In its simplest form, the plaintiffs’ argument maintained that Congress lacks the power under the Commerce Clause to force Americans into the market to buy health insurance when they have not already done so and have no desire to do so.  In essence, the plaintiffs argued that Congress can only regulate existing commerce, and those who do not possess health insurance are not in the market and thus cannot be forced to join it through congressional mandate.

Silberman essentially concludes that Obamacare falls within Congress’s power under the Commerce Clause for two reasons. First, he claims that the language of the Commerce Clause does not impede Congress from forcing all Americans to buy health insurance.  Silberman explains:

“We look first to the text of the Constitution. Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (emphasis added). At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as “[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’ In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument. So we turn to Supreme Court decisions.

“The Framers, in using the term ‘commerce among the states,’ obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction. See Lopez, 514 U.S. at 553-61; id. at 568-75 (Kennedy, J., concurring). Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible. See United States v. Morrison, 529 U.S. 598, 610, 615-19 (2000); Lopez, 514 U.S. at 558-61, 566-67. Those limitations are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior –- if only decisions whether or not to purchase health care insurance or to seek medical care -– that does substantially affect interstate commerce.”

Second, Silberman states that the individual mandate is analogous to a program upheld by the U.S. Supreme Court in the infamous case of  Wickard v. Filburn:

“We think the closest Supreme Court precedent to our case is Wickard v. Filburn, 317 U.S. 111 (1942). There, a farmer ran afoul of his allowed wheat acreage under the Agricultural Adjustment Act of 1938 by growing additional wheat, not for sale, but to feed his family and his livestock. Id. at 114-15, 118-19. Filburn argued that the Act was unconstitutional as applied to him because he was not using the excess wheat for any activity in the interstate market. The Supreme Court unanimously rejected this claim. It held that even growing wheat for personal consumption, not for sale in any maket, could affect the national price, and therefore was within Congress’s commerce power. Id. at 127-28. This conclusion was not only because his wheat might be diverted into the national market, as was recognized in Gonzales v. Raich, 545 U.S. 1, 18-19 (2005). Justice Jackson said even ‘if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.’ Wickard, 317 U.S. at 128 (emphasis added). Justice Jackson thus recognized that the Act ‘force[d] some farmers into the market to buy what they could provide for themselves.’ Id. at 129. Although a regulation limited the size of the farms covered, the logic of the opinion would apply to force any farmer, no matter how small, into buying wheat in the open market. See Raich, 545 U.S. at 20. Wickard, therefore, comes very close to authorizing a mandate similar to ours, at least indirectly, and the farmer’s ‘activity’ could be as incidental to the regulation as simply owning a farm.”

That Silberman would contend that the individual mandate is permissible under the precedent of Wickard is not surprising. Wickard is, without question, the worst Commerce Clause decision in U.S. Supreme Court history.  Its implication is that there are no boundaries to the power of regulating interstate commerce.  Indeed, in a remarkable passage in yesterday’s opinion, Silberman admits that the lack of any limitation on the Commerce Clause power — which is the inevitable conclusion of upholding the individual mandate — gives him some pause.

“We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right. Cf. Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2272 (2009) (Roberts, C.J., dissenting). It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.”

(Emphasis added.)

Thus, Silberman looks past the fact that upholding the individual mandate means that Congress could require individuals to purchase anything in the marketplace without limitation simply by observing that the health insurance market is “unique” in the sense that everyone eventually uses health services.  This is hardly comforting as one can come up with a multitude of items that everyone, or nearly everyone, uses in the marketplace, such as food, clothing, transportation, housing, etc.  Imagine if Congress decided that for the good of the national economy everyone must purchase a General Motors vehicle or that all must buy only a particular type of meat. The government was unable to tell the D.C.Circuit Court why Congress would not have the power to impose such mandates under the Commerce Clause, and Judge Silberman could not think of a reason either.

The basis of this stream of thought appears to be the understanding that there are no limits on the interconnectedness of the national economy.  As Silberman observes:

“The shift to the ‘substantial effects’ doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce. See Lopez, 514 U.S. at 555-56. That accepted assumption undermines appellants’ argument; its very premise is that the magnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce.”

We now arrive at the core of the problem with Silberman’s analysis.  Silberman makes the seemingly straight-faced claim that the text of the Commerce Clause does not limit the power of Congress to require an individual mandate, but then he accepts the U.S. Supreme Court’s “shift” in the definition of the term “commerce” in the Constitution for the apparent reason that it merely recognizes an economic reality.  Notice that Silberman declines to define the common understanding of the term “commerce” at the time the Constitution was adopted.  I assume Silberman avoids the issue because of his acknowledgment that the U.S. Supreme Court has changed the definition of “commerce” in such a way as to obliterate any previously recognized limitation on power contained in the term.  Of course, this is nothing new for the High Court, as it has redefined a host of terms in the Constitution, such as “the establishment of religion,” “the freedom of speech, and “due process,” just to name a few notable examples.  Just because the Supreme Court has changed the definitions of those terms, however, does not make it correct (or even the law).  In fact, the whole point of originalist jurisprudence is to challenge the notion that the terms of the Constitution change –- or as progressives like to put it “evolve” — over time to suit the needs and assumptions of the current generation.

The question that needs to be asked is whether the modern economy as the world understands it must be synonymous with “commerce” as it is understood in the Constitution?  If the test for what Congress can regulate revolves around whatever “substantially affects” interstate commerce, then it naturally follows that Congress can regulate anything because any choice an individual makes conceivably could affect the economy in some way (the term “substantially” is a uselessly vague modifier).  The point of the Constitution, however, was to create a federal government with enough power to achieve the ends required to sustain a sovereign nation comprised of numerous individual states without giving the federal government so much power that the states and individuals became superfluous.  To that end, as James Madison put it in Federalist No. 45, “[t]he powers delegated by the proposed Constitution to the federal government, are few and defined.” The Commerce Clause is one of those defined powers.  Granting the federal government the power to impose an individual mandate on all Americans via the Commerce Clause removes all limitations on federal power, as Silberman admits, by interpreting any activity engaged in by individuals (or even not engaged in as here, where people who have not purchased insurance are forced to do so) as “affecting interstate commerce.”

Thus, interpreting the Commerce Clause in a way that envisions no boundaries on what constitutes economic activity destroys the very purpose of the Constitution in listing specific, defined powers for the federal government.  I would suggest that an interpretation of the Constitution that undermines the fabric of its existence cannot be correct.

“Commerce,” at the time of the Founding, concerned the selling and trading of goods.  Justice Thomas conveniently summarized the definition in his dissent in Gonzales v. Raich, 545 U.S. 1 (2005):

“As I explained at length in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586-589, 115 S.Ct. 1624 (concurring opinion). The Clause’s text, structure, and history all indicate that, at the time of the founding, the term ‘”commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes.’ Id., at 585, 115 S.Ct. 1624 (THOMAS, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586-587, 115 S.Ct. 1624 (THOMAS, J., concurring). Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term ‘commerce’ is consistently used to mean trade or exchange-not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (THOMAS, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L.Rev. 101, 112-125 (2001). The term ‘commerce’ commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L.Rev. 847, 857-862 (2003).”

545 U.S. at 58-59.

Employing the original definition of the term “commerce” may seem arcane and inefficient in the age of an instant global economy, but limiting the definition serves the extremely important function of preserving our system of governance.  It is a system that insists that power flows from the people to the government and that government exists to serve the people, not the other way around.  One would think that a judge like Lawrence Silberman would understand this, but we now must turn to the justices of the Supreme Court to see if they can grasp it.

My Dad pointed me to this column recounting a radio interview United States Supreme Court Justice Stephen Breyer recently gave in which he lamented that we are living in an era marked by a crisis in judicial legitimacy. If I were to accept Justice Breyer’s premise, I would argue that the crisis has been created by judges like himself and the one extensive quote from Justice Breyer in the column amply illustrates why this is so. Justice Breyer stated:

“The border is cold and difficult. It’s hard to decide whether abortion is on one side, or is it on the other side. Prayer in schools – on one side or on the other side? There’s some very, very difficult cases. But what people cannot forget is that between those boundaries, there is vast, vast space where the democratic process is at work, and we have no business interfering. There are doctrines designed to keep us from interfering too much. One is judicial restraint, which certainly I try to follow, and I think my colleagues do, too. And judicial restraint means it has to be pretty wrong before you’re going to jump in. And actually, I mention that, because I’m pretty good on judicial restraint. And this was the dilemma. What Hamilton thought was if nobody, if there’s no organ of government that has the last word as to what the Constitution refers, well, you can hang that Constitution up in a museum. No one will pay attention. But if it’s the President who will have the last word, he might become a tyrant, deciding everything in his own favor. If it’s Congress that has the last word, how do we protect those who are unpopular? Because elected people, quite properly, are experts in popularity. They know what’s popular and not. But this document gives the least popular person the same rights as the most popular person. And that’s why you turned it over to judges. And it’s taken 200 years. I mean, you were alive. I was certainly alive during the time that Brown versus Board of Education declared that segregated, racial segregation is unconstitutional. It took quite a few years before that was made a reality, a legal reality in the South.”

This is classic Justice Breyer all-around. First, he likes to claim that the cases are just so hard to decide when they really are not. Certainly, Justice Breyer’s voting record provides no evidence that it really is a struggle for him. He supposedly finds abortion and prayer cases difficult and yet he votes the exact same way every time, which is to say in favor of abortion and against prayer. Moreover, those cases simply are not difficult: either you believe the Constitution protects a right to abortion or you do not; either you believe the First Amendment prohibits prayer in a government-sanctioned setting or you don’t. It is the Supreme Court that has chosen to make these issues difficult by inventing trimester tests and Lemon tests and Coercion tests and on and on. Justice Breyer likes to think he is dealing with cases “on the border” as he says or “in the cracks” (to quote my favorite law professor) on these issues, but he is not. That is just a soundbite he is feeding listeners so that they believe he agonizes over these decisions because he knows the country is deeply divided on the abortion issue and they are overwhelmingly in favor of public prayer. After all, doesn’t it make him sound so much more thoughtful and empathetic if even the brilliant Justice Breyer has to think deeply about these cases?

Second, when Justice Breyer says that “[t]here are doctrines designed to keep [the judiciary] from interfering too much” and that one of those doctrines is judicial restraint, I find it quite telling that the first thing that comes to his mind when discussing restraints on the judiciary is something not mentioned in the Constitution. You see, the design and wording of the Constitution are supposed to keep the judiciary in check through the separation of powers, checks and balances, jurisdiction, impeachment, and the simple fact that the Constitution is a written document that uses plain language (just to name some of the restraints). Instead of naming any of those things, Breyer immediately jumps to the frankly vague concept of “judicial restraint.” In fact, notice how he defines the concept: “judicial restraint means it has to be pretty wrong before you’re going to jump in.” What? What has to be “pretty wrong?” The prayer offered in a government-sanctioned setting? An abortion? The execution of a criminal? Even if you figure out what the “wrong” is, who determines how wrong the thing has to be before the judiciary steps in? Well, the judges of course, which is why this concept is no restraint at all. It’s just a phrase that sounds good, which is why you hear politicians use it.

Third, even exempting the vagueness of the term, I am fairly certain that Justice Breyer is the only person on planet earth who believes that he is “pretty good on judicial restraint.” Most liberals today will openly admit that they do not want judges who practice judicial restraint because they think that is code for strict construction of the law. If the law is a blank book and the judges are the authors who fill its pages, then from their perspective there are no limits to “liberty” and therefore life is good. (Here “liberty” is used in the hedonistic sense, not the traditional understanding of ordered liberty espoused by Burke and others). Justice Breyer does not actually believe that the Constitution constrains anything, so it is comical for him to use his judging and the word “restraint” in the same sentence. On how many occasions has he voted to limit the meaning of the Constitution? This is just more proof that he is employing the term to win points with his listeners because he knows they do not want to hear that he believes he knows better than they do how our country should be.

Fourth, even if it was true that Justice Breyer is “good on judicial restraint,” how arrogant is it to say so in such a direct and public fashion? He could say, “I try very hard to practice restraint and to remember that we merely decide cases, not the course of this democratic republic.” Instead he puffs himself up and proceeds to misuse Alexander Hamilton to support his position. It says a lot about a person when he openly compliments himself like this, especially if he is not a politician. To some degree the politicians can be forgiven for telling us all the time how great they are (although Jon Huntsman may have set a new record for this in a two-hour period during the Republican debate the other night) because they need to give people reasons to elect them. But a sitting United States Supreme Court justice has no such excuse.

Finally, I mentioned Justice Breyer’s misuse of Alexander Hamilton. Breyer states that “Hamilton thought [that] if there’s no organ of government that has the last word as to what the Constitution refers, well, you can hang that Constitution up in a museum. No one will pay attention. But if it’s the President who will have the last word, he might become a tyrant, deciding everything in his own favor. If it’s Congress that has the last word, how do we protect those who are unpopular? … And that’s why you turned it over to judges.” It’s almost inconceivable the number of levels on which this statement is wrong. It’s like some bad and boring version of Inception where someone planted a plausible-sounding but false idea about the Constitution into Justice Breyer’s head and he has turned it into the cornerstone of his judicial philosophy.

Presumably when Justice Breyer mentioned Hamilton he was referring to Federalist No. 78 in which Hamilton discussed the power of judicial review, which means that the judiciary has the power to declare laws unconstitutional that violate provisions of the Constitution. In fact, Hamilton’s main mission in Federalist 78 was to justify the provision of the Constitution which states that federal judges are to be appointed for a term of “good behavior” rather than for fixed terms or serving at the pleasure of the President. In the course of explaining the reasons for giving judges such job security, Hamilton does, in fact, say that if Congress can determine the meaning of the Constitution it would be the equivalent of substituting the will of the agents of the people (Congress) for the will of the people (the Constitution). He also states that an “inflexible and uniform adherence to the rights of the Constitution, and of individuals [is] indispensable in the courts of justice.” To this degree Breyer accurately reflects what Hamilton was espousing.

However, Justice Breyer completely ignores the most famous passage from Federalist 78 in which Hamilton proclaims:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. … [T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; ….”

In writing these words Hamilton assumed (wrongly, it turns out) that the other two branches of government would prevent the judiciary from substituting its will for the will of the people expressed in the Constitution under the guise of interpreting the law. He also assumed (again wrongly) that judicial rulings on cases would not become national policies. Most important for purposes of Justice Breyer’s quote, though, is the humility Hamilton assumes of the judiciary. To Hamilton, the judiciary is the least dangerous, least powerful, and least consequential of the three branches of government. You would not know that, however, from Justice Breyer’s comment. No, to hear him tell it, the judiciary is the most indispensable branch–the “last word” on the Constitution and the only defender of individual rights against the tyranny of the majority. Hamilton does not say this. In fact, he states that because of “the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches” of government. Further, when Hamilton proclaims that the courts have a duty “to declare all acts contrary to the manifest tenor of the Constitution void,” he does not say that this is the “last word” on the meaning of the Constitution. Indeed, how could he mean this and still say that the judiciary is dependent upon the executive for the efficacy of its judgments? Justice Breyer takes the principle of judicial review and uses it to elevate the judiciary’s role in our republic to the first rank when Hamilton did the opposite.

It was axiomatic with Hamilton, as with the other Founders, that the judiciary had a responsibility to interpret the law while the legislature made the law. Hamilton’s premise concerning judicial review works only so long as judges refuse (and are prevented through other mechanisms) from substituting their will for the will of the people expressed in the Constitution; in other words, so long as judges do not make the law. This, in fact, is what “judicial restraint” really means. But if judges are the final word on the Constitution’s meaning and there is no check on their exercise of this power, then the judges are the Constitution, at which point we no longer have a republic, but rather an oligarchy. Justice Breyer and other judges of his ilk negate the simple truth that judges must interpret rather than make law by insisting that the Constitution contains malleable generalizations into which they can read whatever right or restriction they wish. The beauty of the Constitution, they insist, is that it can be remolded for each new generation and era. But Justice Breyer did not repeat that philosophy for this audience. Instead, he hid behind soundbites and misrepresentations of Federalist 78 to support his view of judicial supremacy.

In the opening of the article to which I linked at the beginning of this post, the author states that Justice Breyer is concerned that we are living “in an era marked by a crisis in judicial legitimacy.”  Justice Breyer is correct on this score, but not in the manner he means.  He thinks there is a crisis because the judiciary occasionally gets criticized for its decisions.  The real crisis is that the judiciary wields far more power and determines many more of the key public issues in our country than the Founders ever dreamed possible.  If the judiciary is receiving more criticism today than in the past (a dubious proposition when one recalls the withering barbs rightfully heaped upon the Court for the Dred Scott decision), Justice Breyer has no one to blame but himself and his cohorts because people correctly perceive that decisions are not being made according to the written law but rather based on the personal whims of the judges (epitomized by the decision discussed in this earlier post).  In other words, any existing crisis in the judiciary is one of Justice Breyer’s own creation.  The Bible says “let him who thinks he stands take heed lest he falls.”  (1 Corinthians 10: 12).  Those like Justice Breyer who raise the judiciary to such heights of power and importance have, in doing so, devised the means for its own downfall.  One can only hope that such hubristic power also is not the defect that cripples our constitutional republic.

I always think it is a little dangerous to project what Whittaker Chambers would have said about the issues we face today, particularly when he did not write on a topic much, but this article by Andrew Bostom positing what Chambers would say about Islam is one that does a very thorough job attempting to do just that.  The real version of the article is even longer and more convincing, though a tough slog.  In the shorter version, the most interesting quote to me is not from Chambers but from James Freeman Clarke in which he makes the observation in contrasting Judaism and Islam that Judaism calls for conformity to divine character while Islam merely calls for conformity to divine will.  This is a profound difference, a difference rooted in freedom, and freedom certainly was a central concern of Chambers, both in its spiritual and political forms (with Chambers believing the two were intimately connected).  It reminds me yet again that Christians do a disservice to their faith when they emphasize obedience over choice.  Christianity is not about following God because He commands it; it is about following God because of love.  I continually marvel in this thought that God could command our obedience but He does not because He wants us to truly love Him.  Of course, one of our motivations for obeying God can be simply because He is our Creator and King, but motivation is different than purpose.  Our purpose in obedience is not to be a good soldier; it is to be like Christ–who obeyed His Father’s will by dying on the cross, but did so because of His love for us, not because it was commanded of Him.

As I said, I agree with Bostom that striking similarities exist between Communism and Islam, and that Chambers would have warned us about the dangers of Islam.  I feel constrained to observe, however, that I think Chambers would have drawn at least one sharp distinction between the two.  Chambers repeatedly noted that what is so dangerous about Communism is its appeal to man’s inherent nature.  As Bostom notes, Chambers once stated: “Modern man was challenged to choose between the traditions of a 2,000-year-old Christian civilization and the new totalitarian systems which, in the name of social progress, contended for the allegiance of man’s secular mind. The promise of the new ideas was as old as that serpentine whisper heard in the dawn of the Creation: ‘You shall become as gods’ — for the first traitor was the first man.”  Communism is antithetical to religion because it places man at the center of all things.  I realize that one can argue that all false religions in a way do the same thing, but at the least they do not do it in the same way–even Islam.  My point is that Communism is alluring in a way that Islam is not.  While we should be mindful of the depth of the determination of Islam’s strongest aherents to destroy all who do not conform to its teachings, it could never hold the same threat level as Communism (or its current counterpart Nihlism) because Islam is not capable of winning people’s minds and hearts the way Communism is capable of doing.  To put it another way, I think someone who grows up in this country has a much greater chance of becoming a Communist than becoming an Islamisist.  You can read any one of a number of Leftist electronic outlets such as the Daily Kos, the Huffington Post, Salon.com, Mother Jones or even The New York Times to see this.  These are people who are absolutely convinced they know what is best for everyone and they are willing to employ the power of government to enforce it.  (Obamacare is an easy example).  Of course, Islamisists use the power of government as well, but that is only when that religion and the government are one (as in the Middle East).  There is no subversion in Islam; it is straightforwardly fascist and obtusely so (how many converts do you make with suicide bombs?)  Chambers said over and over again that what makes Communism a legitimate threat to the West is its subversive nature: its adherents possess both the willingness and the capacity to use any means to achieve its goals.  Again from the same Chambers quote repeated by Bostom: “Other ages have had their individual traitors — men who from faintheartedness or hope of gain sold out their causes. But in the 20th century, for the first time, men banded together by millions, in movements like fascism and communism, dedicated to the purpose of betraying the institutions they lived under. In the 20th century, treason became a vocation whose modern form was specifically the treason of ideas.”  One can cite examples of individual adherents to Islam who have done the same (the Central Park bomber and the shooter at Ft. Hood come to mind), but one will not find groups of Islamisists in the thousands or millions inside this country orchestrating as such the way you will Moveon.org, which is much more subtle and therefore ultimately more dangerous.

I truly believe Chambers would say that Communism is not dead, it simply lives on in a different context now that the Soviet Union is defunct and the Cold War seems like a distant memory.  He would urge us to recognize and answer the very real threat that Islam represents, but not for us to do so to the exclusion of defending the West against its tireless and more sinister adversary that constantly seeks to undermine from without and within.

There have already been several fine commentaries on the decision that have picked it apart piece-by-piece. I will not attempt to add or improve upon those observations. Instead, I want to focus on a single claim from the decision, which also happens to be the central basis of the ruling. Judge Walker stated: “[T]he evidence shows that Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples.”  Judge Walker purported to support this statement with the claim that “the evidence at trial” demonstrated that “the most likely explanation” for the passage of Prop 8 was “a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples.”  (Emphasis added.)

Fundamentally, Judge Walker (who is really a libertarian, not a conservative as some claim) contends that Proposition 8 impermissibly (meaning unconstitutionally) proclaims that intimate heterosexual relationships are “morally superior” to homosexual ones. There are several problems with this conclusion, with the first being that it simply assumes that limiting marriage to a particular kind of intimate relationship represents a statement on the inferiority of all other intimate relationships.  Prop 8 merely defines what the institution of marriage is in the State of California. I would wager that there are thousands of intimate heterosexual relationships in California that (regrettably) do not meet the definition of “marriage” any more than homosexual relationships do.  The only way Prop 8 can lay claim to making a statement of moral superiority is if one views marriage itself to be superior to other forms of intimate relationships. Certainly, society at least used to view marriage in such a light, but there are many today who argue that the concept of marriage is a bastion of a bygone era and it does not reflect the reality of how human beings relate to one another. Indeed, we heard this exact argument from the homosexual lobby for many years before they believed it would be possible to convince society to recognize their relationships as “marriage.”  But we now know that this particular argument was a sham, or at least the homosexual lobby has long-since discarded it. The reason for this is simple: people did not buy it. Indeed, Judge Walker proclaimed in his opinion that “marriage is a socially superior status to domestic partnerships.”  Given the reasoning in his opinion, one wonders what baseline Judge Walker is using to determine the ”socially superior status” of marriage, but in any event his statement confirms that no matter how much marriage has been disparaged in our society, there remains a steadfast belief that marriage is the pinnacle of intimate relationships.  To the Christian this is completely unsurprising because we know God created the institution of marriage and implanted it upon our hearts, but to those who reject Christianity the superiority attributed to marriage must truly be confusing.

Thus, by claiming that Prop 8 embodies a statement of moral superiority, Judge Walker elevates the idea of marriage itself. Using Judge Walker’s logic, one should ask the following question: Why doesn’t the very existence of marriage itself — whether it is defined as solely heterosexual or also homosexual — violate the Equal Protection Clause of the Constitution? Why is the State of California allowed to proclaim a couple that binds itself together through marriage to be morally superior to the couple that lives together outside of the bonds of matrimony? Taking Judge Walker’s reasoning to its logical conclusion, California should not be permitted to single out married couples for special treatment because it raises one class of couples to a status above others.

Of course, the reason Judge Walker does not take his logic to its final conclusion is that it would defeat his purpose and result in an absurdity that no one other than a California judge would accept. Judge Walker’s purpose is to elevate homosexual relationships to the same status as heterosexual relationships in both legal and social acceptance. Because even he knows that the institution of marriage is still venerated in this country (at least in theory, if no longer in practice), one way of achieving the goal of homosexuals gaining complete legal and social acceptance is to allow them to marry just as heterosexuals are permitted to do. Thus, it would not do for him to proclaim that the institution of marriage itself violates the Constitution because it would deprive homosexuals of the status symbol they have been seeking (solely through the courts) for several years. Moreover, declaring that marriage violates the U.S. Constitution is a result that no one would accept. It would be a decision gone too far, laying bare for all to see what Judge Walker is actually doing in this case: inventing the Constitution for his own ends.

There isn’t a scholar on the planet who could claim with a straight face that the generation that crafted the 14th Amendment would have believed that limiting marriage to heterosexuals violates that amendment.  But then, this fact would not deter Judge Walker and his ilk because they believe (for reasons of power and convenience) that it does not matter what might have been constitutional during any previous era. All that matters is what we can make the Constitution mean in our post-modern world to enact social policies through judges that otherwise would never see the light of day. It is Plato’s philosopher-kings writ large, with judges like Vaughn Walker more than willing to fulfill the esteemed role of leader because in his own mind he truly believes he knows better than the people of California how they should live.

But let us again return to Judge Walker’s fundamental premise: that Prop 8′s limitation of marriage solely to heterosexuals represents an unconstitutional statement of moral superiority for the heterosexual “lifestyle.” In fact, he states that “individuals’ moral views are an insufficient basis upon which to enact a legislative classification.”  Following this logic to its conclusion not only would require the abolition of marriage; it would also require striking down any law that can be said to make a statement of “moral superiority.” The problem with such a notion is, of course, that several of society’s basic laws make statements of moral superiority. Prohibitions on murder degrade serial killers. Laws against stealing disparage con men. Punishing arson burdens those crazed by the flame. Why should law-abiding citizens be allowed to proclaim themselves morally superior to those in society who violate these laws with impunity? Ultimately, if we say, as Judge Walker implies, that the Constitution outlaws all claims of moral superiority, then the entire basis of law is unconstitutional. This would be ironic given that the very idea that laws repugnant to the Constitution must be set aside is based on a claim of moral superiority, i.e., that the law of the Constitution is superior to all other law.

The fact is that to legislate is to discriminate. It is irrational discrimination that is repugnant to the Constitution.  This begs the question of what is “irrational” discrimination? The reason we are allowed to proclaim that murder is a moral failure that should be outlawed is because society at large deems preservation of innocent life a rational goal (with the notable exception of abortion).  Preservation of life is a shared value of our society.  We then must ask what is the basis of our shared values? The obvious answer to this question is morality and religion which have been the basis of societal values for time immemorial.  This does not mean, of course, that legislation enacts the precepts of a particular sect of religion.  It simply means that the shared values of a society are nearly always based on common religious and moral understandings which are then, in turn, reflected in the laws of that society.  The Equal Protection Clause itself embodies a shared value based on moral and religious belief.  If one simply argued from a scientific viewpoint, it could easily be concluded that people are not equal in many ways and distinctions could be made for all sorts of reasons.  Hitler’s Germany attempted to set up a society on exactly such a basis.  Yet, Judge Walker specifically states that “moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” and that such is an impermissible basis for legislation. 

In actuality, what Judge Walker is saying is that to him moral and religious views are not a proper basis for legislation in this instance because he does not like the result.  The distinction is not rational to him, and therefore it must violate the Equal Protection Clause because the Constitution is what he says it is. In other words, Judge Walker is playing his own game of moral superiority while chastising the people of California for doing the same thing.  Somehow his understanding of “equal protection of the laws” is the value that takes priority over the shared religious and moral views of the people.  But abolishing moral superiority as a basis for decision-making for the many undermines it for the rest.  Judge Walker and his supporters will say that his moral superiority is permissible because he is a judge and his view is enshrined in the federal Constitution, but that is simply playing word games.  Equal protection is a means to an end, not an end unto itself. 

And as any lawyer will tell you, your interpretation of whether a law violates equal protection all depends on what level of classification you employ.  For example, Judge Walker is applying the law to the group of persons involved in intimate personal relationships, regardless of whether they are heterosexual or homosexual.  At this level of classification, he perceives that Prop 8 is unconstitutionally preventing a group of people from sharing in the institution of marriage.  But if you lower the level of classification to all homosexual couples and all heterosexual couples and ask whether each group is being treated equally by Prop 8, the answer is that they are.  Naturally, supporters of Judge Walker will note that the same thing could be done for the period when inter-racial marriages were outlawed in some Southern states, i.e., all inter-racial couples were being treated equally under those prohibitions.  Yet this argument avoids the fact that racial discrimination was already separately prohibited by our Constitution.  Moreover, if you return to the classification of all heterosexual couples, it becomes clear that the misogyny laws did not treat them all equal in terms of marriage. 

The point is that it is always possible to find a violation of the concept of “equal protection” depending on how broadly you are willing to draw the group classification.  The real question is whether grouping people in such a fashion makes sense.  The underlying value-laden assumption of Judge Walker’s equal protection ruling is that there is no distinction between heterosexual and homosexual couples.  This is undoubtedly the politically correct assumption, but it isn’t the rational one.  No matter how Judge Walker and supporters of his decision try to spin it, there are unavoidable differences between the two groups that happen to be based on nature, just as there are unavoidable differences between men and women as groups upon which certain distinctions are rationally made.  (Of course, some feminists vehemently dispute the latter assertion just as much as the homosexual lobby inveighs against the former).  All the while, they ignore the fact that their assertion is based upon a moral proposition just as much as the assertion of supporters of heterosexual marriage. 　

In the end, the proposition upon which Judge Walker bases his opinion may be where our society is headed, but I would much more firmly believe that (though still disagree with it) if it was not being foisted upon the public by judges rather than by votes of the people or their representatives.  The decision and what it represents are indeed depressing, but then, what the Psalmist says is worth remembering: “I would have lost heart unless I had believed that I would see the goodness of the Lord in the land of the living.  I will hope in the Lord and be of good courage, and He will strengthen my heart; yes, I will hope in the Lord.”  Psalm 27:13-14.

In legal jargon, the majority reasoned that Hastings had established a limited public forum and as such, its policies merely had to be “reasonable” and “view-point neutral,” which it is.  (How the U.S. Supreme Court conjures the concepts of open, designated, and limited public forums from the sparse language of the Free Speech Clause of the First Amendment is topic for another post on another day).  For the non-lawyer, understand that a “reasonableness” test is highly deferential toward a government policy.  As long as a policy seeks some kind of goal that does not discriminate on its face, the Court will uphold it under this test.  In reality, what the decision means is that universities are permitted to deny official recognition to any student group that discriminates on any basis in membership and officer make-up.    

The second occurrence was a sermon preached at my church on July 4th by a guest speaker who happened to be a professor of religion at Mercer University in Georgia.  Of course, Sunday falling on the 4^th of July  presents an interesting conundrum for churches because churches in America obviously should be thankful for the freedom to practice their faith and hold their services in whatever manner they see fit, a freedom that is a direct by-product of what we celebrate on July 4^th, but churches also must never lose sight of the fact that the main purpose of church is the worship of God, not a country.  Sometimes churches struggle to find the right balance between expressing proper thankfulness and due pride in the freedom this country provides and maintaining a focus on the worship of God.  Even so, I do not think my church is one that is in danger of leaning too far toward the patriotic side of the ledger; indeed, if anything, it seems at times that the church feels almost apologetic in expressing any patriotic feelings whatsoever in a service. 

With that as the background, picture a pompous professor of religion railing against the evils of our Puritan forefathers who decimated the “tolerant” Indians because they refused to convert to the Puritans’ know-it-all version of Christianity and who created this skewed vision of America as a land blessed by God for the promotion of His Word.  It was not really a sermon, but rather a lecture from on high talking down to any ignorant Baptist in the pew who might be so foolish as to think that the government should have anything to do with religion whatsoever.  Mind you, I am not exactly sure which particular Baptists the professor was railing against in our pews given that this church takes an inordinate amount of pride in its independence from just about everything except orthodox Christian beliefs.  Nevertheless, the professor continued to rail against the straw man not present and offered a version of American history in which the Puritans established the most intolerant country on the face of the earth until the Baptists rode in on a white horse and saved the country from such insanity by inventing the concept of freedom of religion. 

There are a myriad of problems I could highlight in both the CLS v. Martinez decision by the U.S. Supreme Court and the “sermon” by the Mercer professor.  The most obvious weakness in the Court’s decision is that while the Court holds that the Hastings policy is reasonable, it fails to explain what purpose the policy actually serves.  One would think that answering this question would be vital to a determination of reasonableness, but instead all the majority says is that “extracurricular programs are, today, an essential parts of the educational process” and that “involvement in student groups is a significant contributor to the breadth and quality of the educational experience.”  Note that this observation merely relates to the existence of student groups in general, not on what basis a particular group deserves to have official recognition from the university.  It is a non-sequester: the fact that student groups are good for the educational experience does not a fortiori mean that a policy prohibiting discrimination promotes the existence of student groups. 

In fact, it is entirely likely that forcing groups to be open to “all comers” actually causes there to be fewer groups on a given campus.  Why?  Simply picture, for example, an extremely liberal university campus.  (I know, extremely hard to do, but play along and just imagine one exists in, say, San Francisco).  Suppose that the vast majority of the students on this hypothetical campus do not like Republicans.  The few Republicans who attend this university decide to form their own student group, a young Republican club.  The student majority does not like it, so several of them join the Republican club—which the few true Republicans cannot prevent because they cannot discriminate based on ideology and still be a recognized student organization.  Having achieved a majority on the Republican club’s board, the liberal students vote to dissolve the club, believing it to be in the university’s best interest because having a Republican group on campus sullies their reputation.  You might think such a scenario is far-fetched, but similar things have happened. 

As for the religion professor’s sermon, it would exhaust me and bore the reader to highlight all that was wrong with his talk.  The most obvious failure was the complete lack of a balanced view of history.  It is true that the Pilgrims and Puritans were “intolerant” at times, even to the point of persecuting those who did not adhere to their version of Christianity.  These two groups hardly had a monopoly on such persecution in America though.  Baptists actually suffered their greatest persecution at the hands of the established Anglican Church in Virginia (but this was conveniently glossed over by the professor in his sermon).  Moreover, it is often forgotten that the Pilgrims and Puritans were doing what they believed was necessary to survive in a harsh new world by maintaining a sense of community.  It is also true that Baptists played a role in the history of religious freedom in this country.  Indeed, James Madison, the author of the First Amendment (to be more accurate, its primary author because his original language was altered a fair amount by the 1st Congress before it was passed and subsequently ratified by the people), once wrote that seeing Baptist ministers in jail for their beliefs (due to the Anglican establishment in Virginia) had a profound impact on forming his belief that religion was a matter of conscience that should not be coerced by government.  But their impact on Madison, Jefferson, and others was by far more visual than it was intellectual, which is to say that Madison, Jefferson, and others did not get their ideas about disestablishment (ending government support for particular church denominations) from the Baptists, and it is absurd to give them credit for such a thing.  Furthermore, it lessens credibility to ignore the fact that the Baptists by a large took the position they did about separating churches from government support because they were a minority sect.  In other words, it was not because they were imaginative, magnanimous forward thinkers that they adopted this vision, but rather for their own survival as a denomination.  As with the Puritans and Pilgrims, survival was a powerful motivator. 

The primary problem with the professor’s sermon, however, was that it regrettably confused the separation of church and state with calling for the separation of religion from government.  The former is a founding principle of American government: the power of government shall not be used to physically or financially coerce particular religious beliefs.  The latter is a grievous mistake that leads to a government without laudable bedrock principles.  It defies the entire history of America to proclaim that a divorce of religion from politics (and therefore government) occurred during the founding of this great republic.  If this were so, the professor’s whole lionization of the Baptist role in fostering America’s concept of religious freedom defeated his own point.  Under his version of history, the Baptists influenced America’s early political leaders to adopt a policy of religious freedom; but if “separation of church and state” means the separation of religion from government, then the Baptists should not have been pushing for any particular government policy.  You cannot have it both ways: either religion should influence politics or it should not.  Baptist politics is not superior to any other in this regard.  But, of course, the reason Baptists lobbied political leaders is precisely because they believed that their religious beliefs–specifically the understanding that true religious belief cannot be coerced–should influence government.  They believed that disestablishment was better for religion and for government.  I certainly agree with that, but it is a value-laden assumption.  To put it another way: the belief that Government should be neutral toward different religious sects is not a neutral belief. 

Here, at last, we get to the thread that binds together the majority opinion in CLS v. Martinez and the religion professor’s sermon: both assume that complete objectivity is possible for government and that diversity should serve as an end unto itself.  In this post-modern age, both the Supreme Court and the Mercer religion professor ought to know better.  There is no such thing as complete objectivity for human beings because we are immersed in values from the moment we are born.  Government is made up of individuals.  It is foolish to expect government to be any more capable of objectivity than are individuals.  Government chooses sides and expresses its biases every day with the policies it formulates and enforces. 

Permitting “all comers” to every campus group is a value-laden policy carrying the unintended consequence of destroying the very end it presumably seeks to achieve.  It means that government has chosen to promote “openness” to the point that no one stands for anything.  If all groups must include everyone, then the groups by their nature have lost the very cohesiveness that made them a group.  The diversity of viewpoints that government presumably seeks to encourage on state-run campuses disappears because no group possesses a definitive viewpoint.  The “melting pot” of ideas then ceases to exist because no coherent ideas emerge to be vocalized.

Likewise, placing religion on the same ground as non-religion in the public square is a value-laden policy that forces government into a dishonest position of neutrality.  The dishonesty is pretending that government need not make a choice between preferring religion or non-religion, but as experience has demonstrated, this is simply not true.  The policy of “impartiality” toward religion results in promoting non-religion because it creates a “naked public square.”  In other words, “neutrality” between the two has actually resulted in a preference for non-religion because advocates of non-religion require the denial of the acknowledgment of religion.  There is no middle ground on this: either religion should be favored and promoted or it should not.  If it is not, then non-religion is favored and promoted and you have an atheistic government.  The fact is that our country and its government were based on certain assumed principles that happened to be derived from Western civilization as a whole and Christianity in particular.  Religion held a preferred place in society: this is why it was listed first in the First Amendment.  Atheists can wish this was not the case and people are free to advocate for a change in our basic principles, but they must acknowledge that it is a shift to a different philosophy.  They do not and cannot seek “neutrality” as an end because it does not exist outside of God himself. 

The foregoing fact, by the way, is the very reason that only God is fit to judge us for eternity.  Only He knows our hearts and where we actually stand.  Only He is capable of rendering pure justice free of the biases and imperfect knowledge that cloud our judgment.  And this fact is why the positions taken by the majority in CLS v. Martinez and people like the Mercer professor anger me: because they elevate government to the position of God and insist they are doing so for our own good.  There is an arrogant assumption of superior knowledge in these positions together with a false proclamation that they merely seek “fairness” for everyone.  Spare us the platitudes and be honest.  Stop pretending that we live in the Enlightenment Age.  Every meaningful choice contains values.  We should wonder why some people will not acknowledge that fact and what it tells us about the values they are promoting.

So it is with this editorial.  Ellis seems to believe that he is revealing some profound truth about “originalism,” pulling the curtain back to show that the Wizard is just a man, when all he really does is demonstrate his own ignorance of originalism.  His ignorance starts with his first broadside in which he calls “original intent” “a bizarre idea.”  One point Ellis probably should have checked before he wrote this screed is that even originalists think “original intent” is bizarre, including the most famous proponents of originalism, Justice Antonin Scalia and Judge Robert Bork.  The difference between “original intent” and “originalism” is much more stark than the terms would seem to indicate.  At the level of constitutional law, original intent is the theory that if one can discern the intent of the person who drafted a particular constitutional provision when he wrote it, you will know what the law actually means.  Originalism, on the other hand, is the theory that the meaning of a legal document can be derived from the sense of the time in which it was enacted.  It does not focus on one person’s thoughts during some moment or other, but rather upon the public understanding of the document when it was enacted.  This is why “originalism” in my view is better termed “original understanding.” 

The task of discerning original intent is fraught with errors because divining what one person thinks on a subject at a particular moment in time is extremely difficult.  Moreover, that person’s views can, and often will, change over time, and the person might–either purposefully or inadvertently–attribute his or her current view to be the same it was when the document was drafted.  Ellis highlights this problem through the person of James Madison, who Ellis informs the reader changed his views on the powers of the federal government later in his life.  Yet, in raising this singular example, Ellis also highlights his misunderstanding of the subject.  Just because Madison changed his views does not mean that an original interpretation of the Constitution is impossible to discern.  Perhaps even more importantly, just because Madison’s views changed does not mean that the Constitution’s meaning changed.  In fact, this is the very evil that originalism is designed to combat: the meaning of a legal document changing just as quickly as a person can change his mind.

The task of discerning the original understanding of the Constitution, though certainly not the easiest thing in the world, is much more readily ascertained than Ellis wishes the reader to know.  It is not the “Immaculate Conception theory of jurisprudence,” as he so ruefully labels it (and in so doing unnecessarily makes his feelings clear about orthodox Christian beliefs).  It has nothing to do with believing that the members of the Constitutional Convention were infallible and everything to do with understanding that judges are not empowered to rewrite the Constitution in their own eyes.  The law is fixed precisely because it is the law and not a whim.  The meaning is based on the understanding of the people at the time of its enactment because that is the only way the text could have a fixed meaning.  This is why originalism holds that the best way to discern the meaning of the Constitution is to study the founding era.  Oddly enough, this happens to be what Ellis purports to do for a living, but if that were truly so, it would be difficult to imagine how someone of such obvious intelligence could write such erroneous drivel as Ellis has done in this column.

The volume of written debates on the Constitution during the founding era is staggering.  In today’s information age, it is also readily available, and the best resource I can point to for this fact is the Liberty Fund’s The Founders’ Constitution.  I would say that Ellis could stand to peruse it, but Ellis’s problem is not a lack of knowing about the founding era debates, but rather in misinterpreting what they mean for originalism.  Because Ellis does not understand what originalism seeks to do, he overlooks the fact that the quantity of debate on the subject of the Constitution in the founding era is actually helpful, not harmful, to the task of originalism.  This is because a debate produces stances on a subject and it also produces a winner and a loser.  Debate has a tendency to clarify, not cloud, an issue.  It is true, for example, that those living in the founding era debated the powers of the federal government versus the powers of state governments.  It is not true, however,  that there was no resolution to the debate.  The Constitution readily states the resolution: the federal government is supreme in areas where the Constitution grants power to the federal government, and the states are supreme where the Constitution is silent as to federal power.

If you think about it, attempting to discern a public understanding on a subject is not very difficult.  In fact, we do it in this country all the time with elections and polls.  What do the people of Arizona think should be done about illegal immigration?  There is a sharp debate on how the issue should be handled, but Arizonans have spoken with the State’s new law on the subject.  Likewise, one would be hard-pressed to argue that the public sense was steadfastly in favor of the health care “reform” bill that passed Congress.  Members of Congress knew it was a tough vote precisely because the majority of the public was against it and everyone knew it.  So it is with the Constitution: because so much was written during the founding era, in many cases it is not difficult to discern the public understanding of a particular constitutional provision.  This is not to say that every provision is easily discerned, but more often than not controversy surrounds the interpretation of a particular provision not because we do not know what it was supposed to mean when it was enacted, but rather because some people today do not like that interpretation. 

What I find comical about Ellis’s attack on originalism is that anyone who has even a rudimentary understanding of legal interpretation grasps that the originalist method of interpretation is the unquestioned method employed in other areas of the law.  For example, when a will is probated, it is understood that the will must be interpreted according to the intent of the person who drafted it at the time it was executed.  In criminal law, the jury is charged with discerning the intent of the defendant at the time the crime was committed, not what the defendant feels, thinks, or believes after-the-fact.  When lawyers argue about the meaning of a statute, they always reference the definition of terms and understanding of the statute as a whole during the period when the statute was enacted.  This is almost too elementary to be mentioned, save that when it comes to discussing constitutional interpretation, some people all of the sudden decide that a host of other methods of interpretation are available.  And (not coincidentally, I would suggest) those other methods of interpretation invariably wind up providing the exact result in the situation at issue that the person using the unorthodox interpretation prefers.

I do not jest.  I dare anyone to find one opinion involving constitutional interpretation in the last 20 years from the esteemed and about to be retired Justice John Paul Stevens, for example, in which he has come to a conclusion that does not align exactly with his politics on the issue.  I will save you the time and tell you that there are none because the expansive method of constitutional interpretation Justice Stevens employs allows him to do precisely what he prefers as opposed to what the law might demand.  You might dare me to find an opinion involving constitutional interpretation from an originalist judge that runs contrary to his own thinking, but that task is far too easy.  One example is Justice Thomas’s dissenting opinion in Lawrence v. Texas, the case concerning the state law on sodomy.  Justice Thomas called it an “uncommonly silly” law, yet he dissenting from the majority’s decision to strike down the law because he knew that under an originalist interpretation of the Constitution there was no way that the law could be said to be unconstitutional because such laws had existed in this country for 200 years.  Though this is probably the most famous example, there are several others from Justices Thomas and Scalia that could be cited. 

A better question than Mr. Ellis’s query about why we pay attention to originalism is why do we pay attention to historians like Mr. Ellis when it comes to issues of legal interpretation?  Mr. Ellis needs to stay in his field, and it is not law.  A final case in point would be his citation of Thomas Jefferson as somehow the sage who settles how the Constitution should be interpreted.  This is a curious intellectual choice by Ellis because, as he surely knows, Jefferson was not present at the Constitutional Convention.  He had nothing to do with the drafting, debates on, or passage of the Constitution (or, for that matter, the Bill of Rights).  Moreover, given that Mr. Ellis just spent half his column making fun of reverence for the Founders, I am not entirely sure why the reader should care by the end of the column what Jefferson had to say about anything.  And then there is the fact–as Mr. Ellis knows better than most because he wrote a biography on Jefferson titled “American Sphinx“–one can find a quote from Jefferson saying just about anything on a given subject at some point in his life.  Jefferson was notorious for harboring contradictory positions on everything from race to religion to the powers of the Presidency (on this last point see his Kentucky Resolutions espousing robust states rights versus his sanction of the Louisiana Purchase when he was President).  Nevertheless, I will take Mr. Ellis’s word for it and echo the sentiment that we should listen to Thomas Jefferson, who wrote the following:

“[T]he true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law.”  (1808 — Letter to Albert Gallatin)

Or how about this:

“Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”  (1803 — Letter to Wilson Nicholas)

And this:

“The Constitution on which our Union rests, shall be administered by me [as President] according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption– a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible.”  (1801 — Letter to Mesrs. Eddy, Russel, Thurber, Wheaton and Smith)

Then there is perhaps my favorite:

“On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”  (1823 — Letter to William Johnson)

It would seem that Mr. Jefferson was an originalist.  But then, what did Thomas Jefferson know; he was no Joseph Ellis.

Then Arizona upped the ante by passing what is, by far, the toughest immigration regulation legislation in the nation.  Other southern states quickly signaled a willingness to consider similar laws.  Latino groups just as swiftly moved to file lawsuits against the Arizona measure (although any suit at this point would have to challenge the law’s constitutionality on its face rather than as applied to any single individual because it does not actually become the law of Arizona for 90 days, and facial challenges are much more difficult to win than “as applied” challenges).  And President Obama naturally decided to add in his two cents on the matter (because he assumes everyone cares what he thinks), and not surprisingly he roundly condemned the law. 

The details of the law itself are severe.  It requires police to stop any individual whom they have a “reasonable suspicion” of being illegal and demanding to see documentation that they are, in fact, present in this country legally.  If they have no such documentation, they will be detained and potentially deported if they cannot provide proof of their legal status.  The law also makes it a crime for immigrants not to carry documentation of their immigration status.

I understand why Arizona acted.  Illegal immigration is unquestionably out of control in Arizona, with an estimated 45,000 illegal immigrants living in the State and therefore using State resources.  And the federal government has done absolutely nothing about what is quintessentially a federal issue.  Sometimes it takes strong medicine to get Congress’s attention, and this may be just what the doctor ordered (although I don’t see an immigration bill passing Congress in an election year; the issue is far too polarizing to be taken on right after the passage of health care). 

Even so, I must observe that there are serious constitutional problems with this law.  As I just noted, immigration is a classic and properly federal issue.  It concerns the control and defense of the nation’s borders and it is an area that cries out for a uniform policy.  Moreover, giving the police the power to detain someone simply on the reasonable suspicion that they might appear to be illegal raises serious concerns of discrimination.  One of the articles I linked to above notes that other countries for years have required foreign nationals to carry documentation, but not in America, and for good reason.  Liberty is supposed to be this country’s calling card, and sometimes exacting enforcement of the law must be sacrificed for the sake of ensuring liberty.

Of course, candidates for office are nothing if not opportunistic, so they have also jumped on the anti-immigrant bandwagon, sensing a cheap way to ride a wave to victory.  Notable among these opportunists to me is Tim James, who is running for the Republican nomination for governor in my adopted home state of Alabama.  He is currently running a television ad in which he proclaims that if he is elected governor he will require driver’s license tests to be printed only in English.  In the line of the ad that is getting the most attention, James says: “This is Alabama.  We speak English.  If you want to live here, learn it.”

James has been taking withering criticism for the ad–mostly from the Left–but honestly most of the criticism is well-deserved.  First, the ad is clear political pandering.  James has never been in the forefront of immigration issues before, but all of the sudden the issue explodes due to Arizona’s action, and lo and behold, a candidate who had been mired in distant third place in the primary battle for the Republican nomination re-raises the issue of English-only drivers license tests in the State. 

I say “re-raises” because this issue was hot in Alabama before.  In fact, our Supreme Court issued a major decision on it 3 years ago.  In Cole v. Riley, 989 So. 2d 1001 (Ala. 2007), a pubic interest group challenged under the Alabama State Constitution the legality of the State administering driver’s license tests in multiple languages.  The basis for the challenge was one of they myriad of amendments to the Alabama Constitution.  This one states that English is the “official language” of Alabama, and that “officials of the state of Alabama shall take all steps necessary to insure that the role of English as the common language of the state of Alabama is preserved and enhanced.”  In a contentious decision, the Alabama Supreme Court ruled that providing the driver’s license exam in multiple languages did not violate this amendment.  Both the majority and the dissent talked about a plain reading of the amendment, but the truth is that the debate was contentious because some people, even on the Court, feel as though Alabama is being overrun by illegal immigrants.  (Incidentally, I disagree with a certain dissent in that case). 

In any event, the point in relation to James is that emotions were high in Alabama when the case was decided, but the furor has died down since then.  But James has decided to revive it for the political expediency of igniting his campaign for governor.  That isn’t leadership; it’s pandering.  And I say this without a hint of bias.  I used to work for one of the other Republican candidates for governor, but the truth is that I would wager that he agrees with James on this issue.  The difference is that he did not raise it to score cheap political points. 

Moreover, the ad is simply poor television.  My first reaction to the line that in Alabama we speak English is: “Really?”  I remember that when I first moved here from up north it took a while to understand some folks down here.  From “misremember” to “might could,” it can’t be denied that Alabamians speak something other than the King’s English.  But more to my point is James’s delivery in the ad.  I don’t know who told him to make these long pauses where he looks down and then finishes a thought, but it makes him look clueless, not contemplative. 

And James does his anti-intellectual image no favors by espousing a position that is flat wrong.  Essentially every point that James uses to argue for his position is untrue.  People can drive without knowing English.  If you think about it, most driving direction is based on symbols and signals of one kind or other, not words.  There is no evidence that making the driver’s license test available in multiple languages has made road travel in Alabama more dangerous.  (What makes driving dangerous here is that most people do not drive anywhere close to the legal speed limit).  It would not save a lot of money to print the test only in English; in fact, the State would lose federal transportation dollars which are used to repair the State’s consistently poor roads.  Most importantly, how is such a change welcoming to legal immigrants?

If someone comes to this country legally, should they be expected not to drive until they learn English?  As if coming to a new country, learning new ways, and starting from nothing to make a living is not enough, James apparently thinks we need to make our state more unwelcoming to new Americans by making these immigrants learn English before they can drive.  Most jobs necessitate using a car to get to work, yet we would be depriving them of that tool until they learned English.  I do not see what purpose that serves.  It is a given that in order to climb the income ladder in our country someone has to learn English.  People who do not learn it remain in low-income manual labor positions.  Everyone knows this, so why is an English-only driver’s test a necessity? 

It is not, but James is not pandering to the rational side of this debate in running this ad.  He is hitching his wagon to fear about illegal immigrants.  As I stated above, I understand and agree with the need to control the flow of illegal immigration, but irrational fear about the immigrants themselves is unwarranted.  I recently had a new roof put on my house, and the crew that did all of the work (as is the case most of the time in the roofing business) was entirely Mexican-American, only one of them, so far as I could tell, spoke English, and I honestly doubt that all of them were legal.  They worked quite hard and did the job in one day. And I have a nice new roof for a competitive (though certainly not cut-rate) price.   Those men are not detracting from our society; they are simply trying to make enough of a living to feed their families.  The only one who is able to do more than that was the head of the crew, who spoke English and owns another business.  That cannot go unnoticed by the other crew members, and if they want to succeed like that, they will learn English too.  It will not be because the driver’s test is written only in English. 

It seems to me that Tim James who has failed a test here: the test of leadership and judgment.

The reactions to this slightest of disagreements was swift and immediate.  Predictably, the Left feigned outrage that Justice Alito would not just sit there like a bump on a log while President Obama lied about the effect of the Court’s ruling, while they weakly defended the President’s statement.  Slightly less predictable was the fact that some on the Right claimed to be outraged that the President would use the State of the Union Address to upbraid the U.S. Supreme Court. 

Fast-forward a few months later, and Chief Justice John Roberts was giving a speech at the University of Alabama School of Law in Tuscaloosa, just down the road from my humble abode.  In passing, the Chief Justice remarked that he found the particular scene described above at the State of the Union “very troubling,” and that the State of the Union has become “a political pep rally.”  Given these facts, he questioned the point of the Court attending the annual address.

The press breathlessly reported that Roberts was continuing the fight with the White House.  And the White House took the opportunity to respond and bash the Court’s decision again–though noticeably absent this time around was any claim that the ruling truly opened the door for foreign corporate donations in U.S. elections. 

Given the poor reactions and reporting on these matters, it is worthwhile to reflect on each of them in a deeper fashion.  First, as the White House’s reaction to Roberts’ comment implicitly conceded, President Obama was indeed misleading the public with his summary of Citizens United.  There is simply no way around that.  In the simplest terms, the Court did not legalize foreign donations to U.S. political campaigns.  Obama, a former (albeit part-time) law professor, knows this, and yet he lied in order to score a cheap political point against a body that he knew could not directly answer his criticism. … At least, he thought they would not, but Alito simply could not hide his reaction.  Such is the irony of the situation.  Obama believed he would get off a zinger and be able to move on, but the unusualness of a Justice reacting to something in the President’s State of the Union Address drew attention to his fib. 

Second, contrary to what some may think, the Justices on the Supreme Court are human, and while they do an admirable job practicing their poker faces for the hour or more (depending on how absurdly long-winded the President might be) they must endure the State of the Union Address, it should not be all that shocking that a Justice might let a reaction slip once.  This is especially understandable when the reaction is to an important decision the Court just released. 

This fact, no doubt, is partly what C.J. Roberts had in mind when he mentioned the “troubling” scene.  Roberts was not–some press reports to the contrary notwithstanding–complaining about the fact that President Obama had criticized the Court’s decision.  Indeed, Roberts noted that anyone has the freedom to criticize the Court and that people in some positions are supposed to do so.  Despite what some liberals may believe, Roberts is not so arrogant as to believe that the rulings of the Court are above all reproach.  (Now, I could name some past Supreme Court justices–one by the name of O’Connor springs immediately to mind–who actually did feel that way, but that is a commentary for another time). 

No, C.J. Roberts was simply observing that the State of the Union Address no longer serves the useful purpose it once had, and thus he wondered what function it serves for the members of the Court to attend it.  The comment had nothing to do with the fact that the President is a Democrat who has openly stated that he would not have appointed Justice Thomas, he voted against Justice Alito, and pretty much cannot stand the fact that conservatives now (for the most part) control the Court.  It had everything to do with the fact that Court is supposed to stay out of politics, and yet the State of the Union has become nothing more than a glorified political pep rally in which a President receives a ridiculous number of standing ovations from the members of the Party he leads. 

The State of the Union did not always used to be this way.  It began as a necessity.  In the early days of the new federal government, the President and the members of Congress rarely communicated on the business of government.  This may seem odd today, but in those days the officers of government were much more concerned with carrying out the day-to-day activities of their offices than lobbying for votes on the latest measure. 

It also must be remembered that the flow of information and ease of communication back then was nowhere close to what it is today.  Today, everyone already knows just about everything the President is going to say in his State of the Union well before he gives the speech.  In fact, I cannot remember the last time I learned something new during one of these addresses.  The only mystery comes in how a President choses to word his pleas and prioritize the issues, not in the information imparted about the “State of the Union.” Think about it: the only information a President ever utters during the speech which pertains to the actual state of the country is in the perfunctory first line of the speech that “the State of the Union is strong”–which he says even if it is not true.   

In the early years, Congress truly needed to be informed concerning how things were working both within the new government and in the country at large.  Hence, both George Washington and John Adams gave their State of the Union Addresses in person, and they provided useful information about the state of affairs.  By the time Thomas Jefferson had been elected President in 1800, things were starting to settle into somewhat of a routine, and so Jefferson elected to deliver his State of the Union addresses via letter rather than in person.  Mind you, they still contained substantive information; it was just that the President actually being there to deliver it seemed pointless.

This tradition continued until Woodrow Wilson decided it was time to return to live speaking for the affair.  Then President Franklin Roosevelt changed how the game was played by starting to turn the State of the Union into the useless farce it is today.  Given what it has become, it is difficult to blame Roberts for wondering aloud whether the Justices should spend their time attending. 

The conservative reaction to the President’s attack on the Court is just as interesting, however.  Some actually professed outrage that the President would attack the Court at all in the State of the Union Address.  I must part company with these talking heads because, as the immediate link above and others have rightly pointed out, there is a grand tradition in this country of Presidents criticizing U.S. Supreme Court decisions.  It is a tradition that, in fact, goes all the way back to Thomas Jefferson when he lambasted the great Chief Justice John Marshall for several decisions, including the now-famous Marbury v. Madison, which solidified the Court’s power of judicial review (i.e., the power of the Court to declare acts of Congress and actions of the Executive unconstitutional).  Jefferson produced some of his greatest lines while engaged in artful complaining about Marshall.  Abraham Lincoln notably tore apart the Supreme Court for its Dred Scott travesty (albeit first before he became President), and the country was improved by Lincoln’s aspersions.  Perhaps most memorably for conservatives, Ronald Reagan upbraided the Supreme Court for Roe v. Wade. 

So here’s a news flash for those conservatives that don’t seem to understand our constitutional system: the President is supposed to check the power of the Supreme Court–just as he is supposed to check the power of Congress through the veto and Congress is supposed to check the Court through its advice and consent on judicial nominations.  Obviously I do not agree with the substance of President Obama’s criticism, but his constitutional authority to do so should not be questioned and, in fact, should be applauded.  The Court needs to know that it is not immune from criticism because short of the almost-never-used tool of impeachment, it is the only realistic check upon the Court available in today’s political climate. 

In short, President Obama is allowed to question the reasoning of the Supreme Court, and Chief Justice Roberts is allowed to question what the State of the Union Address has become.  It is a poor commentary on the nation’s knowledge of political history and the Constitution that this should even need to be explained.

The Quakers were one such dissenting group, and perhaps the most outspoken among them was Penn.  Penn decided to challenge the Coventicle Act by holding an assembly of Quakers outside Grace Street Church in London.  As soon as he began to preach to the assembly, Penn was arrested and charged with disturbing the peace by fomenting an unlawful and tumultuous assembly.  He was brought to trial on September 1st along with a fellow Quaker who attended the assembly, William Mead. 

At the outset of the trial, when asked whether he was guilty or not guilty of the charge, Penn proclaimed:

We confess ourselves to be so far from recanting, or declining to vindicate the assembling of ourselves, to preach, pray, or worship the eternal, holy, just God, that we declare to all the world that we do believe it to be our indispensable duty to meet incessantly upon so good an account; nor shall all the powers on earth be able to divert us from reverencing and adoring our God, who made us. 

Penn then demanded that the court cite the law upon which the indictment was based and which he was alleged to have violated.  The prosecution declined to do so because it feared that the Coventicle Act might be overturned.  Instead, it blandly replied that the indictment was based “upon the Common-Law,” to which Penn responded, “It is too general and imperfect an answer to say it is the Common-Law, unless we knew both where and what it is; for where there is no law, there is no transgression; and the law which is not in being, is so far from being Common, that it is not law at all.”  This response so infuriated the court that the judges ordered Penn removed from the courtroom while testimony was heard against him.  Before being removed, Penn observed:

Is this justice, or true judgment?  Must I therefore be taken away because I plead for the Fundamental Laws of England?  However, this I leave upon your consciences, who are the jury, (and my sole judges) that if these ancient Fundamental Laws, which relate to Liberty and Property, (and are not limited to particular perswasions [sic] in matters of religion) must not be indispensably maintained and observed, who can say he that right to the coat upon his back?  Certainly our liberties are openly invaded . . . . 

Penn and Mead were removed from the courtroom and the jury was charged with coming to a verdict.  Upon returning to the courtroom and being asked for the verdict, the jury foreman informed the court that they found Penn guilty of speaking at the assembly, but they refused to say it was an unlawful assembly.  This result, to say the least, displeased the court, which told the jury that “you shall not be dismist [sic] till we have a verdict that the Court will accept; and you shall be lock’d up, without meat, drink, fire, and tobacco; You shall not think thus to abuse the Court; we will have a verdict by the help of God, or you shall starve for it.”  Despite the court’s threat, the jury held firm to its verdict. 

True to its word, the court kept the jury overnight without food, water, or even access to a bathroom.  The next morning, the court again asked for the jury’s verdict, and again the jury refused to find Penn guilty of inciting an unlawful assembly.  When asked to give an account of his verdict, juror Edward Bushell replied, “I have done according to my conscience.”  Penn asked the court to record the verdict, but the court stated that it was not a proper verdict, to which Penn acerbically replied, “If ‘not guilty’ be not a verdict, then you make of the jury and Magna Charta but a meer nose of wax.”  The court ignored Penn and asked the jury again for its verdict and received the same reply it had previously given. 

When the court declined the verdict again and threatened to hold the jury for another night, Penn asked: “What hope is there of ever having justice done, when juries are threatened, and their verdicts rejected?”  His pointed question fell upon deaf ears.  The court held the jury for another night without food, water, or ordinary accommodations in hopes of persuading them to change their minds, but to no avail.  The next morning the jury rendered a verdict of “not guilty” as to both Penn and Mead.

Realizing that sending the jury back for more deliberations would be a waste of time, the court stated: “Gentlemen, you have followed your own judgments and opinions, rather than the good and wholsome advice which was given you; God keep my Life out of your Hands; but . . . this Court fines you forty Mark a man; and imprisonment till paid.”  After fining the jury, the court also fined Penn for “contempt of court” and ordered Penn and Mead be sent to prison—for wearing hats in the courtroom.  (Penn and Mead had taken off their hats when they first entered the courtroom, but they had been ordered to put them back on by the judge). 

The jurors were sent to Newgate prison where they endured deplorable conditions.  Juror Edward Bushell filed for a writ of Habeas Corpus contending that he had been wrongfully imprisoned.  The Court of Common Pleas agreed and issued the writ, stating that the trial court had been wrong to coerce the jury. 

Penn’s trial constituted the first publicized case of jury nullification: when the jury renders a verdict in spite of the law in order to send a message.  In this case, the jury disapproved of the Coventicle Act and of the court’s treatment of Mead and Penn.  Together, Penn’s trial and the Bushell case established the principle of jury independence as well as the understanding that juries are competent to decide both the facts and the law of the case.  The occasion for these legal landmarks never would have occurred but for William Penn’s stubborn willingness to stand up for his rights—especially the right of religious freedom. 

First, I am grateful that Justice Thomas has a jurisprudential standard to which he is held.  On a purely philsophical level, it is not possible to assail any of the liberal justices on the Supreme Court based on a jurisprudential standard they purport to uphold because they do not have a standard other than their own preferences.  Think about it: Do you hear any discussion of a liberal theory of jurisprudence (other than Justice Breyer’s absurd “exercise of legal judgment” which is, again, just whatever the judge thinks)?  You don’t because they have none; they are intellectually bankrupt.  Even if a liberal law professor wanted to critique the reasoning of, say, a Justice Ginsburg opinion, there would be no intellectual way for him or her to do so because she has no baseline to which you can compare her reasoning.  It’s anything goes, hence the liberality in their results.

This point leads to my second one, which is that there is a growing sentiment among liberals that they should try to co-opt originalism from conservatives—claiming that the Founders actually thought the way liberals do.  I find this amusing because (a) liberals have been attacking the supposed silliness of originalism for 20 years and (b) the very idea of originalism undermines liberal thinking.  On point (a), it is ironic, to say the least, that originalism all the sudden becomes legitimate when liberals decide they want to try and use it.  The only reason they want to do this is because they believe that the rhetoric of originalism has become a powerful political tool.  If there is a standard for liberals it is that: political utility.  They think Scalia, Thomas, the Federalist Society, etc. have made political inroads because originalism sounds scholarly.  Because it has worked to a degree on the political level, liberals want to do what Bill Clinton was the master of doing: steal a good idea by using your opponent’s terminology to arrive at your own conclusions. 

The fact that they are only doing this for political gain and not some actual reverence for the Founders goes to point (b): liberalism is not compatible with originalism.  This is an inescapable fact: by definition liberals believe in progressive thinking, the idea that each generation is smarter than the previous one and improves society by departing from old social mores.  Originalism holds that the proper meaning of the Constitution is that which it meant when it was adopted by the people in 1789.  In a very real sense, it is a static concept that does not make room for the “evolving standards” by which liberals justify their thinking and behavior.  There is no reason to care about the founding generation’s view of the Constitution if we know better than they do how life should be lived and government should operate, which is precisely what liberals believe.  So their adoption of originalism is a facade made for Machiavelian purposes.  Even so, I am reminded of the famous line: imitation is the sincerest form of flattery.