Sunday, January 22, 2006

Alito's Originalism is Not The Same As Bork's

"Samuel Alito largely followed Roberts's script, but at key points he was much more specific. Asked about his general approach, he said,

"I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption."

"He also said that "it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution."

SAMUEL ALITO during his confirmation hearings, as reported by Professor Cass Sunstein's article How Bork Got The Last Laugh (New Republic -- maybe subscription only)

There is a difference between the "originalism" espoused by Bork, and the brand espoused by conservatives today, including Alito.

Both brands of originalism seem rooted in the notion that the "Constitution of the Framers," the document of 1789, counts more than what the Supreme Court, or any other judge has to say about it.

Bork used his "originalist" position to attempt to negate the Constitutional effects of the Civil War, most notably the 14th and 15th Amendments. An expanded 14th Amendment was being used in the 60s, 70s and the 80s in conjunction with an expanded reading of the Commerce Clause to attempt to irradicate egregious racial injustice.

Whatever Bork’s personal opinions on racial equality and civil rights were or are (and seeing him on television all these years, I don’t believe they have changed a bit), Bork felt that “originalism” mandated that the government have only the most limited role in promoting racial equality. Whatever Bork felt, it was clear that many of his supporters believed that the wrong side won the Civil War. In this view, an “originalist” Constitution that ignored the results of the Civil War would be better for all concerned.

This noxious view, and the man who stepped forward to support it, was rightly rejected.

Does Alito support that noxious view, that the original Constitution should bear more weight than the Amendments? I don’t think so. Nothing in Alito’s career bears it out. However, it would have been nice if in the middle of blowing so hard, one of the Senators would have taken the time out to ask him.

Alito’s originalism is different. His originalism stems from his belief, which I agree is historically correct, that government in the 18th century was far more invasive about people’s personal liberties, and far less concerned about how people conduct their business activities. Since the New Deal, the government has been more concerned with business relations, and since the early sixties, the government has been increasingly less concerned with how people conduct their personal lives. Many people believe that this has been a change for the better. Many people, Alito seems to be one them, clearly do not.

Alito’s “originalist” view would make it easier for the government to regulate private matters like contraception and abortion and homosexual rights, and harder for the government to regulate public matters such as safety – either via guns in the schoolyard (which Alito seems to favor) or OSHA regulations (which I would bet that Alito opposes)

The attempts to tie Bork’s noxious originalism to Alito’s different originalism failed, in my opinion, because Senator Kennedy overreached when he tried to show that Alito’s personal behavior at Princton was racist. It never has been. I know people hate it when I say anything nice about the President, but the man who appointed Colin Powell and Condi Rice and Alberto Gonzalez, the man married to Laura Bush, is not appointing racists -- open or closet -- to the Supreme Court.

The better, although less sexy, link would have been to deal with the voting rights cases, and the lukewarm reception Alito gave to the issue of “one-person” “one-vote”. Obviously, the Framers never intended there to be “one person –one vote.” The entire generation of the Founders took it for granted that voting was a privilege. Usually based on property, sometimes on money. But they, and many generations after, tolerated voting restrictions based on religion, race and sex.

Even though voting qualifications were basically a matter of state law, the Framers of the Constitutions give a lot of clues to their thinking on "one-man, one-vote" in the Constitution. If the Framers cared about one-person, one-vote, they would never have put in a 3/5 clause in the original Constitution. If they cared about one-person, one-vote, they would never have permitted a Senate with unequal representation. Although there are other rationales for these constitutional provisions, the “original intent” behind the composition of the Senate, and the 3/5 clause, and the composition of the Electoral College, and the aversion to “one-person; one-vote” was to provide slaveholders with extra representation in the government.

It is no sin to say that the Constitution reflected both the best hope for freedom and the best hope for racist slavery.


to discuss originalism as if it were about freedom, only, and not about slavery,

to discuss originalism without discussing how many provisions in the Constitution today are the product of slavery,

to discuss originalism without getting assurances from Judge Alito that the 13th, 14th and 15th Amendments are entitled to the same respect he obviously holds for Article II Presidential Powers,

is to concede too much to the concept of “originalism.” It also masks what the real problem with originalism is.

Nevertheless, it doesn’t seem that Alito’s originalism is the same as Bork’s.