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Monday, January 16, 2006

Alito Beyond Our Fingertips

Despite the rhetoric to the contrary, Samuel Alito's nomination to the Supreme Court of the United States is all but assured. Much will be said about his supposed belief in the doctrine of "original meaning". In general, liberals have consistently opposed this doctrine as being inherently in opposition to their concept of the Constitution as a "living document". This is based, largely, on the voices of the chief champions of "original meaning" - Justice Antonin Scalia and Constitutional scholar Robert Bork.

Dahlia Lithwick writes:

Many prominent liberal thinkers have retreated from William Brennan's soaring language about the need for a "living Constitution," because, I think, it embarrasses them. The idea that, as Brennan wrote, "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on the application of principle to specific, contemporary questions," has been rebutted roundly with the notion that it's even more arrogant for nine unelected officials to gauge anything at all. Calls for minimalism or pragmatism or incrementalism are now in vogue for progressives. That has all the taste of penumbras and emanations, but only half the calories.


The problem is that liberals - from Brennan and Thurgood Marshall, to Lithwick and every Senator of the Judicial Committee - can't see any way around the intellectual trap laid by Bork and Scalia that the "Living Constitution" is the exact opposite of "Original Meaning". Of course, they aren't alone in this blindness - even the moderate pro-choice Arlen Specter didn't seem to truly understand what Judge Alito meant when he said:
a living thing in the sense that it protects rights by setting out principles to be applied in changing circumstances


That was obviously not what Specter - or anyone else who has every used the term "Living Constitution" - meant. Yet, at the same time, it is. This is true because to a large extent, the idea of "Original Meaning" is exactly the same as the idea of a "Living Constitution". By refusing to embrace methodology (claiming it is inherently unfair), liberals have lost the greatest chance to take back the language of the Court.

There is no Constitutional Scholar that would enforce a simple word-for-word reading of the Constitution. Scalia, Thomas, and Rehnquist all have found nuances in the wording of the Constitution that allowed them to rule on cases in ways that were not immediately obvious - the fact that Scalia upheld the right to burn the American flag should give everyone sufficient cause to examine that. After all, the word "flag" doesn't appear at all in the Constitution.

Complaints about a Living Constitution, however, are largely unfounded. This is especially true in the Brown v. Board of Education case.

Here is an excerpt from the Brown case:

To separate them [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone. . . . Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. . . .

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and other similarly situated . . . are . . . deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.


How is this reasoning differently from that urged by Justice Scalia in the article linked above in his name when he claims:

The Constitution should be interpreted neither strictly, nor sloppily, but reasonably


Is it not "reasonable" to expect that, as blacks are considered an equal part of society, that they should have an equal share in the facilities paid for by the government that serves them?

As well, how is the use of "psychological knowledge" in Brown different from calls by conservatives to utilize more advanced medical knowledge in interpreting Roe v. Wade?

If one is unreasonable; then surely both are.

The fact is that "Original Meaning" can as easily come to the defense of Brown as "Living Constitution" did. How? The Constitution declares all citizens are exactly equal - not roughly equal and not somewhat equal, but equal without moderfier. Since it is impossible for two schools to be equal - and that should be obvious enough to not need a defense - then it is impossible to create an education system that is equal for all involved unless all involved have access to the same schools.

The same is true for a liberal defense - on Original Meaning grounds - for Roe v. Wade. There is no need to "invent" a "Living" right to privacy or anything other than to point to the Constitution itself. The unborn simply have no legal standing in the Constitution - if anyone wants to create that standing, then they must pass an amendment to create that standing.

Scalia is right - judges have always made excuses for ruling the way they believe is the most just. What has changed is that those lined up with Scalia and Bork (and perhaps Rehnquist and Thomas - maybe Roberts and Alito, though only time will tell) have simply excused their activism while accusing the activism with which they don't agree. Rather than digging in and avoiding the subject, liberals should simply take up the terminology and methodology being used against it and show it for the farce it is. Anytime you find yourself on the opposite side of liberty for people and restraint for government, you are apt to find yourself on the losing side of the argument.

That is the soaring rhetoric that Thurgood and John Marshall were accustomed to using. Until liberals discover how to reclaim it, they will be doomed to minority status and ineffective, frustrated reaches for power that remains elusively beyond their fingertips.

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