Tuesday, March 15, 2011

Republicans Should be Embarrassed....

I am a "plain meaning" fan, for the Constitution. Sure, the words have to be interpreted, and there is a large body of midrash to go with the Constitutional Torah.

But this is a problem with any contract, and judges are good at interpreting contracts when there is a dispute over meaning. That is ALL Constitutional law should be about: the meaning of the contract. And you can only change the contract with unanimous consent. As Rousseau put it:

There is but one law which, from its nature, needs unanimous consent. This is the social compact; for civil association is the most voluntary of all acts. Every man being born free and his own master, no one, under any pretext whatsoever, can make any man subject without his consent. To decide that the son of a slave is born a slave is to decide that he is not born a man.

Unanimous consent in a large nation is awfully tough. And so we have a process for deciding how to change the Constitution. Unless you change it, though, you are stuck with the original language, to which you have to attach meaning.

So, on the 2nd Amendment: These words clearly establish an individual right to bear arms. They also allow that aspects of this right can be regulated. Gun rights are subject to a lot more legitimate government regulation than speech rights. "Congress shall make no law" is much more forceful than "well-regulated." We have to argue about just how these two things interact. But the two clauses have plain meaning.

My friend Sandy Levinson wrote a great piece on the 2nd Amendment, calling it embarrassing. What he meant by "embarrassing" is that lefties try to ignore its plain meaning. If you don't like the 2nd Amd, you have to change it, pumpkin! (Sandy is no conservative, mind you. He is just honest and careful. A plain meaning guy, in other words.)

The "originalist" interpretation seems similar to plain meaning, but it is different. The orginalists want to argue that the Constitution implies not what the words say but what the Founders MEANT. From this distance, and with the problem of anachronism, it seems to me that originalism is impractical and bordering on absurd.

Worse, the Repubs want to have it both ways. Nice piece in New Republic from back in January, by Eric Posner:

The problem with originalism is that, however useful it may be as a form of criticism, it cannot support a positive program. During the 2010 election, Americans may have expressed anxiety about the size of government, but in general Americans adore big government and do not want to see it repudiated in the name of some abstract idea. Every political challenge to the New Deal administrative state has gone down in flames, and today Americans look to the federal government to protect them from terrorists, financial scams, economic downturns, environmental degradation, educational failure, poverty and sickness in old age, natural disasters, and foreign competition. As a governing doctrine, the small-government ethos of originalism does not have a constituency. And the public may soon realize that originalism is unlikely to end the politicization of the judiciary. As the Heller case showed, originalism just displaces political disputes among judges into a different idiom. Even as discussion about the original meaning of the Constitution becomes more common on the Court, the left/right division between Supreme Court justices will be plain as ever. This is especially so because originalism unsettles precedent, permitting both liberal and conservative justices to disregard earlier decisions that rub them the wrong way. In addition, as Republicans gain more power, their commitment to originalism will look ever more inconsistent. Institutional commitments in politics don’t run very deep. Republicans already championed federal marriage legislation, even though the Constitution gives Congress no power to regulate family relations; and during the Bush administration, constitutional constraints on executive power were forgotten. This will surely happen again the next time the Republicans take control of the government, and they can only hope that their earlier blandishments about the original understanding of the Constitution will have been forgotten.

(Nod to Kevin Lewis)


John Thacker said...

The "originalist" interpretation seems similar to plain meaning, but it is different. The orginalists want to argue that the Constitution implies not what the words say but what the Founders MEANT.

Actually, there are those who call themselves "originalists" but emphasize that they mean "original meaning." That is important as distinct from "plain meaning" because obviously if the language has shifted, a contract should not automatically change with the change in definition of a word. There are those that are interested in "original intent," which you quite properly criticize.

Justice Scalia, for example, goes to extreme pains to stress that he's wants to argue "original meaning," not "original intent," as any search will show.

So presumably you're not referring to him, or to other actual Justices, but to those politicians that, as usual, make a hash of any philosophical argument.

Anonymous said...

A well regulated militia being necessary to the security of the state,the right of the people to keep and bear arms will not be infringed?

militia is to be well regulated, people get to keep and bear arms.