What the Framers Meant v. What the Framer's Said; or, How Justice Scalia Jumped the Shark

    This was not a good week for the nation’s senior Supreme Court Justice. On Thursday, he saw his former BFF, Chief Justice Roberts, bolt from the conservative coalition on health care and become a liberal rock star. Moments before that decision was announced, he was also abandoned by the Chief on the “Stolen- Valor-Act” ruling, which gave evildoers everywhere free reign to lie about their military exploits.

       But it his dissent in this week’s first big decision—Arizona v. United States—that signaled to both the left and the right that Scalia might just have lost his mind. In this decision, a majority, including Chief Justice Roberts, ruled that, in granting the federal government the power to regulate immigration, the Constitution intended to grant the federal government the power to regulate immigration. Scalia disagrees. The uniform-rule-of- naturalization clause, he insists, grants the federal government the power to set citizenship requirements, but not the sole authority to secure the borders.
       Fair enough. I don’t agree, but this is within the scope of interpretations that the text will support. But, in his extraordinarily political bench statement, Scalia went much further and imagined what the Framers of the Constitution would have thought about the Court’s ruling:

So the issue is a stark one: Are the sovereign States at the mercy of the federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Imagine a provision—perhaps inserted right after Art. I, §8, ci. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits from Independence Hall.

       With this statement, Justice Scalia is playing a very dangerous game. It is a very common game among the far right called "What Would the Framers Have Thought If Only They Could Have Seen Our Day?” As historically interesting as this question may be, it is a spectacularly bad way to try to interpret the Constitution. Trying to derive the Framers’ Intent about the issues they faced is a tricky proposition enough proposition—as not all of them intended the same things; trying to imagine their intent about issues that they did not face is inherently impossible.
       But even if we could know with certainty what the Framers would have thought about immigration, it would still be a fallacy to try to interpret the Constitution based on those intentions. There is a huge difference between the interpretive strategy known as “textualism,” which I fully support and which tells us that we need to interpret the Constitution based on the words on the page in their original context; and the interpretive fallacy known as “intentionalism,” which holds that we must try to derive the intentions of the Constitution’s authors, from any source available, and apply those intentions to the text. The first of the strategies is consistent with the rule of law. The second is not.
              My understanding of the difference between textualism and intentionalism has been informed by a remarkable book called A Matter of Interpretation that was written in 1998. One key passage from this book tells us that

it is simply incompatible with democratic government, or indeed with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated. . . . It is the law that governs, not the intent of the lawgiver. That seems to me the essence of the famous American ideal set forth in the Massachusetts constitution. A government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us. 

             This, it seems to me, gets to the heart of the decision in Arizona v. United States. What the Framers might have THOUGHT about the rights of states to control their own borders is irrelevant; everything that they actually WROTE conferred the responsibility for setting immigration policy on the federal government alone.

             Oh, and the author of these words, and of the excellent book A Matter of Interpretation is, as  you have probably already guessed, none other than Justice Antonin Scalia. 

You're a Good Man, Justice Roberts, and a Conservative

       Like many liberals, I have gained a new respect for Chief Justice John Roberts this week. In both Monday’s decision on the Arizona immigration law, and today’s Affordable Care Act decision, Robert’s broke with the Conservative wing of the court and sided with the liberals. Conservatives are not amused. Rush Limbaugh  and Mark Levin, of course, are going craz(ier). Half of the right-wing bloggers in the country want to impeach their former hero for disloyalty. And Glenn Beck is driving all over the country looking for an edge that he hasn’t already gone over. In general, white men in America haven’t been this upset since M*A*S*H* got cancelled.
       Strangely enough, my newfound respect for Justice Roberts comes from the long-suppressed conservative side of my split political personality. Unlike most of my liberal friends, I was genuinely ambivalent about the Constitutionality of the individual mandate. I supported (and continued to support) the idea of universal health care, but I was not convinced that the commerce clause could legitimately be extended to requiring a commercial transaction. And while I thought that the mandate was a very tax-like thing, I did not think that the government should be able to get away with calling it a tax only when it served their purposes. Like most commentators, I was fairly sure that the mandate was going to be struck down, and I was resolved to see the entire Affordable Care Act go along with it.
       And then John Roberts happened.
       I am still not sure that I agree with the core of Roberts’ decision today. The court basically ruled that if it waddles and quacks it’s a duck, and if it redistributes income to purchase services it’s a tax. I can see the point, but, on the other hand, Congress could have made this process a lot simpler if they had admitted that it was a tax to begin with and structured the legislation accordingly. However, once Roberts came to the conclusion that the mandate was essentially a tax, he could not have ruled other than he did without becoming an in-your-face judicial activist—as the Congressional power to tax is virtually unlimited by the Constitution.
       In his Federalist papers on the subject—especially #34-#36—Alexander Hamilton makes two things very clear: 1) that we cannot safely limit the power to collect taxes because we cannot accurately predict our need for revenue; and 2) that the political difficulties of raising taxes are sufficient to prevent excessive taxation, even with unlimited Constitutional authority. This second point has generally held true. People don’t like taxes, and when members of Congress forget this, they usually end up losing their jobs.
       It is precisely because tax increases are so politically difficult that the Framers felt that they could make them, Constitutionally speaking, slam dunks. This was actually pretty sneaky on their part. By granting Congress complete authority over taxation and spending, they made these issues completely political--questions to be confronted by the people who depend on the electorate for their jobs. Had they created a list of Constitutional and Unconstitutional avenues of taxation, they would have given a great deal of interpretive power to judges with lifetime appointments. As the Constitution stands, however, the courts are simply not part of the revenue-enhancing process.
        Roberts did a good job of bracketing all of the non-Constitutional questions involved with the Affordable Care Act. He did not ask “Is it a good idea?” or “Is it an effective policy?” He did not try to determine whether or not health care was a right. And while the four liberal Justices wanted to tie the mandate to the Commerce Clause, Roberts absoltuely refused to go there. He confined himself the very narrow question, “is the individual mandate a tax?”--a question with clear Constitutional implications. My favorite passage from the decision goes like this.

Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. . . . Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

          In his landmark decision today, Chief Justice Roberts exercised formidable judicial restraint. He presented the Court's role with humility, and he framed the question at issue as narrowly as it could possibly be framed. He declined to legislate from the bench or to overturn the decisions of elected officials without a clear Constitutional mandate to do so. He tied his decision entirely to an interpretation of the Constitution that he had the authority to make. And (breaking with the liberal justices) he did nothing to expand the power of the federal government.
          Until about a week ago, we had a word for judges who thought this way. We called them “conservatives.”

I Think Scott Walker is a Jerk; and I Hope the Jerk Wins Big

The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.” (Federalist #62)

          I don't like Scott Walker. I think he has been a disastrously bad manager who has allowed his state to become become a three-ring circus. And his union-busting in Wisconsin has nothing to do with fiscal responsibility; going after collective bargaining is a ploy to attack a Democratic power base and increase the chance that Republicans will be elected in the future. He has done a great disservice to his state by presenting this as something that has anything to do with balancing budgets. I think he is a colossal jerk, and I really hope that he wins.

           I want the jerk to win, not because I think he is better than the guy he is running against. I think he is much worse. However, I believe, fundamentally, that recall elections are, absent major felonies, very bad things. Furthermore, I believe that the recall madness sweeping Wisconsin during this election cycle is based on seriously incorrect assumption—one that is quickly becoming an article of faith among Americans across the political spectrum. All evidence to the contrary, we believe that our leaders are not responsive to the will of the people.

            What the current debt crisis shows us, however, is exactly the reverse: that our leaders are excessively responsive to the will of the people. And this is a problem because what the people want is more stuff than they are willing to pay for. When people give us stuff and make us pay for it, we get mad and throw them out of office. When people take away our stuff because we can’t afford to pay for it, we get mad and throw them out of office. But when people give us stuff and don’t make us pay for it, we give them power and let them keep it as long as they want. An understanding of how to turn this characteristic into a governing philosophy, I believe, was Ronald Reagan’s most enduring gift to the American way of life. Run up the debt.

             Fiscal responsibility is a good thing to talk about during an election, but it has never actually been a particularly good political strategy. Most people who are really serious about it never get elected; and the few people who do get elected and try to deal with it usually get thrown out of office with all of the subtlety of a mob hit. Deficit spending, on the other hand, is a great political strategy. It gives us(or at least seems to give us) exactly what we want: free stuff.

            We now seem to be groping towards a national consensus that the debt is too high and that we need to do something about it. Wonderful. But there is no such consensus on what to do, and both parties show every willingness to wrench every short-term political advantage from whatever the other side tries. When Democrats suggest raising taxes, Republicans go off the deep end and call them socialists; when Republicans suggest deep entitlement cuts, Democrats take to the air waveand scare senior citizens. The next election is already shaping up to be the ugliest contest of scare tactics and demagoguery since, well, the last election.

            We all know that this is disgusting, immoral, and counterproductive. But they wouldn’t do it if it didn’t work. The great tragedy of a democracy is that it gives us the government we deserve.

            But in the rush to blame Democrats, Republicans, Obama, the Tea Party, and every one  else in Washington for the mess that we are in, the vast majority of Americans have steadfastly refused to place the blame where it belongs: squarely on their own pampered shoulders. For years, we have been rewarding politicians who give us stuff and don’t make us pay for it. And we have been punishing anybody who tried to do otherwise. Why would we expect that they would act differently now?

            Hopefully, Walker will win tomorrow with a big enough margin to prevent the recall election from becoming a standard tactic to use against politicians who raise taxes, cut spending, negotiate with the other side (not that the Walker did any of this—it’s the principle of the thing), or otherwise engage in activities that ignite “violent passions” and tick off “factious leaders.” It will be impossible to expect politicians to act like grown ups if they can be fired at any time by a collective temper tantrum.