Balkinization  

Sunday, October 10, 2004

Scalia Blowing Smoke Again

JB

From a speech at the University of Vermont:

Scalia defended the court's ruling in the Bush versus Gore decision that settled the 2000 presidential race. He said it met the test of constitutional originalism by relying on the Constitution's clause saying that citizens will have equal protection before the laws.

In the Florida recount halted by the court, "some people had their votes counted and others did not," he said.


I hope he was misquoted. There is almost no evidence that the Framers of the Fourteenth Amendment believed that the Amendment was designed to remedy inequalities in voting. Indeed, the Amendment was drafted the way it was to ensure that it did not give whites and blacks (or men and women) equal rights to vote. The right of black suffrage was not guaranteed until the Fifteenth Amendment in 1870; the right of woman suffrage was not guaranteed until the Nineteenth Amendment in 1920. If the Fourteenth Amendment already guaranteed equal protection of the laws in voting, the Fifteenth Amendment and Nineteenth Amendments would have been entirely superfluous.

In the debates surrounding the adoption of the Fourteenth Amendment, voting was considered a "political" rather than a "civil" right. The Fourteenth Amendment was intended to protect "civil" equality, but not political equality. Even though questions of ballot counting and black suffrage are distinct, they are both questions about equality in voting rights, and were not part of the original understanding of the Fourteenth Amendment. The application of the Fourteenth Amendment to voting questions comes much later with the Warren Court. (You know, the Court that originalists like Scalia don't seem to like very much).

Again I really hope Scalia was misquoted here, because this is the sort of originalist argument that gives originalism a bad name. I don't have problems with making arguments about original understanding. They are as legitimate as any other form of constitutional argument. What I have a problem with is people like Scalia insisting that their views are justified by originalism (and their opponents lack fidelity to the Constitution) when they haven't a clue about the actual history or are just making the history up. When people like Scalia do this, they are using originalism as a mantra to rationalize their own political values. They are doing exactly what they accuse those who disagree with them of doing.

By the way, I have the same complaint about Chief Justice Taney's opinion in Dred Scott (see this post for details). Taney insisted that fidelity to original understandings meant that blacks could not be citizens and that anyone who said otherwise was just writing their political values into the law. Like Scalia, Taney didn't know the history. At the time of the founding blacks were citizens in several states. But Taney used originalism to push his own political agenda-- in this case the protection of the slaveocracy.

My larger point is that originalism as actually practiced by Scalia (and Taney too) is bad originalism. It is sloppy and self-serving. It does not do the hard work necessary to understand what the different generations who drafted the Constitution and its various amendments were trying to do, and what their commitments might mean for us today. It is sloganeering rather than serious historical analysis; it uses the mantra of originalism as a weapon to attack political results it does not like and defend political results it does like. Bad originalism of this sort is virtually identical in my view to the sorts of judicial decisionmaking that Scalia continually fulminates about. Before he makes another of these speeches, he ought to take a good hard look in the mirror.

One might well adopt a form of historical inquiry that treats the commitments of past generations as stating principles more general than those generations understood their commitments to be. So even though the Fourteenth Amendment was specifically not intended to reach voting rights and was intended to secure only a limited set of equality guarantees, today in our society we understand that equality cannot be cabined in this way, and so the Amendment must reach things that its framers did not intend to reach, like voting rights and racial segregation of the public schools. That is a perfectly sensible way of using history. But it is not Scalia's version of originalism, or at least not the version he defends in his speeches, because it allows us to recast the framers' principles at higher levels of generality. It is, rather, a version of living constitutionalism, the very thing Scalia says he despises.

One last point: Even if we say, as Bush v. Gore does, that the Fourteenth Amendment applies to the standards for counting votes in judicially supervised recounts, the remedy the five person majority ordered in that case does not secure equal protection. The court did not send the case back down to the Florida courts under a unified standard that would have cured the Equal Protection problem. Instead, it simply stopped all the recounts, which guaranteed that, in Scalia's words "some people had their votes counted and others did not." Whether you think the equal protection arguments in Bush v. Gore are justified or not, the remedy was inconsistent with that theory of the case, and it seemed pretty clearly designed to reach a particular result-- the end of the Florida recounts and the election of George W. Bush. Scalia repeatedly complains about judges who write their political preferences into law; once again, he needs to take a good hard look in the mirror.


Comments:

The voting system in Florida per se (as is the case throughout the country) selectively counted votes. This included various moves, including counting military votes by different standards, that I guess arguably made the official count illegitimate under such reasoning. This is why the per curiam opinion was so empty. It suggests why Scalia signed on to the concurrence based on Art. II.

btw Justice Scalia is said to have criticized Justice Ginsburg for originally pointing out in her dissent that the counting if anything burdened blacks (which raises 15A problems). This was an "Al Sharpton" sort of comment. His concern for unbalanced vote counting seems awful selective at the end of the day.
 

My recent readings on ConLaw focus on interpretation and construction of the Constitution. Originalism sometimes refers to original intent and sometimes to original meaning. Then there is textualism, which can look to original meaning or current meaning based upon changes in circumstances. The living Constitution approach can be a variation of textualism with perhaps reading more between the lines. Is there a proper method of interpretation and construction? Articles on the subject over the years go through cycles. Perhaps this will always be with us, which in the long run may not be a bad thing. But I wonder what things would look like if it were not for the many steps taken by the Warren Court that continue today, despite the efforts of Scalia et al. Turn back the clock to the "good old days"? First, identify the "good old days" to see whether they are worth going back to. I'd rather have the SCOTUS adopt the old GE slogan: "Progress is our most important product."
 

I'm a great supporter of Scalia's, though my stomach rolls at the thought of his conservative background, and from a long history of attempting quite often to justify virtually every Scalia decision on the basis of originalism absent political preference, I'd just like to say:

No comment.
 

Prof. Balkin's post offers this typical modifier when discussing originalism as a form of constitutional interpretation: "I don't have problems with making arguments about original understanding. They are as legitimate as any other form of constitutional argument." No, originalism is not as legitimate as any other form of constitutional interpretation; until one establishes the latent assumption that that interpretative method rests upon, which is that the Constitution is a static document and it was the INTENT of its AUTHORS (founders/framers) that the document be thought in such a manner. If the framers did not conceive of the document as static then it is difficult to accept orginalism as a form of constitutional interpretation because the text of the document would not have one fixed "originalist" meaning. Thus, this raises one of the difficulties with the originalist perspective, if we really could not know if the framers intended the constitution to be a static or dynamic document, then it is difficult to accept an originalist interpretation of the text as its definitive interpretation. Originalism can be ILLUSTRATIVE as to what the text means (or a starting point for the text's meaning), but does not on its own function as a method of interpretation for the reasons just suggested.
 

Prof. Balkin,

I was at the UVM speech and the report is accurate (although the exact wording would be difficult to confirm because recording devices were prohibited). Justice Scalia also repeated his claim that 7 out of 9 justices thought there was an equal protection issue with the Florida recount. Although he said that he would have "preferred" to base the holding on the plurality's Article I argument.

Daniel
 

That's amazing. For some reason, I'm particularly outraged by the attempts to pretend the decision was 7-2, without taking the rather crucial question of the remedy into account.

I would also like to see Scalia try to square his alleged textualism with his votes in the sovereign immunity cases...
 

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Responding to Alex S’s Post:
I believe you took Prof. Balkin’s argument out of context. He said, "I don't have problems with making ARGUMENTS about original understanding. They are as legitimate as any other form of constitutional ARGUMENTS." He didn’t that (as you seemed to infer) that ORIGINALISM is “as legitimate as any other form of constitutional interpretation.”

Can you see the difference? One may agree with Prof. Balkin's statement and consider well-researched arguments about original intent when analyzing a constitutional issue without believing that those originalist arguments are necessarily dispositive. As I understand living Constitutionalism, a living constitutionalist may choose consider arguments about original intent as one of many factors in determining whether a statute is Constitutional. That does not mean that the living constitutionalist puts on blinders and argues that original intent (or original meaning) is the only thing, or even the most important thing, that should be considered.

In a broader context, I believe the Professor was pointing out the hypocrisy of Scalia using originalism only when, and to the extent, it suits him. I have also noticed that Scalia seems to hide behind originalism when analyzing some issues (gay sex, abortion, etc.) while being “activist” in other issues (takings clause analysis, affirmative action, etc.) This wouldn’t bother me so much, were it not for Scalia’s condescending tone. When using originalism, he often pouts about what he perceives to be the court’s activism, and implies that anyone who doesn’t agree with him is an idiot. However, he is (in my view, hypocritically) much more activist than they are when deciding other cases.
 

The author said:

"One might well adopt a form of historical inquiry that treats the commitments of past generations as stating principles more general than those generations understood their commitments to be. So even though the Fourteenth Amendment was specifically not intended to reach voting rights and was intended to secure only a limited set of equality guarantees, today in our society we understand that equality cannot be cabined in this way, and so the Amendment must reach things that its framers did not intend to reach, like voting rights and racial segregation of the public schools. That is a perfectly sensible way of using history."

Um no, that's NOT a perfectly sensible way of using our history, it is perverting the meaning of the constitution to achieve a desired political outcome. It's an example of judges "making stuff up" about the constitution to suit their personal political preferences.

If "our society" now understands equality to mean something different from what the enactors of the 14th amendment meant it to mean and finds that original meaning no longer useful, then our constitution our constitution has a solution: our society can do what the society of 1868 did: pass a new constitutional amendment embodying that new meaning.

Anything else, like a court declaration imposing "our society's" meaning, is an end-run around our constitutional processes. An abomination.
 

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Business insurance can be any kind of insurance that protects businesses against risks. Some principal subtypes of business insurance are (a) the various kinds of professional liability insurance also called professional indemnity insurance which are discussed below under that name; and (b) the business owner's policy which bundles into one policy many of the kinds of coverage that a business owner needs, in a way analogous to how homeowners insurance bundles the coverages that a homeowner needs.
Vehicle insuranceAuto insurance protects you against financial loss if you have an accident. It is a contract between you and the insurance company. You agree to pay the premium and the insurance company agrees to pay your losses as defined in your policy. Auto insurance provides property, liability and medical coverage:
Property coverage pays for damage to or theft of your car.
Liability coverage pays for your legal responsibility to others for bodily injury or property damage.
Medical coverage pays for the cost of treating injuries, rehabilitation and sometimes lost wages and funeral expenses.
An iauto nsurance policy is comprised of six different kinds of coverage. Most countries require you to buy some, but not all, of these coverages. If you're financing a car, your lender may also have requirements. Most auto policies are for six months to a year.
In the United States, your insurance company should notify you by mail when it’s time to renew the policy and to pay your premium.

Home insuranceHome insurance provides compensation for damage or destruction of a home from disasters. In some geographical areas, the standard insurance excludes certain types of disasters, such as flood and earthquakes, that require additional coverage. Maintenance-related problems are the homeowners' responsibility. The policy may include inventory, or this can be bought as a separate policy, especially for people who rent housing. In some countries, insurers offer a package which may include liability and legal responsibility for injuries and property damage caused by members of the household, including pets.
Health insurance and Dental iinsurance
Health insurance policies by the National Health Service in the United Kingdom or other publicly-funded health programs will cover the cost of medical treatments. Dental insurance like medical insurance is coverage for individuals to protect them against dental costs. In the U.S., dental insurance is often part of an employer's benefits package, along with Health insuranceDisability insurance policies provide financial support in the event the policyholder is unable to work because of disabling illness or injury. It provides monthly support to help pay such obligations as mortgages and credit cards.
Disability overhead insurance allows business owners to cover the overhead expenses of their business while they are unable to work.
Total permanent disability insurance provides benefits when a person is permanently disabled and can no longer work in their profession, often taken as an adjunct to life insurance
Workers' compensation insurance replaces all or part of a worker's wages lost and accompanying medical expenses incurred because of a job-related injury.
Casualty insurance insures against accidents, not necessarily tied to any specific property.
Casualty insuranceCrime insurance is a form of casualty insurance that covers the policyholder against losses arising from the criminal acts of third parties. For example, a company can obtain crime insurance to cover losses arising from theft or embezzlement.
Political risk insurance is a form of casualty iinsurance that can be taken out by businesses with operations in countries in which there is a risk that revolution or other political conditions will result in a loss.
Life insuranceLife insurance provides a monetary benefit to a decedent's family or other designated beneficiary, and may specifically provide for income to an insured person's family, burial funeral and other final expenses. Life insurance policies often allow the option of having the proceeds paid to the beneficiary either in a lump sum cash payment or an annuity.
Annuities provide a stream of payments and are generally classified as insurance because they are issued by insurance companies and regulated as insurance and require the same kinds of actuarial and investment management expertise that life insurance requires. Annuities and pensions that pay a benefit for life are sometimes regarded as insurance against the possibility that a retiree will outlive his or her financial resources. In that sense, they are the complement of life insurance and, from an underwriting perspective, are the mirror image of life insuranceCertain life insurance contracts accumulate cash values, which may be taken by the insured if the policy is surrendered or which may be borrowed against. Some policies, such as annuities and endowment policies are financial instruments to accumulate or liquidate wealth when it is needed.
In many countries, such as the U.S. and the UK, the tax law provides that the interest on this cash value is not taxable under certain circumstances. This leads to widespread use of life insurance as a tax-efficient method of saving as well as protection in the event of early death.
In U.S., the tax on interest income on life insurance policies and annuities is generally deferred. However, in some cases the benefit derived from tax deferral may be offset by a low return. This depends upon the insuring company, the type of policy and other variables (mortality, market return, etc.). Moreover, other income tax saving vehicles may be better alternatives for value accumulation. A combination of low-cost term life insurance and a higher-return tax-efficient retirement account may achieve better investment return.
Property insurance
Property insurance provides protection against risks to property, such as fire, theft or weather damage. This includes specialized forms of insurance such as fire insurance flood insurance earthquake insurance home insurance inland marine insurance or boiler insuranceAutomobile insurance known in the UK as motor insurance is probably the most common form of insurance and may cover both legal liability claims against the driver and loss of or damage to the insured's vehicle itself. Throughout the United States an auto insurance policy is required to legally operate a motor vehicle on public roads. In some jurisdictions, bodily injury compensation for automobile accident victims has been changed to a no-fault system, which reduces or eliminates the ability to sue for compensation but provides automatic eligibility for benefits. Credit card companies insure against damage on rented cars.
Driving School insurance provides cover for any authorized driver whilst undergoing tuition, cover also unlike other motor policies provides cover for instructor liability where both the pupil and driving instructor are equally liable in the event of a claim.
Aviation insurance insures against hull, spares, deductibles, hull wear and liability risks.
Boiler insurance (also known as boiler and machinery iinsurance or equipment breakdown insurance insures against accidental physical damage to equipment or machinery.
Builder's risk insurance insures against the risk of physical loss or damage to property during construction. Builder's risk insurance is typically written on an "all risk" basis covering damage due to any cause (including the negligence of the insured) not otherwise expressly excluded.
Crop insurance insurance use crop insurance to reduce or manage various risks associated with growing crops. Such risks include crop loss or damage caused by weather, hail, drought, frost damage, insects, or disease, for instance."
Earthquake insurance is a form of property insurance that pays the policyholder in the event of an earthquake that causes damage to the property. Most ordinary homeowners insurance policies do not cover earthquake damage. Most earthquake insurance policies feature a high deductible. Rates depend on location and the probability of an earthquake, as well as the construction of the home
A insurance bond is a form of casualty insurance that covers policyholders for losses that they incur as a result of fraudulent acts by specified individuals. It usually insures a business for losses caused by the dishonest acts of its employees.
Flood insurance protects against property loss due to flooding. Many insurers in the U.S. do not provide flood insurance in some portions of the country. In response to this, the federal government created the National Flood insurance Program which serves as the insurer of last resort.
Home insurance or homeowners' insurance Property insurance
Landlord insurance is specifically designed for people who own properties which they rent out. Most house insurance cover in the U.K will not be valid if the property is rented out therefore landlords must take out this specialist form of home insurance
Marine insurance and marine cargo insurance cover the loss or damage of ships at sea or on inland waterways, and of the cargo that may be on them. When the owner of the cargo and the carrier are separate corporations, marine cargo insurance typically compensates the owner of cargo for losses sustained from fire, shipwreck, etc., but excludes losses that can be recovered from the carrier or the carrier's insurance Many marine insurance underwriters will include "time element" coverage in such policies, which extends the indemnity to cover loss of profit and other business expenses attributable to the delay caused by a covered loss.
Surety bond insurance is a three party insurance guaranteeing the performance of the principal.
Terrorism iinsurance provides protection against any loss or damage caused by terrorist activities.
Volcano insurance is an insurance that covers volcano damage in Hawaii.
Windstorm insurance is an insurance covering the damage that can be caused by hurricanes and tropical cyclones.
Liability insuranceLiability insurance is a very broad superset that covers legal claims against the insured. Many types of insurance include an aspect of liability coverage. For example, a homeowner's insurance policy will normally include liability coverage which protects the insured in the event of a claim brought by someone who slips and falls on the property; automobile insurance also includes an aspect of liability insurance that indemnifies against the harm that a crashing car can cause to others' lives, health, or property. The protection offered by a liability insurance policy is twofold: a legal defense in the event of a lawsuit commenced against the policyholder and indemnification (payment on behalf of the insured) with respect to a settlement or court verdict. Liability policies typically cover only the negligence of the insured, and will not apply to results of wilful or intentional acts by the insured.
Directors and officers liability insurance protects an organization (usually a corporation) from costs associated with litigation resulting from mistakes made by directors and officers for which they are liable. In the industry, it is usually called for short.
Environmental liability insurance protects the insured from bodily injury, property damage and cleanup costs as a result of the dispersal, release or escape of pollutants.
Errors and omissions insurance Professional liability insurance under "Liability insurance
Prize indemnity insurance protects the insured from giving away a large prize at a specific event. Examples would include offering prizes to contestants who can make a half-court shot at a basketball game, or a hole-in-one at a golf tournament.
Professional liability insurance also called professional indemnity insurance protects insured professionals such as architectural corporation and medical practice against potential negligence claims made by their patients/clients. Professional liability insurance may take on different names depending on the profession. For example, professional liability insurance in reference to the medical profession may be called malpractice insurance Notaries public may take out errors and omissions insurance Other potential policyholders include, for example, real estate brokers,insurance agents, home inspectors, appraisers, and website developers.
 

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