Thursday, April 07, 2016

RBG, Originalist

David Gans

After Justice Antonin Scalia died, many speculated that originalism would die as well, without one of its most tireless adherents on the bench.   Not if Justice Ruth Bader Ginsburg has anything to say about it.  While Justice Ginsburg is rarely classified as an originalist, during her tenure on the Court, she has written a series of brilliant text and history opinions, powerfully making the case that Constitution’s text and history point in a progressive direction.  Her masterful originalist opinion in Evenwel v. Abbott, decided earlier this week, is just the latest example of progressive originalism in action. 

Evenwel, a case engineered by conservative activist Ed Blum, concerned the question whether states are required under the Fourteenth Amendment to draw legislative districts composed of substantially equal numbers of eligible voters.  In rejecting this radical claim, Ginsburg proceeded in originalist fashion: “We begin with constitutional history.”  

Justice Ginsburg’s opinion, joined by five other members of the Court, including Chief Justice John Roberts and Justice Anthony Kennedy, walked through the Constitution’s text and history in painstaking detail, demonstrating that the Constitution’s Framers—both at the Founding and after the Civil War—affirmed total population as the Constitution’s basis of representation, insisting that all persons deserve representation.  In the words of Senator Jacob Howard—whose speech introducing the Fourteenth Amendment in the Senate was quoted at length by Ginsburg—the total population rule “is the safest and most secure principle upon which the government can rest.  Numbers, not voters; numbers, not property; this is the theory of the Constitution.”  As Ginsburg observed, “[t]he Framers of the Constitution and the Fourteenth Amendment comprehended” that “representatives serve all residents, not just those eligible or registered to vote.”  Evenwel is a huge win for our democracy, affirming that all persons, whether or not voters, count in our polity. 

Evenwel moves the law decisively in a progressive direction.  Before this week’s ruling, a number of lower courts had held that the decision whether to use total population or some other metric was up to the states, relying on a 1966 ruling that permitted Hawaii to draw district lines based on the number of registered voters to account for the state’s substantial temporary military population.  Rather than rely on that precedent, Justice Ginsburg anchored her opinion directly in the Constitution’s text and history, making clear that counting all persons is “the theory of the Constitution” when it comes to representation.      

If Blum tries to engineer a new test case by convincing a state or local government to draw districts based on the number of eligible voters, Ginsburg’s affirmation of constitutional principles of representational equality offers a powerful argument to challenge the exclusion of children, un-naturalized immigrants and others who are not eligible to vote.    
Ginsburg’s originalist turn is nothing new.  In 2011, at a panel discussion on the 40th anniversary of the decision in Reed v. Reed, in which then-lawyer Ginsburg convinced the Supreme Court to strike down state-sponsored gender discrimination as a violation of the Equal Protection Clause for the first time, Ginsburg said that she “counts [herself] an originalist.”   Responding to the argument that the Framers of the Fourteenth Amendment did not mean to prohibit sex discrimination, she explained that the text of the equal protection guarantee and the full sweep of our nation’s constitutional history—from the Declaration of Independence, to the Fourteenth Amendment’s universal guarantees of equality, and, finally, to the Nineteenth Amendment’s protection of a woman’s right to vote—invalidates state laws that deny women equal citizenship stature.  

Justice Ginsburg’s opinions on the Supreme Court embrace originalism as well.  In 2012, in NFIB v. Sebelius, Justice Ginsburg laid out a powerful originalist case for upholding the constitutionality of the Affordable Care Act, demonstrating that the original meaning of the Commerce Clause gives Congress broad power to solve national problems.  Ginsburg’s separate opinion in NFIB told how the Framers at the Constitutional Convention in Philadelphia designed Article I’s grant of powers to give broad powers to the federal government “in all Cases for the general interests of the Union, and also those to which the States are separately important.”  This key idea—contained in Resolution VI of the instructions given to the Committee of Detail, which was body tasked with writing the Constitution’s actual language—had not previously been cited by any Justice of the Supreme Court, but Ginsburg made it the linchpin of her partial dissent, showing that the “ACA addresses the very sort of interstate problem that made the commerce power essential in our federal system.”  

In 2013, in Shelby County v. Holder, Justice Ginsburg delivered another brilliant originalist dissenting opinion, taking the Supreme Court’s conservative majority to task for gutting the Voting Rights Act. The majority, she wrote, had turned a blind eye to the fact that “the Constitution vest powers in Congress to protect the right to vote, and in particular to combat racial discrimination in voting” and ignored the Reconstruction Framers’ purpose “to arm Congress with the power to protect all persons within the Nation from violation of their rights by the States.”   The Amendment’s Framers, Ginsburg argued, had given Congress—not the courts—broad power to select the remedy for racial discrimination in voting.  By refusing to follow this text and history and second-guessing Congress’ judgment that the Voting Rights Act was still needed to stamp out state-sponsored racial discrimination in voting, she wrote, “the Court errs egregiously.” 

As NFIB and Shelby County exemplify, over the last decade, Justice Ginsburg has powerfully shown that the Constitution’s text and history point decidedly in favor of progressive outcomes.  Now, in Evenwel, she has shown that progressives can win at the Supreme Court using originalist arguments, moving the law more in line with the inclusive democracy reflected in our Constitution.   
With a vacancy on the Court to be filled and the votes of some of the Court’s current conservative Justices sometimes in play, Justice Ginsburg may have a host of new opportunities to move the law back in line with the Constitution’s text and history.  On so many of the biggest questions in constitutional law—from voting rights, to the powers of the federal government, to access to courts, to the protection of fundamental rights and equality under the law—the Constitution’s text and history favor progressives.   As Evenwel shows, Justice Ginsburg is an originalist to reckoned with. 

David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center.  This post is cross-posted on Text and History.  

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