Wednesday, August 09, 2006

We Should Take Them at Their Word

How often do we hear those who complain about “judicial activism” say. “Where in the Constitution does it say separation of church and state, or the right to privacy or freedom of association or right to a fair trial”?

The Constitution says none of those things, but the Constitution means all of those things, and more.

The Framers wrote in broad terms, and we should take them at their word.

In his confirmation hearings before the Senate Judiciary Committee, John Roberts was asked if he was an originalist. He answered:

“I think it's very important to define these terms. Let's take the originalist approach. I do think that the framers' intent is the guiding principle that should apply.

However, you do need to be very careful and make sure that you're giving appropriate weight to the words that the framers used to embody their intent.

I think of, in particular, the Fourth Amendment (sic) and the equal protection clause. There are some who may think they're being originalists who will tell you, Well, the problem they were getting at were the rights of the newly freed slaves. And so that's all that the equal protection clause applies to.

But, in fact, they didn't write the equal protection clause in such narrow terms. They wrote more generally.

That may have been a particular problem motivating them, but they chose to use broader terms, and we should take them at their word, so that is perfectly appropriate to apply the equal protection clause to issues of gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it. That is an originalist view because you're looking at the original intent as expressed in the words that they chose. And their intent was to use broad language, not to use narrow language.”

But what did the framers of the 14th amendment intend? Does it matter? Do you think the framers of the 14th thought that their broad language would later be used in Loving v. Virginia to strike down bans on interracial marriage?

One of those framers, Illinois Republican Senator Lyman Trumbull had this to say

"If the negro is denied the right to marry a white person, [and] the white person is equally denied the right to marry the negro[,] I see no discrimination against either." Neither the Civil Rights Act of 1866 nor the Fourteenth Amendment would have passed if it had intended to strike down laws against interracial marriage.”

And yet, the court ruled otherwise, as well it should.

Because the Framers wrote in broad terms, and we should take them at their word.

So, even though we can be quite certain that the Framers never gave same sex marriage a thought, the broad language they chose precludes us from construing their words in narrow terms.

We should take them at their word.


John Hosty said...

The was an eliquent and intelligent post. I have to agree with you John, thanks for posting this.

John said...

Mark my words.

Chief Justice John Roberts will surprise.

I predict he will be quite liberal when interpretting the equal protection clause.

John Hosty said...

Please expand on that for us john, I have no such knowledge.

John said...

There is probably no area of law that separates the liberal from the modern conservative more than the issue of "substantive due process".

It has a long and sometimes sordid history.

There is a school of thought that Dredd Scott was the result of substantive due process. I disagree and consider that to be revisionist history. Yet, the argument carries weight to this day among some serious scholars (Judge Bork, most notably, and to a lesser but still significant extent, Justices Scalia and Thomas).

But even if you accept those charges it does not follow that substantive due process is not a valid interpretive tool. There is middle ground and Roberts very strongly suggested he takes that middle ground.

That middle ground can be stated simply as, yes, substantive due process can be abused, but that doesn't make it invalid.

"Modern substantive due process doctrine protects such rights such as the right to privacy, under which falls rights of bodily autonomy, private sexual activity (Lawrence v. Texas), contraception (Griswold v. Connecticut), and abortion (Roe v. Wade), as well as most of the protections of the Bill of Rights. However, what are seen as failures to protect enough of our basic liberties and what are seen as past abuses and present excesses of this doctrine continue to spur debate over its use." (1)

In his confirmation hearing he said this:

"The court has over -- with a series of decisions, going back 80 years, has recognized that personal privacy is a component of the liberty protected by the due process clause. The court has explained that the liberty protected is not limited to freedom from physical restraint. And that it's protected not simply procedurally, but as a substantive matter as well."

This was in relation to a discussion on Roe v. Wade and VERY SIGNIFICANTLY, Griswold, upon which privacy rights depend (Lawrence is an extension of Griswold).

THe American Prospect says it better than I could:

"Abortion is just one of the rights the Court has identified as part of the liberty protected by the due-process clause. Conservative judges and scholars have regularly attacked the entire idea of substantive due process. Roberts did not. He endorsed the Court’s understanding that “the liberty protected is not limited to freedom from physical restraint, and that it’s protected not simply procedurally but as a substantive matter as well.” Indeed, he announced that he agreed with Griswold v. Connecticut, the case that proved the fountainhead of substantive due-process jurisprudence. Of course, the steps from Griswold to later decisions such as Roe are not necessarily clear, but Roberts took one of the less obvious ones when he assured Senator Dianne Feinstein that he did not “have any problem” with the extension of Griswold to unmarried couples." (2)

It is nearly impossible for the layman to fully understand the concept, not because the layman isn't smart enough. It's just that few laymen have the wherewithal to do the very serious scholarly work that is required to sift through the mountains of legal analysis.

My first footnote is good place to start, but a bad place to stop.