Constitutional Law

Philosophies of Judicial Decision Making
Originalism v. Living Constitutionalism

Contents

Puzzling Supreme Court Decisions

Gamble v. United States, 2019
  • Terance Gamble, a felon, was found to be in possession of a handgun. He was convicted under Alabama state law and given a one-year sentence. He was then prosecuted under federal law and received a 46-month sentence on top of the one-year sentence.
  • The Supreme Court ruled that his two convictions did not violate the Double Jeopardy Clause of the Fifth Amendment:
    • Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.
  • How can this be?
Brandenburg v. Ohio, 1969
  • In Brandenburg v. Ohio the Supreme Court ruled that the government may prohibit speech if:
    • the speech is “directed to inciting or producing imminent lawless action” and
    • the speech is “likely to incite or produce such action.”
  • But the Free Speech Clause of the First Amendment says:
    • “Congress shall make no law … abridging the freedom of speech”
  • As Justice Hugo Black famously said, “make no law” means “no law.” No exceptions
  • How can this be?
  • A second puzzle:
    • The Free Speech Clause says “Congress shall make no law….”, referring to the Congress of the United States.  The clause says nothing about the states, which evidently are allowed to abridge free speech all they want.
  • Again, how can this be?
Solution to the Puzzles
  • Solution = Precedents
    • A precedent is an opinion of the Court that is binding or persuasive for future cases with similar facts or legal issues.
  • Gamble v. United States
    • Gamble can be prosecuted twice because of the Dual Sovereignty Doctrine:
      • “Where there are two sovereigns, there are two laws, and two ‘offenses’.”
      • The federal government and the states are different sovereigns.
    • The doctrine is supported by a “chain of precedent linking dozens of cases over 170 years.”
  • Brandenburg v. Ohio
    • “Make no law” doesn’t mean “no law.”
      • Numerous Supreme Court precedents have carved out areas of Unprotected Speech, such as: obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, and child pornography. 
    • States abridging free speech?
      • In 1925 Gitlow v. New York extended the Free Speech Clause of the First Amendment to the states, through the Due Process Clause of the Fourteenth Amendment.
Takeaway
  • Supreme Court precedents have effectively extended the Constitution far beyond the 4,543 words of the original document and its 27 amendments. The result is the vast body of constitutional law that’s evolved since 1788.

Themes

  1. Arguments
    • A justice writing an Opinion of the Court sets forth not only the court’s ruling but also an argument for the ruling. A justice writing a dissent presents an argument against the ruling. A justice writing a concurrence puts forth an argument for the ruling different from the Court’s. A justice never defends an opinion by saying “That’s just the way I feel.”
      • Arguments are the bread and butter of the courts.
        • An argument is a piece of reasoning, from premises to a conclusion.
      • Arguments for or against the ruling of the Court are based on:
        • facts about the case at issue.
        • the Constitution, and
        • precedents
    • Arguments make judges accountable. As Justice Breyer puts it in Making our Democracy Work:
      • “Judges do not simply announce a legal conclusion. They reason their way to that conclusion in an opinion written for all to see. The obligation to provide legally defensible reasoning in a publicly accessible format prevents a judge from escaping accountability. Indeed, a good judicial opinion is transparent and informative. It shows that the decision is principled and reasoned. The strength of this reasoning matters.”
  2. Common Law
    • The Supreme Court resembles a common law court in setting, following, and overruling precedents. As David A Strauss puts it in The Living Constitution
      • “Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written U.S. Constitution itself.”
    • Common law is law derived from judicial decisions instead of statutes.  In common law systems precedents are the law.
    • In the US court system precedents supplement statutes and constitutional provisions.
    • In setting a precedent the Court makes law.
      • A law is a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority. (Merriam-Webster)
      • People go to prison based on Supreme Court precedents.
  3. Philosophies of Judicial Decision Making
    • Originalism is the doctrine that the original public meaning of the Constitution is authoritative.
      • The original public meaning of a constitutional provision is what a reasonable, knowledgeable person would have understood it to mean when ratified.
      • Therefore:
        • A law is unconstitutional if it is incompatible with the original public meaning.
        • A constitutional right to X exists only if it’s stated or implied by the original public meaning.
    • Living Constitutionalism is the doctrine that judicial decision-making is a matter of how best, if at all, to extend the Constitution (by precedent) to the case before the Court.
      • Justices should make decisions like common law judges, based on the facts of the case, precedents, Constitutional provisions, principles of justice and fairness, and the projected consequences of competing decisions.
  4. Statutory Interpretation
    • The two philosophies of interpreting statutes (versus constitutional provisions):
      • ​​Textualism
        • A provision of a statute should be interpreted only by its words, as they are commonly understood.
      • Purposivism
        • A provision of a statute should be interpreted not only by its words but also within the context of the statute as a whole and by the statute’s legislative intent and history.

What a Supreme Court Opinion Looks Like
Gamble v. United States

Websites
Form of the Opinion
  • Syllabus (i.e. summary)
    • Title
      • Gamble v. United States
    • Certiorari (Sir-she-a-RARE-ee), “cert” for short.
      • certiorari to the united states court of appeals for the eleventh circuit
        • meaning that the Supreme Court had ordered the Eleventh Circuit Court of Appeals to send it the record of the case
      • To appeal your case to the Supreme Court, you submit a Petition for Writ of Certiorari to the Court, requesting it issue a writ of certiorari to the lower court hearing the case, ordering it to send up the record of the case for review.
      • The court typically “grants cert” to 100-150 of the more than 7,000 “cert petitions” it receives each year.
    • Docket Number
      • No. 17–646
    • Dates
      • Argued December 6, 2018
      • Decided June 17, 2019
    • Summary of the Court’s opinion
  • Opinion of the Court
    • Alito
  • Concurrences
    • Thomas
  • Dissents
    • Ginsburg
    • Gorsuch
Content of the Opinion
  • Facts of the case
  • Arguments
  • Citations
    • Prior Cases, often set forth as precedents, e.g.
    • Statutes, e.g.
    • Commentaries, e.g.
      • Blackstone, Commentaries on the Laws of England (1773)
      • The Federalist (the Federalist papers)
      • J Kent, Commentaries on American Law (1826).
  • Holding
    • Held: This Court declines to overturn the longstanding dual-sovereignty doctrine.
The Trick

Judicial Review

Definition
  • Judicial Review is the power of the courts to determine whether laws and actions of the legislative, executive, and administrative arms of the government are inconsistent with the Constitution, rendering them null and void.
  • Special powers are granted to certain positions in government.
  • For example,
    • A Justice of the Peace has the power to pronounce a couple husband and wife.
    • A judge has the power impose a sentence on a person convicted of a crime.
  • The Supreme Court likewise has the power to render laws and government actions null and void.
Marbury v. Madison (1803)
  • The Constitution nowhere explicitly grants the Supreme Court the power of judicial review, specifically the power to nullify laws.
    • Article III discusses “judicial power”
      • The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
      • The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made,….
      • In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, ….
    • Judicial power is the power to decide cases, rendering a binding judgment.
    • The Supreme Court can thus make rulings in cases before it, e.g. upholding or overturning the ruling of a lower court. But the Constitution nowhere explicitly says that the Supreme Court can render laws null and void.
  • In Marbury v. Madison (1803) Justice John Marshall inferred the power of judicial review.
  • Marshall’s Argument, reconstructed
    • The judicial branch has the power to determine when two rules conflict.
      • Because “it is emphatically the province and duty of the judicial department to say what the law is.” (Paragraph 141)
    • The judicial branch therefore has the power to determine whether a law enacted by Congress conflicts with the Constitution.
    • A law that conflicts with the Constitution is thereby null and void. (Auxiliary Argument below)
    • Therefore the judicial branch has the power to render a law enacted by Congress null and void.
  • Auxiliary Argument
    • If a law “repugnant to the constitution” were not thereby void, the power of the legislature would be unlimited.
    • The power of the legislature is limited by the Constitution.
    • Therefore, a law “repugnant to the constitution” is thereby void.
  • A key distinction:
    • What the Constitution explicitly states.
    • What is inferred from what the Constitution explicitly states.
Lower Courts
  • The power to nullify laws is not exclusive to the Supreme Court.  Lower courts also have this power.
  • From the Texas Tribune:
    • “Fort Worth-based U.S. District Judge Reed O’Connor on Friday ruled that a major provision of the Affordable Care Act is unconstitutional”

Common Law

Definition
  • Common law (or case law) consists of precedents decided by judges rather than statutes enacted by legislators.
    • wikipedia.org/wiki/Common_law
      • The defining characteristic of “common law” is that it arises as precedent.
    • britannica.com/topic/common-law
      • Common law, also called Anglo-American law, is the body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages. From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth.
How Common Law Evolves
  • A judge deciding a case reviews how earlier courts decided similar cases.  Typically there are applicable precedents and the judge rules accordingly.  But sometimes the case being decided either differs significantly from the earlier cases or the relevant precedents conflict.  The judge then makes her own decision based on reasoning she articulates.  Her decision may establish a new precedent. Or it may be ignored or overruled by later decisions.
  • The rationale for common law is that over time the law, in the form of precedents, becomes more refined and adapts to new circumstances.
Precedent
Stare Decisis
Common Law versus Law Code
  • Law Code (Legal Code, Civil Law, Code of Law) is a system of written laws so comprehensive and precise that, ideally, judges merely apply the law without having to make judicial decisions. There is thus no need for precedents.
  • Examples are the Napoleonic Code (1804), the German Civil Code (1896), the Swiss Civil Code (1907), and the Japanese Civil Code (1896).
  • References

How the Supreme Court uses Precedents
Following, Setting, Overruling

Following a Precedent
  • Recall that in Gamble v. United States, Terance Gamble, a felon, was found to be in possession of a handgun. He was convicted under Alabama state law and given a one-year sentence. He was then prosecuted under federal law and received a 46-month sentence on top of the one-year sentence.
  • Justice Alito, writing for the Court, ruled that Gamble’s two convictions did not violate the Double Jeopardy Clause of the Fifth Amendment.
  • He invoked what’s called the dual sovereignty doctrine, which is based on a long line of precedents. As he expressed the doctrine:
    • The Double Jeopardy Clause protects individuals from being “twice put in jeopardy” “for the same offence.” As originally understood, an “offence” is defined by a law, and each law is defined by a sovereign. Thus, where there are two sovereigns, there are two laws and two “offences.”
  • Thus, in possessing a handgun, Terance Gamble committed two offenses:
    • possessing a handgun in violation of federal law
    • possessing a handgun in violation of Alabama law.
  • Justice Thomas wrote a concurring opinion which I address later.
  • Justices Ginsburg and Gorsuch filed dissenting opinions.
  • In his dissent Justice Gorsuch set forth three arguments:
  • First, he argued that the dual sovereignty doctrine is not found in the Constitution:
    • But this “separate sovereigns exception” to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy.
  • Second, he argued that Terance Gamble committed only one offense because, citing precedents, if two laws require the same facts to prove an offense, there is only one offense.
    • As this Court explained long ago in Blockburger v. United States, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” So if two laws demand proof of the same facts to secure a conviction, they constitute a single offense under our Constitution and a second trial is forbidden. And by everyone’s admission, that is exactly what we have here: The statute under which the federal government proceeded required it to prove no facts beyond those Alabama needed to prove under state law to win its conviction; the two prosecutions were for the same offense.
  • Finally, after noting that Alito’s only real argument was an appeal to stare decisis, Gorsuch argued that Alito’s precedents were weak:
    • With the text, principles of federalism, and history now arrayed against it, the government is left to suggest that we should retain the separate sovereigns exception under the doctrine of stare decisis. But if that’s the real basis for today’s result, let’s at least acknowledge this: By all appearances, the Constitution as originally adopted and understood did not allow successive state and federal prosecutions for the same offense, yet the government wants this Court to tolerate the practice anyway.
    • Stare decisis has many virtues, but when it comes to enforcing the Constitution this Court must take (and always has taken) special care in the doctrine’s application.
    • In deciding whether one of our cases should be retained or overruled, this Court has traditionally considered :
      • the quality of the decision’s reasoning;
      • its consistency with related decisions;
      • legal developments since the decision; and
      • reliance on the decision.
    • Each of these factors, I believe, suggests we should reject the separate sovereigns exception.
  • The decision was 7-2, with only Gorsuch and Ginsburg dissenting.
  • My take:
    • The case is fundamentally a conflict between the Double Jeopardy Clause of the Constitution and a long established precedent, the dual sovereignty doctrine, which (per Gorsuch) has no basis in the Constitution. Originalists like Gorsuch argue that the Constitution trumps precedent. But overturning a long-standing precedent may have legal and real-life consequences that affect people’s lives. The Court decided 7-2 to play it safe.
Setting a Precedent and Making Law
  • Recall that in Brandenburg v. Ohio the Supreme Court ruled that the government may prohibit speech if two conditions are met:
    • The speech is “directed to inciting or producing imminent lawless action”
    • It’s “likely to incite or produce such action.”
  • In so ruling, the Supreme Court set a precedent, known as the Brandenburg Test.
  • A key question:
    • In setting the precedent was the court merely interpreting the Constitution or was it making law?
  • Was the court merely interpreting the Free Speech Clause of the First Amendment: “Congress shall make no law … abridging the freedom of speech?”
    • “Interpret” means to say what something means.
    • A plausible interpretation of the Free Speech Clause is:
      • The right of the people to free speech shall not be infringed.
    • But the Brandenburg Test goes beyond the meaning the Free Speech Clause, since the latter says nothing about imminent lawless action.
    • The Brandenburg precedent “fleshes out” the Free Speech Clause rather than “interprets” it.
  • In setting the Brandenburg precedent, did the court make law?
    • Of course it did. The Brandenburg Test is the law of the land. People are sentenced to prison, and occasionally released from prison, based on Brandenburg.
      • In 2002 Federal courts overturned Jerry Dean McCoy’s conviction for giving advice to gangs on the basis of Brandenburg. Arizona had sentenced him to 15 years in prison. (Stewart v. McCoy)
    • Here’s how Arthur Eisenberg makes the point:
      • Dear Brett Kavanaugh, Justices Do Make Law, Arthur Eisenberg ACLU
        • Judges “must interpret the law, not make the law,” observed Judge Brett Kavanaugh in accepting Donald Trump’s designation to fill Justice Anthony Kennedy’s seat on the Supreme Court. 
        • In writing opinions that will serve as precedent and in relying on precedent as a source of law, the Supreme Court functions as a common law court. The justices of the court who write these opinions are unquestionably engaged in making law, not merely in applying law.
        • By way of example, the entire body of law regarding freedom of expression has been created by the Supreme Court. The First Amendment provision pertaining to freedom of speech and press reads: “Congress shall make no law abridging freedom of speech or of the press ….” The text seems clear. But reading the text alone fails to capture the scope of the provision.
          • We know, because the Supreme Court has told us, that “no law” does not really mean “no law.” 
          • And the proscriptions of the First Amendment are not limited to “Congress.”  They apply, as well, to the executive branch and to state and local governments. 
          • Moreover, the First Amendment extends its protective reach beyond “speech” and “press” as it also guards against government censorship of movies, artwork, the internet, and other forms of expression. 
        • These deviations from the text of the First Amendment and the expansion of free expression beyond its narrow words were accomplished entirely by judicial lawmaking.
          • Prior Restraint
            • The First Amendment doctrine against “prior restraint” that was invoked in the Pentagon Papers case was a creature of judicial lawmaking.
          • Symbolic Speech
          • Vague Enactments
            • the general prohibition of “vague” enactments that secured the free speech rights of civil rights marchers in Birmingham, Alabama;
          • Content Discrimination
            • the presumption against “content-discrimination” that protected the Brooklyn Museum from the censorship efforts of former Mayor Giuliani.
        • In fashioning each of these legal doctrines the court was making law. 
Overruling a Precedent
  • The Supreme Court’s Overruling of Constitutional Precedent, CRS
    • everycrsreport.com/reports/R45319.html
    • When deciding whether to overrule a precedent interpreting the Constitution, the Court has historically considered several “prudential and pragmatic” factors that seek to foster the rule of law while balancing the costs and benefits to society of reaffirming or overruling a prior holding:
      • Quality of Reasoning.
        • When determining whether to reaffirm or overrule a prior decision, the Supreme Court may consider the quality of the decision’s reasoning.
      • Workability.
        • Another factor that the Supreme Court may consider when determining whether to overrule a precedent is whether the precedent’s rules or standards are too difficult for lower federal courts or other interpreters to apply and are thus “unworkable.”
      • Inconsistency with Related Decisions.
        • A third factor the Supreme Court may consider is whether the precedent departs from the Court’s other decisions on similar constitutional questions, either because the precedent’s reasoning has been eroded by later decisions or because the precedent is a recent outlier when compared to other decisions.
      • Changed Understanding of Relevant Facts.
        • The Supreme Court has also indicated that changes in how the Justices and society understand a decision’s underlying facts may undermine a precedent’s authoritativeness, leading the Court to overrule it.
      • Reliance.
        • Finally, the Supreme Court may consider whether it should retain a precedent, even if flawed, because overruling the decision would injure individuals, companies, or organizations; society as a whole; or legislative, executive, or judicial branch officers, who had relied on the decision.
  • List of overruled United States Supreme Court decisions (Wikipedia)
    • As of 2018, the Supreme Court had overruled more than 300 of its own cases.
  • Ramos v. Louisiana, 2020
    • A unanimous decision for a felony conviction has long been constitutionally required in federal court as a matter of the Sixth Amendment right to trial by jury. Not so in the state courts of Oregon and Louisiana, where a conviction can rest on less than a unanimous verdict.
    • Writing for the court, Justice Gorsuch (an originalist) ruled that the Sixth Amendment, as incorporated against the states, requires that a jury find a criminal defendant guilty by a unanimous verdict.
    • oyez.org/cases/2019/18-5924
    • A Precedent Overturned Reveals a Supreme Court in Crisis Linda Greenhouse NYT
      • On 10 previous occasions, including three times in the past three years, the court denied petitions from Louisiana and Oregon inmates appealing jury verdicts that were not unanimous.
      • In the most recent denial, in June 2018, the court turned down a petition filed by the same lawyer who represented Mr. Ramos. That petition, Magee v. Louisiana, presented precisely the same question, word for word. The court denied review after only one conference, with no noted dissent and without even requesting a response from the state.
      • So something changed between June 2018 and March 2019, when the court granted the Ramos case. I think the change is obvious: Justice Anthony Kennedy retired and Justice Brett Kavanaugh took his place.

Philosophies of Judicial Decision Making

Background

The Constitution says nothing about how it should be interpreted or how justices should decide cases.

Philosophies of Judicial Decision-Making

Originalism

  • Originalism is the doctrine that the original public meaning of the Constitution is authoritative.
    • The original public meaning of a constitutional provision is what a reasonable, knowledgeable person would have understood it to mean when ratified.
  • Therefore:
    • A law is unconstitutional if it is incompatible with the original public meaning.
    • A constitutional right to X exists only if it’s stated or implied by the original public meaning.

Living Constitutionalism

  • Living Constitutionalism is the doctrine that judicial decision-making is a matter of how best, if at all, to extend the Constitution (by precedent) to the case before the Court. 
  • Justices should make decisions like common law judges, based on the facts of the case, precedents, Constitutional provisions, principles of justice and fairness, and the projected consequences of competing decisions.
A Hypothetical Example
  • Facts of the case:
    • A state prohibits the sale, possession, and use of contraceptives.  A person is arrested, tried, and found guilty.  The verdict is appealed.  The case makes it to the Supreme Court.
  • Originalist Argument
    • The original public meaning of the Constitution says nothing about the use of contraceptives.  Since the original public meaning is authoritative, there’s no constitutional basis for overturning the anti-contraceptive law.  The matter should be left to the people to decide, through their democratically elected officials. 
    • The people’s decision may take the form of
      • federal legislation,
      • a constitutional amendment,
      • state legislation, or
      • an amendment to a state constitution.
  • Living Constitutionalist Argument
    • The ban on contraceptives violates the basic human right to family planning. Since no such right is explicit in the Constitution, the Court must establish the right by precedent.
    • This can be done by expanding the interpretation of “liberty” of the Due Process Clause of the Fourteenth Amendment to include the right to family planning.
  • Due Process Clause
    • “nor shall any state deprive any person of life, liberty, or property, without due process of law”

Cases of Conflict

Miranda v. Arizona (1966)
  • Ernesto Miranda was arrested and brought to the police station where he was interrogated by police officers regarding a kidnapping and rape. Miranda was not advised that he had a right to an attorney. After two hours, Miranda signed a written confession.
  • Chief Justice Warren, writing for the Court, argued:
    1. No person shall be compelled to incriminate himself, per the Fifth Amendment:
      • “nor shall be compelled in any criminal case to be a witness against himself”
    2. Therefore, no person suspected or accused of crime shall be compelled to incriminate himself in an in-custody interrogation.
    3. In-custody interrogations put pressure on a suspect to incriminate himself, a form of compulsion.
      • “An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described [in police interrogation manuals] cannot be otherwise than under compulsion to speak.”
    4. To neutralize that pressure, therefore, the suspect must be apprised of his rights.
  • Justice White’s dissenting argument, reconstructed:
    • The Self-Incrimination Clause of the Fifth Amendment, which prohibits a defendant in a criminal proceeding from being compelled to give oral testimony against himself, says nothing about in-custody interrogations or informing a suspect of his rights.
    • Therefore the Self-Incrimination Clause of the Fifth Amendment does not require the police to inform a suspect in custody of his rights.
  • The conflict, in short:
    • Warren:
      • In-custody interrogations unjustly pressure a suspect to incriminate himself. Requiring that a suspect in custody be informed of his rights remedies this injustice.
    • White:
      • The Fifth Amendment does not require the police to inform a suspect in custody of his rights.
Reynolds v. Sims (1964)
  • A state voting district in Alabama, Jefferson County, had 41 times the number of eligible voters as another district in the state.  David Sims of Jefferson County filed a lawsuit alleging that the large discrepancy in voters diluted his vote, violating the Equal Protection Clause of the Fourteenth Amendment.
  • Chief Justice Earl Warren, writing for the majority, argued that
    1. Fairness requires that everyone’s vote has the same weight.
      • “Since the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators.”
    2. A vote from a larger voting district has less weight than a vote from a smaller district.
      • “The resulting discrimination against those individual voters living in disfavored areas is easily demonstrable mathematically. Their right to vote is simply not the same right to vote as that of those living in a favored part of the State. Two, five, or 10 of them must vote before the effect of their voting is equivalent to that of their favored neighbor. Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable.”
    3. Therefore, fairness requires that voting districts have the same number of members.
  • Justice Harlan’s dissenting argument, reconstructed:
    • The ratifiers of the Fourteenth Amendment did not understand “the  Equal Protection Clause [to limit] the power of the States to apportion their legislatures as they saw fit.”
    • Therefore “the  Equal Protection Clause [did not limit] the power of the States to apportion their legislatures as they saw fit.”
  • The conflict, in short:
    • Warren:
      • It’s unfair that one person’s vote has more weight than another.
    • Harlan
      • The  Equal Protection Clause of the Fourteenth Amendment does not limit the power of the States to apportion their legislatures as they see fit.
Lawrence v. Texas (2003)
  • Two men were convicted of violating Texas “Homosexual Conduct” law:
    • “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.”
  • Writing for the majority in a 6-3 opinion, Justice Kennedy argued that
    • People have a right to liberty under the Due Process Clause of the 14th Amendment that extends to their private sexual conduct, whether same-sex or not.
    • That a state’s governing majority regards certain sexual conduct as immoral is not a sufficient reason to make it a crime.
  • Concurrence
    • Justice O’Connor
      • A law that treats different groups differently violates the Equal Protection Clause of the Fourteenth Amendment unless there is a rational basis for the difference in treatments.
      • The Texas statute makes sodomy a crime only if a person “engages in deviate sexual intercourse with another individual of the same sex.” Sodomy between opposite-sex partners is not a crime in Texas.
      • Texas has no rational basis for punishing same-sex sodomy but not opposite-sex sodomy.
      • Therefore the Texas statute violates the Equal Protection clause.
  • Dissents
    • Thomas Argument, reconstructed
      • There is no right to privacy or personal liberty in the Constitution.
      • Therefore, there is no constitutional right to private sexual conduct.
    • Scalia first argument, reconstructed.
      • The Texas statute against deviate sexual intercourse between members of the same sex furthers a reasonable and legitimate state interest: reinforcing the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable.”  Like bigamy, adult incest, bestiality, and obscenity.
      • Therefore, the Texas statute is constitutional.
    • Scalia second argument, reconstructed.
      • In Washington v. Glucksberg, the Court held that “liberty” under the Due Process Clause protects only those rights that are “deeply rooted in this Nation’s history and tradition.”
      • Same-sex sodomy is not “deeply rooted in this Nation’s history and tradition.”
      • Therefore, the Due Process Clause does not protect same-sex sodomy.
  • Conflict in short:
    • Kennedy
    • O’Connor
      • The Texas law is unfair to same-sex couples since it does not punish heterosexual couples for the same behavior.
    • Originalists:
      • The original public meaning of the Constitution does not include the right of same-sex couples to private sexual conduct. Therefore same-sex couples have no constitutional right to private sexual conduct. The matter should be left to the people to decide through their elected representatives.
Obergefell v. Hodges (2015)
  • Same-sex couples sued state agencies in Ohio, Michigan, Kentucky, and Tennessee challenging bans on same-sex marriage and refusals by state officials to recognize same-sex marriages from other states.
  • Justice Kennedy, writing for the Court, presented two arguments for the right of same-sex couples to marry:
    • First Argument
      • Precedents establish four reasons why the right to marry is fundamental and therefore protected by the Due Process clause of the Fourteenth Amendment. The right to marry:
        • is inherent to the concept of individual autonomy,
        • protects the most intimate association between two people,
        • safeguards children and families by according legal recognition to building a home and raising children, and
        • has historically been recognized as the keystone of social order.
      • These reasons apply equally to heterosexual and same-sex couples.
      • Therefore, like  heterosexual couples, same-sex couples have a right to marry, protected by the Due Process clause of the Fourteenth Amendment.
    • Second Argument
      • Denying same-sex couples the right to marry and to enjoy the same benefits afforded opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment since there is no difference, relevant to the right to marry, between same-sex couples and heterosexual couples.
  • Dissents
    • Roberts’s Argument, reconstructed
      • The Constitution says nothing about same-sex marriage.
      • Therefore, the decision whether to recognize same-sex marriage is left to the people decide, through their democratically elected representatives.
    • Scalia’s Argument, reconstructed
      • The ratifiers of the Fourteenth Amendment did not understand it to prohibit limiting marriage to one man and one woman.
      • Therefore the Fourteenth Amendment does not prohibit limiting marriage to one man and one woman.
    • Thomas Argument, reconstructed
      • As used in the Due Process Clauses, “liberty” means freedom from something e.g. freedom from physical restraint or freedom from governmental action.
      • The right to marry, however, is a right to certain entitlements, e.g. state-issued marriage licenses and governmental benefits for married couples.
      • Therefore, the “liberty” of the Due Process Clauses does not include the right to marry.
    • Alito Argument, reconstructed
      • To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court held in Washington v. Glucksberg that “liberty” under the Due Process Clause protects only those rights that are “deeply rooted in this Nation’s history and tradition.”
      • Same-sex marriage is not “deeply rooted in this Nation’s history and tradition.”
      • Therefore, the Due Process Clause does not protect same-sex marriage.
  • The conflict, in short:
    • Kennedy:
      • Same-sex couples have the same right to marry as heterosexual couples, since the right to marry is based on principles that apply equally to both.
      • It’s unfair that same-sex couples are not entitled to the recognition, privileges, and benefits afforded to opposite-sex married couples.
    • Dissenters:
      • The Constitution says nothing about marriage. Therefore, the decision whether to recognize same-sex marriage is left to the people decide, through their democratically elected representatives.

Originalism

Two Versions
  • Original Intent
    • Original Intent Originalism is the view that the text of the Constitution should be interpreted based on:
      • “the original intent of the people who drafted, proposed, adopted, or ratified the Constitution to determine what those people wanted to convey through the text. According to this view, original intent may be found in sources outside of the text, such as debates in the Constitutional Convention or the Federalist Papers.”
    • Robert Bork, whose nomination to the Supreme Court was rejected by the Senate in 1987, was a prominent proponent of this approach.
    • The view has lost favor among judges and scholars because it often proved too difficult to find “the original intent” among the intentions of the many people writing and ratifying the Constitution.
  • Original Public Meaning
    • Original Public Meaning Originalism, the predominant view today, holds
      • The original public meaning of a constitutional provision is what a reasonable, knowledgeable person would have understood it to mean when ratified.
      • The original public meaning is authoritative.
    • Per Amy Coney Barrett:
      • “Originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.”
      • “Originalism rests on two basic claims. First, the meaning of constitutional text is fixed at the time of its ratification. Second, the original meaning of the text controls because “it and it alone is law.””
    • Per Keith E. Whittington:
      • “At its most basic, originalism argues that the discoverable public meaning of the Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation.”
      • “The two crucial components of originalism are the claims that constitutional meaning was fixed at the time of the textual adoption and that the discoverable historical meaning of the constitutional text has legal significance and is authoritative in most circumstances.”
    • Antonin Scalia was the most prominent proponent of this form of Originalism.  Originalists of this ilk on the current court are Justices Barrett and Gorsuch. Justice Alito calls himself a “practical originalist.”
  • Scalia on original intent and original public meaning, from A Matter of Interpretation:
    • “I will consult the writings of some men who happened to be delegates to the Constitutional Convention—Hamilton’s and Madison’s writings in The Federalist, for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood.”
Determining Original Public Meaning
  • The original public meaning of a constitutional provision is what a reasonable, knowledgeable person would have understand it to mean when ratified.
  • Determining the original public meaning of constitutional text involves consulting historical dictionaries, researching how words and phrases were used at the time, and researching “sources like the Constitutional Convention, the ratification debates, the Federalist and Anti-Federalist Papers, actions of the early Congresses and Presidents, and early opinions of the federal courts.” (Amy Coney Barrett, Notre Dame Law Review, 2017)
  • The idea is to determine how reasonable, knowledgeable people understood the text at the time.
  • Take “judicial Power”, for example.  Article III Section 1 of the Constitution begins:
    • “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
  • The Constitution neither defines judicial Power nor lists the particular powers it includes.  A trial judge has certain powers, for example the powers to find a person in contempt of court and to pronounce a sentence.  “Judicial power” includes these.  But does it include the fundamental power to render a law null and void?  To decide the matter an Originalist looks for evidence, not only within the constitutional text, but also “in the records of the Constitutional Convention, in the ratification conventions, and in some of the controversies and writings that immediately followed ratification.” (The Original Meaning of the Judicial Power, 2004, Randy Barnett)
Objection #1: Ratifier Implication
  • Justices Scalia, Thomas, and others use a curious form of argument:
    • The ratifiers understood constitutional provision C to prohibit (permit, require, limit the power of, etc.) X
    • Therefore constitutional provision C prohibits (permits, requires, limits the power of, etc.) X.
  • They also use its negative form:
    • The ratifiers did not understand constitutional provision C to prohibit (permit, require, limit the power of, etc.) X
    • Therefore constitutional provision C does not prohibit (permit, require, limit the power of, etc.) X.
  • For example, in his Concurrence in Gamble v. United States Justice Thomas argued, in effect:
    • The ratifiers did not understand the Double Jeopardy Clause to prohibit separate prosecutions by a state and also by the Federal Government for the same offense. 
    • Therefore the Double Jeopardy Clause does not prohibit separate prosecutions by a State and by the Federal Government for the same offense. 
  • The form of argument, however, leads to absurd results:
    • Suppose the Constitution included an Infection Provision that said:
      • No person with an infectious disease shall enter the United States.
    • Assume that people at the time of ratification believed that polio was not infectious.
    • The following is a logical analog of Thomas’ argument:
      • The ratifiers did not understand the Infection Provision to prohibit people sick with polio from entering the United States.
      • Therefore the Infection Provision does not prohibit people sick with polio from entering the United States.
    • Since polio is indeed known to be infectious, the Infection Provision would today prohibit people sick with polio from entering the United States.
    • (This scenario is based on a counterexample from The Meaning of the Original Meaning, Mark D. Greenberg & Harry Litman, Georgetown Law Journal)
    • The fallacy is that what a person understands a law to prohibit or not prohibit may be based on empirical falsehoods. A person who correctly understands the Infection Provision but falsely believes that polio is not infectious wrongly understands (i.e. incorrectly believes) that the Infection Provision does not prohibit people sick with polio from entering the United States.
    • Justices Scalia and Thomas may have been tricked by language. The sentence
      • “the ratifiers did not understand the Double Jeopardy Clause to prohibit separate prosecutions by state and federal governments”
    • merely means
      • “the ratifiers did not believe that the Double Jeopardy Clause prohibits separate prosecutions by state and federal governments”
    • The danger of using “understand” is that an originalist may be fooled into inferring that the non-belief, that the Double Jeopardy Clause prohibits separate prosecutions by state and federal governments, is part of the ratifiers’ understanding of the the Double Jeopardy Clause and therefore part of its original public meaning.
  • Justice Scalia’s well known argument that the Eighth Amendment does not prohibit capital punishment uses this form of reasoning:
    • The ratifiers did not understand the Eighth Amendment to prohibit capital punishment.
      • Since execution was a common form of punishment in 1791.
    • Therefore the Eighth Amendment does not prohibit capital punishment.
  • But the ratifiers’ non-belief that the Eighth Amendment prohibited capital punishment is not part of the meaning of the amendment, just as the non-belief that the Infection Provision prohibited people sick with polio from entering the United States is not part of the meaning of the provision.
  • Not all Originalist subscribe to Ratifier Implication. Compare Justice Thomas’ argument in his concurrence in Gamble v. United States to the argument Justice Gorsuch puts forth in his dissent:
    • The Double Jeopardy Clause prohibits a person from being prosecuted for the same offense twice.
    • Therefore the Double Jeopardy Clause prohibits separate prosecutions for the same offense by a state and also by the Federal Government 

Objection #2: Tyranny of the Majority
  • A common Originalist argument has the form:
    • The Constitution says nothing about issue X.
    • Therefore, X should be left to the the people to decide, through their democratically elected representatives.
  • For example:
    • The Constitution says nothing about the conditions under which abortion is prohibited.
    • Therefore, the conditions under which abortion is prohibited should be left to the the people to decide, through their democratically elected representatives.
  • The problem with leaving an issue such as abortion to elected representatives is the “tyranny of the majority,” that a democratic majority who disapproves of certain behavior can make it a crime.
  • Roe v. Wade prevented the majority making abortion a crime.
Objection 3: The Problem of Precedent
  • Precedents pose a dilemma for Originalists:
  • Justice Amy Coney Barrett articulates the problem in Originalism and Stare Decisis, Notre Dame Law Review (2017)
    • “But what happens when precedent conflicts with the original meaning of the text? If Justice Scalia is correct that the original public meaning is authoritative, why is the Court justified in departing from it in the name of a judicial policy like stare decisis? The logic of originalism might lead to some unpalatable results. For example, if the original meaning of the Constitution’s Gold Clauses prohibits the use of paper money, is an originalist bound to plunge the economy into ruin?
    • But for an originalist, the decision whether to follow erroneous precedent can be more than a matter of weighing the costs and benefits of change. At least in cases involving the interpretation of constitutional text, originalists arguably face a choice between following and departing from the law embodied in that text. While the debate about stare decisis is old, modern originalism introduced a new issue: the possibility that following precedent might sometimes be unlawful.
  • For a pragmatic Originalist like Scalia, utilitarian considerations sometimes outweigh the authority of the original public meaning. The problem for such “faint-hearted originalists” is that there’s no principle for determining, in a given case, which takes precedence.
  • For a principled Originalist, though, it would seem that a conflicting precedent should always be overturned, the consequences be damned.

Living Constitutionalism

  • Living Constitutionalism is the doctrine that judicial decision-making is a matter of whether to extend the Constitution (by precedent) to apply to the case before the Court and, if so, how. 
  • Justices should make decisions like common law judges, based on the  facts of the case, precedents, Constitutional provisions, principles of justice and fairness, and the projected consequences of competing decisions.
Objection #1: No Guiding Principle
  • Antonin Scalia, from A Matter of Interpretation
    • “Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution.”
    • “I do not suggest, mind you, that originalists always agree upon their answer. There is plenty of room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text.”
  • Justice Scalia’s analogy of Living Constitutionalism with evolution is apt.  The body of constitutional law evolves as precedents are made, changed, and overruled.  Like the evolution of plants and animals, guided by natural selection, common law evolution is guided by principles such as:
    • justice and fairness,
    • projected consequences of competing decisions,
    • human rights,
    • historical practices of the political branches,
    • respect for the constitutional divisions of power.
Objection #2: The Meaning of the Constitution Doesn’t Change
  • On Originalism in Constitutional Interpretation, Interactive Constitution Steven G. Calabresi
    • “Originalism is usually contrasted as a theory of constitutional interpretation with Living Constitutionalism. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution.”
  • But Living Constitutionalism is perfectly consistent with the view that the meaning of constitutional text is fixed.
  • The meaning of a word must be distinguished from its denotation, i.e. the set of things of which the word is true.  For example, “Infectious disease” means disease caused by the invasion of the body by pathogenic microorganisms that proliferate.  Its denotation includes diseases such as influenza, malaria, meningitis, rabies, and tetanus. The diseases are not part its meaning.
  • The unchanging meaning of the words of the Constitution must therefore be distinguished from their changing denotation.  As Justice George Sutherland put it in Village of Euclid v. Ambler Realty Co. (1926):
    • “While 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.”
  • Consider the Fifth Amendment, which says in part that “nor shall private property be taken for public use without just compensation.”
  • The meaning of “just compensation” is the same today as it was in 1791.
  • What’s changed is the assessment of what constitutes just compensation. $1,000 might have been just compensation for an acre of land in 1791, but not today.

The Current Court

Official Websites
Liberal-Conservative Continuum

By Randy Schutt – Own work, CC BY-SA 3.0 commons.wikimedia.org/w/index.php?curid=29585342

Breyer’s center-left path on the Supreme Court, in two charts, WaPo

Breyer’s center-left path on the Supreme Court, in two charts, WaPo

Supreme Court Database
  • Website
  • Sortable table from SC Database of lifetime percentage “liberal” scores of Supreme Court justices from 1946 to 2017
    • Wikipedia Liberal Voting Percentage
      • The higher the percentage the more liberal the score
      • The term Liberal “is most appropriate in the areas of criminal procedure, civil rights, and First Amendment cases, where it signifies pro-defendant votes in criminal procedure cases, pro-women or pro-minorities in civil rights cases, and pro-individual against the government in First Amendment cases.”
        • Criminal procedure
          • a higher number means pro-defendant votes in cases involving the rights of persons accused of crime, except for the due process rights of prisoners.
        • Civil rights
          • a higher number means more votes permitting intervention on First Amendment freedom cases which pertain to classifications based on race (including Native Americans), age, indigence, voting, residence, military, or handicapped status, sex, or alienage.
        • First Amendment
          • a higher number reflects votes that advocate individual freedoms with regard to speech.
  • Justices sometimes change their left-right ideology while on the bench.
    • David Souter Oyez
      • Regarded by Republicans as a “home run” nomination to support their ideologies, Justice Souter furthered his status as an enigma and surprised everyone when he served on the Supreme Court of the United States and voted reliably with the court’s liberal members.
    • Harry Blackman Oyez
      • Justice Blackmun initially established himself as a conservative on the court.
      • As he began to gain confidence, Blackmun gradually moved towards the liberal side and became more outspoken in his beliefs.
      • Blackmun wrote the majority opinion in Roe v. Wade

Statutory Interpretation

  • The issue in most Supreme Court cases is not the meaning of a constitutional provision but the meaning of a statute, e.g. the Affordable Care Act.
  • Two approaches to statutory interpretation:
    • Textualism
      • A provision of a statute should be interpreted only by its words, as they are commonly understood.
    • Purposivism
      • A provision of a statute should be interpreted not only by its words but also within the context of the statute as a whole and by the statute’s legislative intent and history.
  • Example: King v. Burwell (2015):
    • The Affordable Care Act provides that a taxpayer is eligible for tax credits only if the taxpayer is enrolled in an insurance plan through “an Exchange established by the State” (Section 36B). The IRS interpreted this to mean that tax credits were available to anyone enrolled in an insurance plan through an Exchange established either a state or by the federal government (healthcare.gov).
    • The issue in King v. Burwell was whether the phrase “an Exchange established by the State” included healthcare.gov.
    • Justice Roberts, writing for the majority:
      • When read in context, the phrase “an Exchange established by the State under ” is properly viewed as ambiguous.
      • Given that the text is ambiguous, the Court must look to the broader structure of the Act to determine whether one of Section 36B’s “permissible meanings produces a substantive effect that is compatible with the rest of the law.”
      •  The Act’s context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.
    • Justice Scalia, dissenting:
      • This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under 36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under 36B.

Addenda

An Originalist’s Liberal Opinion
  • Bostock v Clayton CountyOyez
    • Clayton County terminated Gerald Bostock, a gay man, allegedly for “conduct unbecoming of its employees.”
    • Bostock filed a lawsuit against the county alleging discrimination based on sexual orientation, in violation of Title VII of the Civil Rights Act of 1964.
  • law.cornell.edu/supremecourt/text/17-1618
    • Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1).
  • Gorsuch, writing for the 6-3 majority, ruled that an employer who fires an individual merely for being gay or transgender violates Title VII. 
  • Alito Dissent
    • “Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” Neither “sexual orientation” nor “gender identity” appears on that list.”
  • Kavanaugh Dissent
    • “The question here is whether Title VII  should be expanded to prohibit employment discrimination because of sexual orientation. Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”
  • Gorsuch’s argument, reconstructed
    • Title VII of the the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual based on sex.
    • It impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
    • Therefore, Title VII of the the Civil Rights Act of 1964 prohibits an employer from discriminating against a person for being homosexual or transgender.
  • Gorsuch’s argument for the second premise (“It is impossible to discriminate ….”)
    • “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
  • But-for test (law.cornell.edu/wex/but-for_test)
    • The but-for test is a test commonly used in both tort law and criminal law to determine actual causation. The test asks, “but for the existence of X, would Y have occurred?”
Another Scalia Ratifier Implication Argument
  • From Scalia’s dissent in Obergefell v. Hodges.
    • “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.”
  • Scalia’s argument reconstructed:
    • The ratifiers did not understood the Due Process and Equal Protection clauses of the 14th Amendment to prohibit limiting marriage to one man and one woman.
    • Therefore the Due Process and Equal Protection clauses of the 14th Amendment do not prohibit limiting marriage to one man and one woman.
Evaluative Terms in the Constitution
  • Compare
    • The car was going over 80 mph.
    • The car was going at an excessive speed.
  • The truth of the first can be determined empirically, by measurement. The second requires a criterion or standard for determining the conditions under “excessive speed” is true.
  • The Constitution uses evaluativeterms like “excessive speed.”
    • Amendment IV prohibits “unreasonable searches and seizures.”
    • Amendment V says that “no person deprived of life, liberty, or property, without due process of law.”
    • Amendment V also says that “nor shall private property be taken for public use without just compensation.”
    • Amendment VIII says that “excessive bail shall not be required, nor excessive fines imposed.”
  • The meaning of an evaluative term does not include its criterion of application. The meaning of “excessive speed” – exceeding a reasonable or acceptable speed – does not imply going over 80 mph.
How Gorsuch Understands Original Public Meaning
  • Why Originalism Is the Best Approach to the Constitution, Neil Gorsuch Time
    • Originalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with new developments and new technologies. Consider a few examples.
      • As originally understood, the term “cruel” in the Eighth Amendment’s Cruel and Unusual Punishments Clause referred (at least) to methods of execution deliberately designed to inflict pain. That never changes. But that meaning doesn’t just encompass those particular forms of torture known at the founding. It also applies to deliberate efforts to inflict a slow and painful death by laser. 
      • As originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet. 
      • Or consider the Fourth Amendment. As originally understood, it usually required the government to get a warrant to search a home. And that meaning applies equally whether the government seeks to conduct a search the old-fashioned way by rummaging through the place or in a more modern way by using a thermal imaging device to see inside. 
    • Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise.
Literal and Figurative Language in the Constitution
  • A clear case of figurative meaning in the Constitution:
    • Double Jeopardy Clause of the Fifth Amendment
      • “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”
      • “Put in jeopardy of life or limb” is clearly a figure of speech, probably for prosecuted.
      • The Double Jeopardy Clause thus means:
        • No person shall be prosecuted for the same offense twice.
  • Not so clear cases:
    • Commander in Chief Clause of Article II
      • “The President shall be commander in chief of the Army and Navy of the United States.”
        • Taken literally this means that the president commands the land and sea forces of the US military.
        • Under this interpretation, the president is not the commander in chief of the Air Force, which would require a constitutional amendment.
      • Taken figuratively, there’s no problem. The Commander in Chief Clause means that the president is commander of the armed forces of the US.
    • Cruel and Unusual Clause of the Eighth Amendment
      • “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
      • Taken literally this prohibits cruel punishments rarely used. But not cruel punishments in common use.
      • Taken figuratively, this prohibits inhumane punishment.
    • Free Speech Clause of the First Amendment.
      • “Congress shall make no law … abridging the freedom of speech, or of the press.
      • Taken literally, as Justice Hugo Black pointed out, “make no law” means “no law.”
      • In contrast, Antonin Scalia interprets the clause figuratively, even naming the figure of speech:
        • “Take, for example, the provision of the First Amendment that forbids abridgment of “the freedom of speech, or of the press.” That phrase does not list the full range of communicative expression. Handwritten letters, for example, are neither speech nor press. Yet surely there is no doubt they cannot be censored. In this constitutional context, speech and press, the two most common forms of communication, stand as a sort of synecdoche for the whole. That is not strict construction, but it is reasonable construction.”
          • merriam-webster.com/dictionary/synecdoche
            • a figure of speech by which a part is put for the whole (such as fifty sail for fifty ships), the whole for a part (such as society for high society), the species for the genus (such as cutthroat for assassin), the genus for the species (such as a creature for a man), or the name of the material for the thing made (such as boards for stage)
        • Evidently Scalia understands the Free Speech Clause to mean:
          • Congress shall make no law abridging the freedom of communication.
Sources of US Law
  • Administrative regulations
  • Constitution
  • Federal and state statutes
  • Precedents (case law, common law)
  • Treaties
Tyranny of the Majority
  • An inherent weakness of democracy is the risk of the tyranny of the majority, that an elected majority may pass laws oppressing the minority, for example, by making behavior of which they disapprove—contraception, abortion, same-sex sexual relations—a crime.
  • John Adams, A Defence of the Constitutions of Government of the United States of America
    • If the majority were to control all branches of government, he declared, “debts would be abolished first; taxes laid heavy on the rich, and not at all on others; and at last a downright equal division of everything be demanded and voted.”
  • John Stuart Mill, On Liberty
    • “The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power.”
  • Alexis de Tocqueville, Democracy in America,
    • “When an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority, and implicitly obeys its injunctions; if to the executive power, it is appointed by the majority, and remains a passive tool in its hands; the public troops consist of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain States even the judges are elected by the majority. However iniquitous or absurd the evil of which you complain may be, you must submit to it as well as you can.”
  • Quote
    • “Democracy is two wolves and a lamb voting on what they are going to have for lunch.”

Moore v. Harper

  • Moore v. Harper, a case before the Supreme Court, concerns a congressional voting map drawn by the North Carolina Legislature favoring Republicans that was nullified by the state’s Supreme Court as a partisan gerrymander.  That should have ended the matter.  But the legislature appealed the decision to the US Supreme Court, arguing that the state supreme court had no authority in the matter. They cited the Elec­tions Clause of the Constitution, which says:
    • “The Times, Places and Manner of hold­ing Elec­tions for Senat­ors and Repres­ent­at­ives, shall be prescribed in each State by the Legis­lature thereof; ….”
  • The legislature’s argument was that the clause puts the Legis­lature in charge and the Legislature alone, since there’s no mention of the state supreme court.
  • The Elec­tions Clause of the Constitution says:
    • “The Times, Places and Manner of hold­ing Elec­tions for Senat­ors and Repres­ent­at­ives, shall be prescribed in each State by the Legis­lature thereof; but the Congress may at any time by Law make or alter such Regu­la­tions.”
  • The Pres­id­en­tial Elect­ors Clause says:
    • “Each State shall appoint, in such Manner as the Legis­lature thereof may direct, a Number of Elect­ors.”
  • So, per the Constitution, state legislatures prescribe
    • the times, places, and manner of hold­ing federal elec­tions for senat­ors and repres­ent­at­ives
    • the manner in which states appoint electors in presidential elections
  • The power of state legislatures to regulate federal elections has traditionally been taken to be limited by the same constraints it is subject to when passing legislation, e.g. being vetoed by the governor or ruled unconstitutional by the state supreme court.
  • Four justices on the current Court – Clar­ence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch – subscribe to what’s called the Independent State Legis­lature Theory, which interprets the word “Legis­lature” in these clauses to mean the legislature alone, not subject to external constraints, reviews, or rulings.
  • What would happen if the Supreme Court accep­ted the inde­pend­ent state legis­lature theory?
    • First Thing. No judge, federal or state, could stop a state legislature from partisan gerrymandering, no matter how egregious.
      • No state judge because of this ruling.
      • No federal judge because of Rucho v. Common Cause, the Supreme Court ruling that partisan gerrymandering is beyond the purview of the federal courts.
    • Second Thing. State legislatures might be able to overturn the results of elections.
      • How Six States Could Overturn the 2024 Election, Barton Gellman Atlantic
      • The pernicious threat of ISL, wrote Richard L. Hasen, an election-law expert at UCLA, is that “a state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore the legislature will take matters into its own hands and choose its own slate of electors.”
      • But in a commentary on the Moore case, former White House Counsel Bob Bauer and the Harvard Law Professor Jack Goldsmith identified another legal threat to presidential elections that they regard as more serious. According to the Electoral Count Act, state lawmakers may discard presidential voting results and appoint electors instead by declaring that the voters have “failed to make a choice”—a phrase that is undefined in the law and was exploited in rogue vote-stealing efforts in 2020. A legislature could seize on any irregularity, or baseless allegations of fraud, to claim that voters had failed to make a choice.
  • From The ‘Independent State Legislature Theory,’ Explained Brennan Center
    • What would happen if the Supreme Court accep­ted the inde­pend­ent state legis­lature theory?
    • The inde­pend­ent state legis­lature theory would cause signi­fic­ant disrup­tion by poten­tially nulli­fy­ing state consti­tu­tional provi­sions regard­ing federal elec­tions. State consti­tu­tional bans on gerry­man­der­ing in Flor­ida, Ohio, North Caro­lina, and other states could die, as could inde­pend­ent redis­trict­ing commis­sions in Arizona, Cali­for­nia, Michigan and other states. Other state consti­tu­tional provi­sions — like the right to a secret ballot in many states — could also be wiped out
  • Is Democracy Constitutional?, Adam Serwer Atlantic
    • Some states have made progress in trying to end partisan gerrymandering, through constitutional amendments or state redistricting commissions. But if the Supreme Court accepts the independent-state-legislature theory, that progress would be entirely wiped out. In the 2019 case Rucho v. Common Cause, the Supreme Court said that federal courts couldn’t review partisan gerrymandering, but that that was fine because state courts could, based on provisions in state constitutions.
    • “The Court said, ‘Never fear. If you want to address partisan gerrymandering, go to state courts, because state constitutions provide people with an avenue forward,’” Wolf told me. “If the Court then turns around three or four years later and says, ‘Actually, state constitutions don’t constrain legislatures and their federal-election lawmaking,’ then the promise of Rucho was a false promise.”
  • How Six States Could Overturn the 2024 Election, Barton Gellman Atlantic
    • The pernicious threat of ISL, wrote Richard L. Hasen, an election-law expert at UCLA, is that “a state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore the legislature will take matters into its own hands and choose its own slate of electors.”
    • But in a commentary on the Moore case, former White House Counsel Bob Bauer and the Harvard Law Professor Jack Goldsmith identified another legal threat to presidential elections that they regard as more serious. According to the Electoral Count Act, state lawmakers may discard presidential voting results and appoint electors instead by declaring that the voters have “failed to make a choice”—a phrase that is undefined in the law and was exploited in rogue vote-stealing efforts in 2020. A legislature could seize on any irregularity, or baseless allegations of fraud, to claim that voters had failed to make a choice.
  • From A new Supreme Court case threatens another body blow to our democracy, Leah Litman, Kate Shaw and Carolyn Shapiro WaPo
    • The theory would lead to a chaotic system in which states could not reliably hold unified elections for state and federal offices. Common state constitutional provisions guaranteeing that elections be “free,” “free and equal,” or “free and open” would not apply to laws governing federal elections, but would still apply to laws governing state elections.
    • So, for example, if a state court relied on a state constitutional provision to strike down burdensome registration or voter ID requirements, those requirements would nonetheless remain in place for federal elections. The state would end up with two systems — one for federal elections and one for state elections.
    • Fortunately, even if the court embraces the revanchist ISLT, that would not permit state legislatures to throw out votes already cast to appoint presidential electors of their choosing. The federal Constitution prohibits states from disregarding votes already cast, no matter what the court might say in Harper.

Quick Take

  • An inherent weakness of democracy is the risk of the tyranny of the majority, that an elected majority may pass laws oppressing the minority, for example, by making behavior of which they disapprove—contraception, abortion, same-sex sexual relations—a crime.
  • Rights protect individuals from the tyranny of the majority.