Updated Commentary on Wrong the Day it was decided
The trouble with divining "original intent" is that it can lead to anachronistic interpretations and faulty reasoning beyond simply anachronism fallacy! The trouble with the terms "cannonical" and "anti-cannonical", is that they try to apply religious terminology to what is essentially a human endeavor. Legal systems are designed to bind society to the wisdom and prescriptions of accepted law. But human interpretation is still necessary and so, just as the Plessy Versus Fergussen or Dredd Scott decision were later overturned; our understanding of law can and must change as society evolves. The constitution is a dead document unless we who live apply its principles as well as its dictates rationally and are able to use legal process to change those that must change. In some cases that might mean the amendment process, in others it is a matter of definition. The author of "Wrong the Day it was Decided" sought in the concept of "Constitutional Historicism" to bring principles of textual analysis to judicial decision making.
Background
In 2007 I found this gem that expresses the issues related to how to interpret the constitution intelligently given changing societies and understandings of basic principles such as liberty, justice, etceteras… at:
- http://digitalcommons.law.yale.edu/fss_papers/236/
- ...back in 2007
The article described and compared the decision of Lochner v. New York to:
- Plessy Versus Fergussen,
- & Brown Versus the Board of Education which overturned Plessy."
You can see the Lochner Versus New York Decision at: https://supreme.justia.com/cases/federal/us/198/45/case.html
He posed the question of what makes works “canonical” or “anti-canonical.” And developed the theme that:
"works are “canonical” (Brown versus Board of Education) or “anti-canonical” (Plessy Versus Fergusen) according to changing understanding of what the Constitution is about”
The idea that definitions, concepts or even understanding of the facts behind those concepts and definitions shift with changing circumstances, consequences and feedback. He then discusses the three cases and:
"each of the views of the constitution that are cited to justify changing from a clearly nasty decision like Plessy to Brown, or in the case of Lochner versus new York."
To Something that is obviously just in our own eyes. He then explains his theory of:
Constitutional Historicism
He wrote:
“In posing these questions, I have employed a particular constitutional theory of my own – constitutional historicism.”
As I explained at the time:
Constitutional historicism holds that the standards of good and bad legal argument about the Constitution change over time in response to changing social, political, and historical conditions. Not only does doctrine itself change over time, but also the constitutional common sense that allows well-socialized lawyers to recognize what is a better and worse argument, what is a plausible interpretation of the Constitution and what is “off-the-wall.”
Shifting Understanding makes Interpretation Unavoidable
The notion that literalist divinations of the "original intent" are somehow "original Intent" of some omniscient and all wise "founders" is anachronism because neither we nor they are omniscient nor all wise. As I wrote:He is not talking about a “living constitution” in the sense that others have described it, but in the sense that the understanding of the constitution reflects the life and morals of the people of the time — and that embodies a shifting sense of what is “common sense” and true about the world.
The Fallacy of Darwinism
Literalist divinations are anachronistic because common sense shifts. For example Thomas Jefferson, when he stated "all men are created equal", meant all men, but had never considered women, or slaves. The notion that landless men should have a say was novel. In some writings he seems to have meant it universally, but if we parse the principle the way he wound up doing, we corrupt that principle. Our understanding of "common sense" has evolved. At the time I wrote this I'd been reading about William Jennings Bryan so I used him as an example:
"For example, ...William Jennings Bryan opposed Darwinism on the grounds of it contradicting Christian principles and his literalist understanding of Genesis — not because his egalitarian principles opposed social Darwinism."
William Jennings Bryan did oppose social Darwinism, on the same grounds. It would have been nice if his arguments against Clarence Darrow had been against its social darwinian aspects. But the point is to oppose Darwin on his arguments during Bryan's time or our time is to engage in anachronistic arguments. Essentially "Originalism" is an approach to law that engages in anachronistic Fallacy. As I said at the time:
"A person who opposes Darwinism in our day and age might oppose it on the same grounds — but would also throw in arguments about the implications and misuse of Darwinism to justify a dog-eat-dog society. While the truths themselves don’t change, the framework and understanding of those issues does."
Of course moderns try to oppose Scientific Darwinism while at the same time supporting Social Darwinism. A lot of the leadership are secretly fully Darwinian but don't advertise. They dig up fallacious arguments based on the Life of King David or similar to justify their ideology, but it is pretty obvious from their recommendations to read Ayn Rand (Who was Darwinian and Atheist) while claiming Catholic Orthodoxy. At one time folks opposed Darwinism on credible arguments, but now it is just an excuse.
Legal Arguments should Hinge on Consistent Principles
He goes on:
“Historicism does not deny the felt constraint of legal materials on well-socialized lawyers and judges at a particular point in time. Otherwise, the very distinction between the plausible and the “off-the-wall” would make no sense.”
Original Intent, Definition and Purpose
Interpretation should respect "original intent", when it comes to the legal principles involved. Those regard the definitions and purposes of the words used and the principles behind those words. Understanding the social context, the "common sense" of the time is important in the context of defining those principles, but it is not a dead hand of anachronistic beliefs as those have to change as reality shapes them. Instead interpretation is in the context of the verification and validation of reality as causality influences how we process it. The result is that historicism:
“argues that legal materials and legal conventions, and particularly those that apply in constitutional cases, offer sufficient flexibility to allow constitutional argument to be a site for political and social struggle. Through these struggles, the internal conventions of constitutional argument and the constitutional common sense of a particular historical period are reshaped.”
Our predecessors guide us. They are not a dead hand. The words of the constitution don’t change unless amended. He then goes on to examine whether Lochner versus New York was wrongly decided by the standards of the time. He then demolishes the idea that it necessarily follows from historicism that cases are always decided rightly even by the standards of their own time. He states that while the law (and the Constitution) provide restraints:
“My view, in contrast, is that culture enables and empowers rationality and freedom as well as limiting and constraining them.”
In other words, we are still responsible for our decisions not despite of, but because they are conditioned by society and its norms. A person who commits barbaric acts, acts that are barbaric even by the standards of his own day, is a barbarian whether those standards change or stay the same. All that changes is our level of awareness of just how barbaric those acts are (or were).
On the other hand mores do change. The relationship of the State and individuals to contracts has changed. At one time contracts were so sacred that they were a regular source for tall tales about people selling their souls to the devil. There was almost no such thing as an “illegal contract.” And indeed the core of the Louchner case depended on the notion of the sacredness of contracts. Peckham spoke for the majority:
“We think that there can be no fair doubt that the trade of a baker, in and of itself is not an unhealthy axe to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual.”
“ … It might be safely affirmed that almost all occupations more or less affect the health of the individual. There must be more than the fact of the possible existence of some small amount of unhealthiness…”
The author continues:
“Peckham’s majority opinion and Harlan’s dissent shared many assumptions about the police power and judicial review, although Peckham was somewhat more of a libertarian.”
And then he writes:
“The true outlier in Lochner v. New York is Justice Holmes, who does not join Harlan’s dissent. Holmes rejects the premises of limited government and police power jurisprudence and offers what is essentially a parliamentary model of democracy:"
“the legislature can do whatever it likes. Judged solely by the professional and doctrinal assumptions of its time, Holmes’ famous dissent is rather unconventional, although, as Barry Friedman has recently pointed out, it resonated quite well with the political views of many contemporary Populist and Progressive thinkers.”
He then compares Holmes and Thomas’ “off the wall” comments:
“Put in today’s terms, Holmes’ dissent in Lochner is a bit like Clarence Thomas’ concurrence in United States v. Lopez in which Thomas argued for a drastic reduction in the federal government’s constitutional powers to regulate interstate commerce; his arguments, if accepted, would call into question the constitutionality of much of the modern regulatory state.”
“Thomas’s extremely narrow view of federal power, while lying outside the boundaries of conventional professional assumptions, nevertheless has some resonance in conservative political circles and in the larger political culture.”
“Of course once a member of the Supreme Court makes such an argument in the United States Reports, it no longer seems as “off-the-wall” as it had before. Legal culture has an important place for such “off-the-wall” arguments.”
Then he says:
“They are a form of prophecy. They dare others to think differently about settled questions in a constitutional regime. They try to unsettle what seems fixed and certain. Even if today a particular position seems extreme, the position asserts that it is the true meaning of the Constitution that will come to be recognized in time.”
“Off-the-wall” arguments cannot wholly be excluded from a legal culture.”
“At the same time, they represent views that reflect extremes in the political culture that may be “upcoming” or may be simply extremes. Holmes dissent might not be such a good idea after all in our own context. Clarence Thomas’ point may be an utter disaster if accepted.”
As he says
“What makes Justice Holmes’ dissent in Lochner no longer “off-the-wall,” but rather an example of constitutional orthodoxy, is not the quality of his argument at the time, but rather what happened later on.”
Holmes was making a prophesy of the state of things that folks like Andy or Thomas currently decry. They represent antipodes of opinion. He next says:
“If Harlan looks increasingly sensible today, that is because we have lived through the Rights Revolution and the Second Reconstruction. We understand that judges need ways of balancing competing interests and protecting liberty from legislative overreaching.”
We need balance in governance. We need linkage to principles. We need principles to be linked to common sense and self interest be moderated by principles. However, our concept of what those principles are shifts with time. It’s not the constitution that shifts. It is our own relationship to it.
He concludes:
“For example, it is not difficult, I think, to conclude that Harlan’s approach in Lochner was available (after all, it commanded three votes).”
“If we want to say that it was also better, a more successful legal performance, a more admirable product of the contested legal culture of early twentieth century America, we must bring to bear our present day judgments about what this admirableness consists in.”
“There is nothing wrong in that; if it is anachronistic, it is an anachronism necessary to historical understanding. The fault is in assuming that the best version of Lochner v. New York is the one that most closely matches our own constitutional common sense. Put another way, the mistake is in automatically assuming that Lochner was wrongly decided because the right way to decide it was Holmes’ way, which seems more familiar to us in light of the New Deal.”
Harlan’s dissent seems somewhat more reasonable in our day:
“Speaking generally; the State in exercise of its powers, may not unduly interfere with the right of the citizen to enter into contracts that may be necessary and essential in the enjoyment of the inherent rights belonging to everyone among which is the right to be free ‘in the enjoyment of all his faculties, to be free to use them in lawful ways, to live and to work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or vocation.’”
The web site author says:
“But, Harlan specifically notes that the right of contract itself is subject to certain limitations which the state may lawfully impose in the exercise of its police power. While this power is inherent in all governments, it has doubtlessly been expanded in the past half century owing to an enormous increase in population, urban living, and persons employed in dangerous occupations.”
Such regulations to impose limits on the power of businesses as local government to put people at risk or harm them, thus [should] superscede the power of corporations to force people to sign contracts signing away such rights. According to Harlan. However,
“Having laid this foundation, Harlan notes that if there is a dispute or doubt as to the validity of the statutes [i.e. fair debatable] that doubt must be resolved in favor the state and the statute’s validity, and the c[our]ts must keep their hands off, otherwise the Court places itself in the role of enacting or disapproving legislation.”
When the courts start legislating they get involved in partisan decision making.
Harlan: “Whether or not this New York law is wise legislation is not the province of the court to inquire. Under our system of government, the courts are not concerned with the wisdom or policy [substantive due process] of legislation.”
Harlan: “The State’s regulation of bakery’s wasn’t “unconstitutional” simply because it violated some sacred right of workers to work and of bakers to make them work more than 60 hours a week. There had to be a compelling violation of rights involved and not a mere policy dispute.”
“In our own time Harlan sounds more reasonable than either Peckham or Holmes.”
“Going by Holme’s reasoning the State can do anything.”
“Going by Peckhams’ reasoning the courts can intervene in policy matters such as they did in Bush Versus Gore.”
“Going (literally) by Holmes’ reasoning the State can arrest Doctors in California for prescribing medicine, or declare people enemy combatants and lock them up without due process. In either case the result is injustice and bad decisions.”
The case was “wrong on the day it was decided” — by our standards, but not for the reasons that its opponents thought at the time; as the author says:
“If Lochner was wrong the day it was decided, it will not be for any of the reasons that we law professors continually offer for why it was wrongly decided.”
- “It will not be because the Justices failed to recognize the artificiality of common law baselines.”
- “It will not be because the Justices failed to understand that the proper role of courts was to police the democratic process.” And
- “it will not be because the Justices did not realize that social and economic legislation is to be upheld unless it is rationally related to some set of facts that a rational legislature might have believed.”
Rather,
“if Lochner was wrong the day it was decided, it will be because those who lived in that time, enabled by the tools of understanding that their legal culture offered them, could have done better for themselves. Doing better would have shaped, however subtly, the legal culture they lived in. That improvement, in turn, might have had important ripple effects in the trajectory of the legal culture they inhabited. Indeed, if they had done a better job, we might well not be living in the legal culture we inhabit today.”
I concur
Notes and Further Reading
Original publish date: September 12, 2007, by Christopher H. Holte
In 2007 I wrote a review of an article by J. Balin at the yale law review. The original has been moved but my original post is my old fraught with peril blog titled Wrong the Day it was Decided. And a copy of the article can be found at: http://digitalcommons.law.yale.edu/fss_papers/236/ My old link doesn't work anymore because they moved the file since then.
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I reposted it here because I wanted to reformat it and update some things.
Chris
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