Why Originalism Matters (Part III)

Justices routinely hand down verdicts that rewrite clauses of the Constitution because in doing so would be morally superior such as deeming diversity laws, economic laws, gay marriage, or abortion laws as Constitutional. However these same Justices say they came to their decision by interpreting the Constitution (or some form of originalism). This is false. There is no way they could have come to these conclusions through textual originalism. How do we know this? Because these same Justices also use terms such as “This is a Constitution were are expounding” or “the Constitution is a living document”. In other words, the textual meaning of the Constitution changes over time. Hence, they cannot say they are interpreting the Constitution in its original form. Why take an oath to protect and serve the Constitution if a Judge is really not? Why not throw the Constitution away if it no longer has any pertinent meaning? People cannot pick and choose the provisions that are satisfactory to them and those that are not. This is hypocrisy. We cannot say, I agree with the Bill of Rights except the Tenth Amendment, this is not how it works. Liberals will use original intent or textual interpretations when the means suits the ends they are trying achieve and resort to rewriting clauses when original intent does not satisfy their moral or social justice goals. You cannot have it both ways. Inconsistency is a real problem with Constitutional interpretations and it has to stop. Why can liberals use originalism to interpret that each State should have two Senators, but insist that that the commerce clause means social activity (not true) and not trade during the founding era? You cannot have it both ways.

The Presumption and Ninth Amendment Example:

Presumption was introduced by Harvard Professor Thayer in an 1893 article. Presumption was first used by the Court in Justice Harlan’s Lochner dissent. In essence, Presumption assumes state and federal laws are constitutional unless it can be proven otherwise. In other words, the burden of proof lies with those who claim their rights have been violated and it is presumed the government is choosing the proper means to attain an ends. This is of course hypocritical to the entire concept of the Constitution and that is to place limitations on the government and not to limit the rights of citizens or corporations. Presumption was invented and goes against any textual explanations during the founding era requiring Judicial Review. As John Marshall stated in Marbury v. Madison it is the duty of the Court to say what the law is. It is not the duty of the Court to invent judicial theories to influence favorable outcomes. Presumption was popular with liberals primarily because it placed restrictions and regulation on those presumed “evil” corporations. It was a means of punishing capitalism and the wealthy to achieve the ends of social justice. Presumption essentially provided unlimited power to any state or federal legislative branch to be judge, jury, and executioner of any law with no judicial review or oversight. In Federalist 10 Madison says impartial judges are needed because individuals could not be trusted to overlook their own violations of the law. Well, the same can be said of the necessity of Supreme Court’s check on Congress. Presumption of liberty makes more sense than Presumption of government power.

Presumption was first used by the FDR Court in 1931 by Justice Brandies in O’ Gorman v. Hartford Fire Insurance. Presumption was also used in West Coast Hotel v. Parrish to overrule the Fundamental Right to freedom of contract established in Lochner. In Carolene Products v. United States the FDR Court used presumption to uphold a federal statute that made it illegal for Carolene Products to ship “filled milk” products via interstate commerce (prohibited – more on this later). In the Carolene Products case, scientists and experts testified that “filled milk” was bad for humans. In 1972, a circuit Court overruled the Carolene Products decision in Milnot v. Richardson (Carolene Products changed its name to Milnot). The Court rightly asserted that dozens companies ship products similar to milk and “filled milk” in interstate commerce. It was both discriminatory and irrational to deny Milnot the same freedom. Today, “filled milk” is shipped throughout the United States because we learned the truth: filled milk is better for humans than any regular type of milk and the government now refuses to contest these facts. The bottom line is in the Carolene Products case dairy farmers and their lobby were much more powerful than a single company and by putting forth false information the dairy lobby was able to convince the Court to discriminate against their competition. More recently, in Nebbia v. New York the dairy lobby was able to regulate higher milk prices so mom and pop retailers would be forced out of business. The regulation in Nebbia was both similar to Lochner where a discriminatory maximum hours regulation also targeted mom and pop shops and Carolene Products where the power of special interests convinced the Court to discriminate against the right to a lawful occupation for mom and pop milk retailers.

All this said, the Carolene Products decision is best known for “Footnote Four” in Justice Stone’s majority opinion and not the travesty of injustice delivered by the Court. In Footnote Four Justice Stone points out a few instances when Presumption can and should be challenged. In other words, Footnote Four placed some limitations on Presumption. One limitation for challenging Presumption is when any Fundamental Right outlined in the Bill of Rights is put into question by a state or federal law. The FDR Court has been highly regarded by history. However, if the Footnote Four doctrine was truly practiced by more modern Supreme Courts then the Right to Privacy elevated as a Fundamental Right in Griswold v. Connecticut would have never happened. Justice Douglas labored in his majority decision in Griswold for two reasons. First, Douglas had to dance around his previous presumption decisions such as Williamson v. Lee Optical. In Griswold, Justice Douglas does not change his opinion in Williamson which denied a person to the un-enumerated Fundamental Right to a “lawful occupation”. Justice Douglas says in Williamson “the law need not be in every respect logically consistent with its aims to be Constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” The “evil” that Lee Optical was performing as a business is what Lens Crafters is legally doing today. Justice Douglas then claims that “The prohibition of the equal protection clause goes no further than invidious discrimination.” In other words, the Court adopted the discrimination theories put forth by the revered Justice Oliver Wendell Holmes. Secondly, Justice Douglas also had to dance around the Footnote Four exceptions since the right to privacy did not qualify for an exception to the doctrine since it did not exist in the Bill of Rights. Justice Douglas does this by declaring “Specific guarantees in the Bill of Rights have penumbras formed, by enumerations from those guarantees that help give them life and substance.” This has been one of the most controversial sentences in Supreme Court history. Finally, the Court generated a distinct conflict of interest between “personal rights” such as privacy (Griswold) and “personal economic rights” such as owning property, the freedom of contract, and the right to a lawful occupation (Williamson). Personal rights would be protected using strict scrutiny while personal economic rights would be protected by rational basis scrutiny (this is like having no protection – more on this later).

Without Griswold then Roe v. Wade (abortion), Obergefell v. Hodges (gay marriage), and Lawrence v. Texas (sodomy) would have never had a path towards legalization. It is interesting to note that although presumption overruled Lochner’s Freedom of Contract, the Lochner Era Court also elevated several Fundamental Rights in Meyer v. Nebraska (Right to Knowledge, Occupation, and Marriage among several outlined) and Pierce v. Society of Sisters (right for parents to choose educational options for their children) which were ironically both cited in Griswold by the majority opinion (although the same Court denied many of these rights in Williamson v. Lee Optical a decade earlier). It is also important to note that Holmes, of course, dissented in both the Meyer and Society of Sisters cases. Lochner has been criticized for over a century by liberal and conservative judicial scholars, but the same principles of Constitutional textual originalism used by the Lochner Era Court in the Lochner decision were used in Meyer and Society of Sisters which are still solid law today. So how did the much maligned Lochner Era Court save the day for Social Justice Liberals in Griswold? It was because the Lochner Era Court interpreted the Constitution correctly and the much revered FDR Court and their liberal progressive hero Holmes did not. Howard Gilman says “Lochner era police power jurisprudence was both coherent and continuous with the underlying principles of the founding. This makes the FDR New Deal Court a rejection of constitutional jurisprudence: a revolution and not a restoration.” Lochner era jurisprudence was incorrectly labeled as being Laissez Fair when it was really an “aversion to class legislation” or an outlet for “class neutral legislation” that did not favor or discriminate against any group of citizens. Other Courts cannot make the same claim.

I believe Fundamental Rights can be elevated through either the Ninth Amendment or the Privileges and Immunities Clause of the Fourteenth Amendment. Of course the Privileges and Immunities Clause has been incorrectly written out of the Constitution in the Slaughter House Cases and the Ninth Amendment is long forgotten. Justice Goldberg used the Ninth Amendment in his reasoning for Griswold (he was the only Justice out of 7 to do so) and Justices Kennedy, O’Connor, and Souter used the Ninth Amendment in Casey v. Planned Parenthood (Roe v. Wade follow up in 1992). Most scholars (both liberal and conservative) have tried to minimize the impact and relevance of the Ninth Amendment and most Justices have been reluctant to use it because they are afraid of opening “Pandora’s box”. Justice Scalia refused to use the Ninth Amendment in Troxel v. Granville even though he agreed with the majority that parents had the Fundamental Right to make decisions regarding their children. Some scholars have said that the Ninth Amendment only applies to states and not the federal government (like the Tenth Amendment, scholars claim the Ninth Amendment is a federalism clause). This is false, by using the original meaning of the text as drafted and explained by James Madison the Ninth Amendment consists of all Fundamental Rights not enumerated in the Constitution. Other theories limiting the power of the Ninth Amendment include the “residual rights” theory. A good example of this is illustrated in United Public Workers v. Mitchell where Justice Reed wrote “If granted power is found, necessarily the objection of invasion of those rights reserved by the Ninth and Tenth Amendments, must fail.” In other words individual freedom, rights, and liberty must take a back seat to enumerated federal powers. This is nonsense! No Justice has ever given a government enumerated power more consideration than the say the First Amendment. So why would the Ninth and Tenth Amendments be treated any differently? The Constitution has been described as an island of government powers surrounded by a sea of rights and not the other way around. Rights came first, then came the government, and then came the law. That is why the Constitution was written to protect individuals from government intrusion and restrictions. It would make no sense to protect the government at the expense of the people. This goes against any Federalist or anti-Federalist views during the Founding era. As Randy Barnett asserts “Ninth Amendment skeptics have always seemed to think that when a provision is inserted merely for greater caution, this means it has no function apart from serving as some sort of enforceable warning.” Moreover “They consistently overlook how such cautionary rights can serve as a redundant or secondary line of defense when other primary constraints on government power fail.”

The moral of this story about the history of Presumption and the Ninth Amendment is for Justices to stop making up legal nonsense and interpret the textual meaning of the Constitution. By doing so, the Court halt its bad decision making process that led to travesties such as Williamson, O’Gorman, Parrish, and Carolene Products. Furthermore, the Court would not place themselves in a legal dilemma for future cases such as Griswold, Roe, Lawrence, Obergefell, and Casey. Of course, I do not believe all of the Fundamental Rights elevated in these cases are truly Fundamental, but I have written about that issue in the past (For instance, why is abortion a Fundamental Right, but transportation was denied as being a Fundamental Right? Because Fundamental Rights are arbitrarily elected and denied by Justices with political agendas – the opening of Pandora’s Box).