics).
84. See Hal Espen, Higher and Higher, N. Y. TIMES, June 6, 2004, § 7, at 8 (book review) (discussing the "war on drugs" and noting a majority of Americans favor stricter drug laws).
85. See Daniel Goleman, New Studies Examine Sexual Guilt, N. Y. TIMES, Aug. 20, 1985, at C1 (citing national surveys finding increased support for suppression of pornography).
86. See North Carolina: Raleigh Changes Busing Policy, N. Y. TIMES, Mar. 24, 2010, at A16 (discussing a recent example of a school board implementing a neighborhood school assignment program).
87. 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 85 (Max Farrand ed., 1911).
88. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L. J. 1425, 1439 (1987) (drawing on historical analysis to argue that popular sovereignty informed "every article of the Federalist Constitution, from the Preamble to Article VII").