Thursday, September 15, 2005

John Roberts and the Living Constitution


In this exchange from the third day of his testimony, Judge Roberts adopts a far more moderate approach to construing substantive rights under the Due Process Clause than Justice Scalia. What this means in practice is anybody’s guess.

BIDEN: I asked Justice Ginsburg a question about . . . the Michael H. [v. Gerald D.] case. . . . You and I both know how you determine history and tradition determines outcomes. In that case, [the] question [was] whether . . . the natural father [had visitation rights when the child] happened to be born to a woman that was living with her married husband. . . . Scalia said . . . you go back and look at the specific historical precedent. . . . Have bastards ever been protected in the law? And Brennan . . . said, . . . you go back and look at fatherhood. Was fatherhood . . . part of the traditions and part of the embraced notions of what we hold dear? . . .
So, Judge, . . . do you look at the narrowest reading of whether or not such an asserted right has ever been protected? Or do you look at it more broadly? What is the methodology you use?

ROBERTS: . . . I think you're quite right that . . . quite often the critical question in these cases [is] the degree of generality at which you define . . . the tradition, the history and the practice you are looking at.

The example I think that I've always found easiest to grasp was Loving against Virginia. Do you look at the history of miscegenation statutes or do you look at the history of marriage? . . .

The point is that, again, the court has precedents on precisely that question, about how you should phrase the level of generality.

ROBERTS: And you look at...

BIDEN: But which precedent do you agree with? There are competing precedents.

ROBERTS: Well, you do not look at the level of generality that is the issue that's being challenged.

So, for example, in Loving v. Virginia, if the challenge is -- it seems to me, this is what the court's precedents say: If the challenge is to miscegenation statutes, that's not the level of generality, because you're going to answer -- it's completely [circular]. . . . And I'm saying you do not look at it at the narrowest level of generality, which is the statute that's being challenged because, obviously, that's completely circular. . . . [O]bviously, that statute[,] that's part of the history. So you look at it at a broader level of generality.

* * * *

The fact that Roberts is willing to construe traditions at a broader rather than a narrow level of generality is quite important because living constitutionalism is consistent with the former approach and not the latter. Obviously one cannot make too much of this, but if Roberts had specifically endorsed Scalia's approach it would have told us something important about his views on a whole host of questions.

In this passage Roberts discusses the idea of a living constitution in terms that sound remarkably like Justices Harlan and Souter, but once again, it’s unclear what this means in practice:

SPECTER: Dissenting in Poe v. Ullman, Justice John Marshall Harlan made one of the famous statements on th[e] issue [of a living constitution], saying that . . .“The traditions from which it [liberty] is developed, . . . that tradition is a living thing. And my question to you is: Do you regard the evolution of various interpretations on liberty as a living thing as Justice Harlan did and as Justice Rehnquist appeared to on the Miranda issue?

ROBERTS: Well, I think the framers, when they used broad language like liberty, like due process, like unreasonable with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages. As they said in the preamble, it was designed to secure the blessings of liberty for their posterity.

They intended it to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages.

SPECTER: Well, when you talk about intent, I think that's a pretty tough interpretation. When the equal protection clause was passed by the Senate in 1868, the Senate galleries were segregated: blacks on one side, whites on the other. So that couldn't have been their intent.

And the interpretation which occurs later really is captured by Justice Cardozo in the case of Palko v. Connecticut, a case which impressed me enormously back in the law school days.

When talking about the constitutional evolution, he referred to it as expressing values which are, quote, the very essence of a scheme of ordered liberty, close quote, quote, principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.

Would you agree with the Cardozo statement of jurisprudence which I just quoted?

ROBERTS: Well, the general approach of recognizing the values that inform the interpretation of the Constitution -- it applies to modern times. But, just to take the example that you gave of the equal protection clause, the framers chose broad terms, a broad applicability, and they state a broad principle.

And the fact that it may have been inconsistent with their practice may have meant that they were adopting a broad principle that was inconsistent with their practice, and their practices would have to change -- as they did -- with respect to segregation in the Senate galleries, with respect to segregation in other areas.

But when they adopt broad terms and broad principles, we should hold them to their word and imply them consistent with those terms and those principles.

And that means, when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle.

* * * *

Again, one cannot make too much of this testimony, but Roberts' focus on reading the text broadly in light of its underlying principles rather than being constrained by the expected application of the text is consistent with living constitutionalism. One should not assume from these exchanges that Roberts is going to vote in the same way that Justice Souter or Justice O'Connor would. But he does not seem to have the same approach as Thomas or Scalia.


I wonder how it would feel to be a fly on the wall as Justices Scalia, Thomas and Kennedy absorb Judge Roberts' testimony and contemplate how they might respond to him on some of the issues the latter is trying his best to avoid responding to in his senatorial "inquisition". Scalia and Thomas are probably preparing for their education of the new CJ when he comes on board.

I agree, Roberts seems to be more devoted to the text and the original meaning than to original applications. And that's a good thing. By the way, my paper on originalism and the sense-reference distinction, defending the same idea, is on SSRN, if anyone's interested.

All of which rather raises the question: how does one reconcile Roberts against Bush's promise of another Scalia/Thomas?

None of the possible answers are very comforting.

Either, Bush just flat-out lied to the public;

Or, Roberts lied to Bush and/or the Senate Committee;

Or, Bush has even less comprehension of Scalia's judicial philosophy than Scalia's detractors, and therefore, when he called Scalia and Thomas his models, actually never meant originalists or textualists, and merely meant he would appoint conservatives.

Those folks who voted for Bush primarily based on his promises regarding the court have been let down. This is the sort of nominee we'd expect from a Republican President faced with a Democratic Senate, or vice-versa, not a re-elected Republican President faced with an expanded Republican majority in the Senate. All of which begs the question, for those of us who want another four Scalias on the court, what the hell does it take?

Simon's choice (3) illustrates that none of his choices is exclusive of the others.

And that means, when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle.

What nonsense. Bolling V. Sharpe quite clearly is not consistent with the intent of those who wrote the Bill of Rights and yet Roberts cites it approvingly. It's pretty obvious he's not even trying to make sense.


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