Recall that Scalia frequently insists on the narrowest, text-only version of originalism, but in practise sometimes allows the supposed aims of the framers, authors, ratifiers, or whoever to play a decisive role, and sometimes the expectations of such persons as regards how their work would or would not be read.
No honest originalist reading can depart from or ignore these, nor can any honest decision defy these.
To escape the cage of originalism there is only recourse to Article V.
Recall, too, that he does not accept incorporation as being available to anyone in that cage, though lately some have floated arguments to the contrary concerning the framers aims and expectations regarding the privileges or immunities clause of the 14th Amendment.
Early in his book, EC alludes to a number of issues concerning the equal protection clause of this amendment.
No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.
These include the questions (1) who is to be protected equally, (2) from what are they to be protected, and (3) with whose protection is theirs is to be compared.
As to (1), leaving aside anything fishy in your 18th Century dictionary of American English and consulting only the meanings of the word, it is as clear as one could wish that the clause protects everybody.
And as to (3), again adverting to the bare text, is appears the protection of each is to be compared to that of everyone and anyone else.
Putting it together in a nutshell, all are to be protected equally. No one may be discriminated against as regards protection from whatever it is that they are to be protected from.
But EC cites a WAPO report of an interview in California Lawyer in which Scalia claims (as EC reports) that the clause does not protect women because the framers of the amendment never meant to protect them.
There is no indication why we should believe that.
Elsewhere EC points out that while it is pretty certain the framers of the clause at least meant to guarantee equal protection to the freedmen, it is abundantly likely they meant also to guarantee their descendants in perpetuity.
As for myself, I think that if those groups were the only ones they meant to guarantee protection they would not have chosen the universal language of the clause.
As to (2), again adverting to the bare text, it appears we may suppose that the clause is to assure equality of protection against anything law protects people from.
And that would include, say, crimes, violations of contracts, and the like.
Crimes such as lynching, raping, arson, robbery, kidnapping, bullwhipping, and torture – pretty much the entire repertoire of the followers and heirs of Nathan Bedford Forest would be covered.
Elsewhere he alludes to the argument that, since the same congress that passed the 14th Amendment also imposed segregation on the DC schools, they clearly did not aim at protecting anyone from that, and would have expected it not to be read as offering such protection.
He point outs that the unanimous court that ruled in Brown against the constitutionality of segregation was perfectly aware this was not an aim of the framers, and contrary to their likely expectations.
I note that Brown appears to prohibit, via the equal protection clause, not merely unequal protection by the law, but more broadly unequal treatment at the hands of state governments.
Recall that Brown held that separate is never in fact equal, and that segregation of the races imposes an indelible and undeniable stigma, a brand of inferiority and unworthiness, on the people of one race.
That is very far from equal treatment at the hands of the state.
In this way the decision goes beyond the original meaning as well as the aims and expectations of the framers.
Since that time various laws and courts have shifted the ground a little more taking the equal protection clause to require or anyway license governments to ensure equality of treatment (or non-discrimination) by employers, service providers, schools, and so on.
It’s become a quite large and complicated part of the law, based on readings of the clause far from and in some ways even contrary to any or all of the text as originally meant, the aims of the framers, and the expectations of the framers.
And all of that in service to the liberal value of equality and defiance of the strictures of originalism.
But EC also cites a case not based on the 14th Amendment as an instance of judges departing that far from anything originalism could countenance, in furtherance of liberal values and direct opposition to the conservative values served expressly by the text and contrary to anything credibly ascribed to the framers as relevant aims and expectations.
In Home Building and Loan v. Blaisdell (1934) the Court upheld a Minnesota law prohibiting foreclosure of farm mortgages, despite Article 1, Section 10 (EC wrongly cites Section 9) of the constitution.
No state shall . . . pass any law . . . impairing the obligation of contracts.
The words, the aims, and the expectations of the framers were that exactly such laws were to be forbidden by this clause.
But the country was in the depth of the Great Depression, and exceptional times call for exceptional measures, the court explained.
EC approves, and so do I.
The usual suspects do not.
BTW.
EC at one point says, judging by the likely aims and/or expectations of the framers, ratifiers, voters, of whoever, and though the use of masculine pronouns, given the grammatical conventions in play, is not decisive, no woman can be president.
I think he is right about those aims and expectations, and right that those aims and expectations commit any honest originalist to insist the constitution does not allow women to hold that office.
Don't like it?
Go get a suitable amendment passed.
It is worth thinking about that understanding the First Amendment to protect forms of expression and media other than audible speech heard in person and live and anything producible by an 18th Century press takes us out of the cage of originalism.
So does taking that amendment to protect freedom of association.
So do the extensions of the right to privacy (or disestablishment, as you will) to insulate much of our sex lives from control by laws imposing traditional Christian sexual morality.
So does regarding a warrant as needed in case the police want access to GPS data tracking someone's movements (that is neither a search nor a seizure of that person or his effects, and whatever corporate entity has such records is not the suspect in such a case).
So do the Air Force and paper currency.
So does a lot of the invisible ink constitution, which, according to EC, is where we have to look for constitutional warrant for Judicial Review of federal laws and executive actions.
A huge body of what can be constitutional only outside the cage of originalism would never be challenged by any sane conservative, not even one claiming to be an originalist.
Again, BTW.
EC refers to an early case of his in which a person was sentenced under California's three time loser law to life with no possibility of parole for 50 years for shoplifting $153 worth of video tapes.
The defendant had no history of violent crime and no one in the history of the US had ever been sentenced to life for shoplifting before.
That sentence was appealed to the Supremes as contrary to the 8th Amendment exclusion of cruel and unusual punishments.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
5-4, conservatives vs. liberals, the court said the sentence was fine.
Since the punishment was egregiously both cruel and unusual and no argument is cited referring to the aims or expectations of the Framers, ratifiers, or whoever, EC opines they just wanted to send a strong law and order, get tough with crime message.
And when you read of this and think of the slap on the wrist that career criminal, Paul Manafort, got for a lifetime of much worse and much more numerous crimes you cannot possibly avoid disgust with the classism rampant in law enforcement from the ground up.
California voters later changed the law to require that the third strike had to be for a serious or violent crime, and the fellow was released.
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