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Monday, January 28, 2013

The Two Toobins

I have an ongoing interest in how legal issues and particularly Supreme Court cases get reported in mainstream media outlets. Given that few people can easily make sense of bills that Congress generates or of opinions that the Justices write, newspapers, television, magazines, blogs and such perform an important role in keeping the public informed about legal developments. In law school, I was an avid consumer of Linda Greenhouse's careful reporting on the Supreme Court. It is too soon to tell whether Adam Liptak, Greenhouse's successor, will be as successful or reliable as Greenhouse was (his record is so far quite mixed) so the future role of The New York Times (or newspapers in general) in keeping us up to date is uncertain.

Internet sources, of course, offer lots of information today. But there is great variation in quality even among the most popular outlets that present themselves as new mainstream media. For example, while the Supreme Court reporting at Slate is often entertaining, it could not be mistaken for serious journalism.

Some writers appear in multiple settings. In this regard, Jeffrey Toobin, a regular legal commentator, presents an interesting case. On one hand, Toobin is the author of revealing, thoughtful, and well-crafted books on the Supreme Court. On the other hand, Toobin's opinion columns about the Court for The New Yorker are routinely weak, representing advocacy dressed up as analysis and yet succeeding as neither. (I'll leave aside Toobin's appearances on CNN where he is forced to talk with little advance notice about whatever legal issue of the day has emerged: nobody could perform well in that setting and Toobin bluffs his way through admirably.) Derek Muller flags Toobin's strange missteps in describing the Voting Rights Act in a January 14 New Yorker column. Here is a more recent howler from Toobin's column on the 40th anniversary of Roe v. Wade:
Some Justices like to assert, or pretend, that the Constitution has a single meaning, and that each case thus has only one correct resolution. This view is especially pronounced among conservatives, who, in recent years, have claimed that they can identify the original intent of the framers and use their eighteenth-century wisdom to resolve any modern controversy.
Perhaps some dumbing down is needed for readers of The New Yorker but surely it isn't hard to describe originalism accurately. Originalism's proponents on the Court (and in the academy) don't seek to "identify the original intent of the framers" because (a) their focus is on original public meaning not intent and (b) the framers' views/intent are not decisive in determining that meaning. Moreover, it takes a remarkable obtuseness to conclude that originalists believe eighteenth-century meaning can "resolve any modern controversy." Just the opposite: originalists often say that the Constitution is entirely silent on an issue presented--abortion, say--and resolution of it must therefore be left to the political process. I'm left to wonder, then: how does the author of excellent books end up also authoring poor columns in a national magazine--and what does this tell us about the reliability of old media (books!) versus new?    
        

24 comments:

  1. Gerard's:

    " ... but surely it isn't hard to describe originalism accurately."

    requires him, if it isn't so hard, to describe what constitutes originalism accurately, currently. Gerard doesn't do this well in the remainder of his post following the quote. All originalists are not fungible (my second favorite word). Originalism has evolved since the days of Ed Meese. And an astute observer of originalism, Jamal Greene, who has written extensively and critically of originalism, has an interesting recent paper "The Case for Original Intent" in the George Washington Law Review, pointing out a return to home base. [I learned of the paper from a Concurring Opinions post on that law review issue that provided links to its articles. Scroll down at CO.]

    And then we have Jack Balkin at this Blog and Larry Solum and Randy Barnett and so many other originalists of varying forms of originalism. A review of the Originalism Blog shows the varieties and vagaries of originalists and originalism. Originalism, which is of fairly recent vintage, continues to evolve, perhaps ending up spinning into living constitutionalism or a merger as Jack seems to suggest.

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  2. Here's the link to CO on the law review referenced in my initial comment:

    http://www.concurringopinions.com/page/5

    That issue has several great articles in addition to Jamal Greene's, especial Prof. Bilder's paper that raises serious questions on what some originalists rely upon.

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  4. There is more than one school of originalism - the original intent of the drafters/ratifiers and the original meaning of the text.

    Toobin gives a reasonable Wikipedia summary of the former, but makes the error of arguing that this is the only school and that all the judicial conservatives subscribe to it.

    (Jack's oxymoronic concept of "living originalism" is standard progressive common law constitutionalism dressed in originalist clothing.)

    I'm left to wonder, then: how does the author of excellent books end up also authoring poor columns in a national magazine--and what does this tell us about the reliability of old media (books!) versus new?

    Magazines sell copy by publishing polemics. Toobin was providing what the New Yorker wanted.

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  5. Is "original public meaning" truly the only form of originalism still extant, as this post suggests?

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  6. Steve, any form of originalism will be advanced in order to serve the needs of the moment. It's all a bait and switch.

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  7. Back in 1980, Paul Brest demonstrated the many problems with determining original intent, whether of the Constitution or statutes. With the Constitution, there is the matter of the framers' original intent and of the ratifiers' original intent. Without unanimity, original intent becomes problematic. History, including "law office" history, may provide conflicting intent of the determining parties. Consider Heller, in which both the majority and the dissents claimed to rely upon originalism, coming to different conclusions (5-4!). And many originalists disputed both sides regarding the application of originalism using bad history, particularly with respect to Justice Scalia's dicta on limitations (aimed at pre-empting the slippery slope of the majority's decision).

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  8. Don't all the justices like to pretend that the Constitution has a single meaning, and that each case thus has only one correct resolution? I thought that was a predicate of judicial review.

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  9. It's a predicate of interpreting statutes, too. Essentially "originalism" is just how you normally interpret text, when you're not determined to arrive at a particular meaning regardless of the text you're given: Apply word contemporary word meanings and grammar to the text in question, and resolve ambiguities based on any evidence you have of contemporary understandings.

    Whereas 'living' constitutionalism is how you interpret text when you ARE determined to arrive at a particular meaning regardless of the text you were given...

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  10. Surely, though, the problem with originalism is nothing to do with its actual meaning, it's to do with whose perceptions are to be decisive. The founding fathers, for example, may have had one view, whatever that means and however it is to be found, but their view doesn't count because it was entirely overridden by the 13th, 14th and 15th amendments. The original framers' consent to the constitution was part of a total bargain that was contingent on slavery, and without slavery there is no grounds for assuming that they would have agreed to anything else in the constitution whatsoever. The only original intentions that matter are those of the people who framed the last amendment -- that would be the 27th, in 1992. Only their views count.

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  11. Brett's view of constitutional interpretation/construction is simplistic and he needs to bone up on the rather recent role of originalism in constitutional interpretation/construction.

    Brett says:" ... and resolve ambiguities based on any evidence you have of contemporary understandings."

    " ... any evidence ... "? Is that "law office" history? Shouldn't evidence be substantial? And "ambiguities" are to be resolved by " ... contemporary understandings ... "? Doesn't this fly in the face of the current version of originalism that looks not at contemporary understandings but at understandings back when the framers/ratifiers acted? In fact, " ... contemporary understandings ... " are closer to living constitutionalism than originalism.

    Regarding mls' rhetorical?) questions, some may pretend, some may believe. By the way, Article III does not explicitly reference judicial review, nor does the Constitution explicitly provide for judicial supremacy in the interpretation/construction of the Constitution.

    I share many of Chris' doubts on originalism, but not this:

    "The only original intentions that matter are those of the people who framed the last amendment -- that would be the 27th, in 1992. Only their views count."

    There was a great span of years (200?) between the time the 27th Amendment was proposed and finally adopted. This is like the tail wagging the dog IF the last ratifiers' determine the course of the entire Constitution as previously amended.

    I'll have to dig through my piles to locate and reread "Originalism is Bunk!" for a good constitutional laugh.

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  12. "Essentially "originalism" is just how you normally interpret text...."

    This, of course, is false. In fact, it's inconsistent with even how the Catholic Church interprets the Bible. Part of the Catholic/Protestant divide stems from their different approaches to Biblical exegesis.

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  13. As Brett correctly observed, original meaning and then original intent is how the law routinely interprets the text in statutes, contracts and wills.

    These tools are reasonably objective and not difficult to use.

    These tools can also establish the parameters of the Constitution's text.

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  14. "In fact, it's inconsistent with even how the Catholic Church interprets the Bible."

    I would not recommend that anyone who is honestly interested in what a text means, interpret it in the manner a church hierarchy interprets scripture. Scripture is the prototypical example of "Text you can't amend, no matter how much you'd like to", and "living scripturalism" is the rule, not the exception, in response to that fixity of the text.

    Fortunately, unlike the Bible, the Constitution incorporates a formal means for amendment, which we can use when we don't like what it says, instead of torturing the language until we imagine it's saying what we want.

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  15. All of that's nice, Brett, but it's inconsistent with your claim that "originalism is how you normally interpret text".

    I actually agree with you that the nature of the text affects the method of interpretation. So does John Marshall -- that was the point of his statement that "we must never forget that it is a Constitution we are expounding". However, this factor cuts against your view on interpretation.

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  16. The Constitution as amended does not include a provision directing how it is to be interpreted/construed. There may have existed common law or other rules of interpretation or construction of laws that may have varied from state to state existing at the time of framing/ratifying. Originalism is of fairly recent vintage. And originalism has evolved over time (perhaps coming back full circle as suggested earlier to original intent). The common law evolved. There is no longer (since Erie) a federal common law recognized by SCOTUS.

    As I noted in an earlier comment, even at the Originalism Blog there is lacking unanimity on what constitutes originalism. Note in particular how the currently most prolific poster at that Blog seems to be saying at times "I am Not Rappaport!"

    By the way, all textualists are not originalists and vice versa (if that's the way you like it).

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  17. Michael Ramsey, the most prolific poster at the Originalism Blog, has an Updated post on this post and comments at other blogs.

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  18. "Originalism's proponents on the Court (and in the academy) don't seek to "identify the original intent of the framers" because (a) their focus is on original public meaning not intent and (b) the framers' views/intent are not decisive in determining that meaning."

    This doesn't seem correct to me, proponents of originalism don't always point to original intent, but they certainly sometimes do. You'll often hear the equivalent of saying "do you really think the Founders were thinking of X when they wrote that clause? Preposterous!"

    Brett and Bart

    I can see the argument that looking first at the text is the most commonly used form of legal interpretation, but surely you'd agree that if someone read a bunch of cases in various areas they would find that other things (such as canons of construction, or record of legislative intent, or the historical background at the time a law was adopted) are commonly called upon, sometimes even to trump the text by itself.

    A question for anyone here: how do originialists of the 'textualist' variety purport to deal with things like the Dormant Commerce Clause where there is no text at all, only intent?

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  19. "Don't all the justices like to pretend that the Constitution has a single meaning, and that each case thus has only one correct resolution? I thought that was a predicate of judicial review."

    No they don't. Justice Breyer, e.g., accepts there are different possible meanings, so he has to determine the best approach and weigh different factors. But, for this bit of truth-telling, he is sniped at by some as a "legislator" or some such thing.

    This is one more segment of "they aren't all the same."

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  21. "A question for anyone here: how do originialists of the 'textualist' variety purport to deal with things like the Dormant Commerce Clause where there is no text at all, only intent?"

    The only intent that matters is that expressed in the text.

    The mere fact that Art. I, Sec. 8 grants a power to Congress does not mean that power is exclusive to Congress.

    Art. I, Sec. 10 sets forth what powers states may not exercise.

    10A expressly reserves to the states all powers "not delegated to the United States by the Constitution, nor prohibited by it to the States."

    The combination of these two provisions makes it plain that the states enjoy concurrent powers with the federal government on other items, subject to federal supremacy.

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  22. Bart

    The plain text of the Commerce Clause only grants a "power to regulate commerce" regarding interstate, foriegn and Indian commerce. The Dormant Commerce Clause says that states may not improperly restrict interstate commerce. At best the latter is an inference (and not a necessary one) from the actual text.

    Unlike several other constitutional provisions (such as the Copyright Clause and the 2nd Amendment) no purpose is stated in the text.

    In order to get a purpose to support the inference one must dive into extra-textual areas such as intent of the drafters and ratifiers.

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  23. Google search for "original intent": 2,350,000 results

    Google search for "original public meaning": 102,000 results

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  24. Consider Heller, in which both the majority and the dissents claimed to rely upon originalism, coming to different conclusions (5-4!).
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