by Jeff Schneider
6/11/21
The battle over the Supreme Court nomination of Amy Coney Barrett in October 2020 was extremely contentious because it was based on opposing interpretations of constitutional law in the context of a political upheaval not seen since the 1960s and economic disasters not seen since the Great Depression. The Republicans have defended the methods of original or textual interpretation of the Constitution while the Democrats have tried to plead for going past the literal words of the document in order to accommodate changes in society since 1787. Adding the social, economic and political conditions that have arisen because of the Covid-19 pandemic and racial disparities that have finally become apparent to large majorities in the country since the murders of Trayvon Martin and George Floyd, the stakes in economics and racial justice are becoming higher and higher. In this essay I will first consider the crucial questions of original and literal interpretations of the Constitution in the era of the founding and briefly consider “court-packing” in the context of the so-called “switch in time in the middle of the 1930s.” The conditions of the pandemic and the current Supreme Court cases including the coming decisions on the Affordable Care Act and the possibility of a new attempt to “pack the court” will be illuminated by the history of the New Deal era decisions in the 1930s. Then we will briefly consider the so-called “super-precedent” of the Brown vs. Board of Education argument all in light of Barrett's testimony during her confirmation hearing.
Amy Coney Barrett, the newest conservative on the Supreme Court, is an originalist who follows the philosophy of Antonin Scalia, her mentor. The methods of originalism and textualism are illogical when you consider the changes in American social conditions and thought since 1787, but as I will argue in this essay they are also ahistorical. These two theories for the interpretation of the Constitution put forward by conservatives on the Supreme Court in 2021 are a clear danger to the recovery of our economy and any attempt to provide justice and equality for minorities, the poor and the workers in our country. Will the originalist and literalist methods stand up to the plain words of the decisions in the 1930s or 1950s?
I
First, let us dispense with the idea that the Constitution can justifiably be construed using “original” or “textual” interpretation. The founding fathers disagreed on what the Constitution said in 1787 and James Madison, who many have called “the father” of the document itself, changed his mind about what the document meant fundamentally a number of times. There were votes at the Constitutional Convention: The delegates argued for months over the structure and meaning of the government they were creating. Some of the delegates left the Convention because they disagreed or like Patrick Henry did not participate because they refused to support a new document replacing the state-based Articles of Confederation. When the 1787 Convention adopted the Constitution, there was no Bill of Rights, which famously created a fight over the powers of the new government.
In the Articles of Confederation, our first frame of government, based on the structure of the Continental Congress there were 13 votes, one for each state. There was no executive or judiciary only a congress with an executive committee to run the government when congress was not in session. The Constitution created a much stronger and more complex government than the Articles of Confederation had been. In addition, the government proposed by the Convention, supported by James Madison and Alexander Hamilton, was a federal government with a strong center that would dominate the formerly “sovereign” states within certain limits. When the document went to the conventions in the states for ratification, the farmers, the majority of our predominantly rural country, objected to the strong central government. As a result, Madison ran into serious obstacles getting the Constitution ratified by the conventions in New York and Virginia, two of the largest states by population and economic power.
As high school students learn, one of the deals that Madison had to make in order to persuade the farmers of New York and Virginia was to promise a bill of rights which would protect the people and the states from being overwhelmed by the central government. Madison had opposed a bill of rights because he believed that the Constitution would protect the rights of individuals and states with its strong the central government. He said in a letter to Jefferson in October 1788, “ (T)he rights in question are reserved by the manner in which the federal powers are granted.” However, he was willing to supply a bill of rights as amendments to the Constitution chiefly because well into 1788 nine states had ratified the Constitution and four had not, including New York and Virginia. The New York convention proposed a long list of amendments including a bill of rights. Patrick Henry of Virginia adamantly opposed the Constitution, and Madison was concerned that North Carolina and Virginia would both be swayed by Henry's opposition: He had been attempting to gather support for a new national convention. By the middle of June 1788 North Carolina and Rhode Island were the only hold outs because New York and Virginia had ratified on the condition that a bill of rights would be added after the new government went into effect.
Accordingly, Madison wrote a series of amendments, and engineered the passage of 10 in 1791. So our Bill of Rights, was the first big difference that Madison himself made in the structure of the Constitution. The amendments made the rights of individuals and the states more explicit such as free speech or the right to trial by jury or broader as in the 9th and 10th amendments, which did not specify rights left to the people or to the states and the people if not enumerated in the original document.
II
Hamilton, who favored a far more powerful central government than Madison, became Secretary of the Treasury in George Washington's first administration. He wrote a bill passed in 1791 to incorporate a national bank that would centralize the economy. The bill was signed by the president over the objections of Thomas Jefferson whose argument, was based on the plain words of the Constitution, He used a legal theory later developed by Antonin Scalia, and supported by Amy Coney Barrett. Madison agreed with Jefferson, who wrote the critique of the bank at Washington's request. But while Jefferson's argument was strictly constitutional, Madison also opposed the bank since it would favor the rich.
All of the participants in this debate were founding fathers. They disagreed about what the fundamental law meant, and an argument about economic power of the “few” (an 18th century term) had entered into the debate. Indeed Hamilton believed the opposite: He wanted to tie the rich to the government by having them invest in the bank in order to preserve it and guarantee the stability of the new government.
Here is clause 18 from Article I Section 8 of the Constitution on which Jefferson based his argument:
“Congress has the power: …
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
Jefferson's strict interpretation of the Constitution lost to Hamilton's loose or broad interpretation of this “elastic”or “necessary and proper” clause. It is significant that the disagreement between Hamilton and Jefferson was not about which section to use to argue for or against the Bank of the United States; instead they had different interpretations of the meanings of the words “necessary” and “proper.” It was a real disagreement over the meanings of the same words. The “original” words had different meanings according to Hamilton and Jefferson. They were contemporaries, so their disagreement was not caused by a 234 year gap of experience and understanding. The supposed iron-clad, even Euclidian, theorem invoked by Antonin Scalia falls into confusion here. Original? Can there be two? It was not clarifying, but it is therefore ahistorical and lacing the interpretation “up straitly,” in Jefferson's words, did not convince Hamilton.
On the one hand, Jefferson argued that the new national bank was not “necessary” because there were state banks, and not “proper” because the word “bank” was not in Article I, Section 8 of the Constitution. He saw a danger in allowing the clause to expand the powers of Congress beyond those plain words and could see no limit to the expansion. On the other hand, Hamilton argued that the bank was necessary because it was a “convenient” corporation for the federal government to regulate interstate and foreign trade and the currency, borrow money and pay debt. All of these functions were listed in the “foregoing powers,” which were among clauses 1-17 enumerated in Section 8. It was “proper” because the Constitution did not specifically exclude a bank. The debate had been joined. President Washington, the fourth founding father in this dispute, sided with Hamilton, and signed the bill into law.
There can logically be no "original" interpretation of the Constitution, since the writers of the document changed their minds concerning its meaning even before our fundamental law was ratified and then disagreed over how to interpret the text of clause 18.
For our purposes it does not matter who was correct. That they disagreed is the key to understanding the inherent problems with literal and original interpretations of the Constitution. This disagreement was one of the causes of the later formation of the first two political parties: the Federalists and the Democratic-Republicans.
It is also interesting that the Federalists who supported the Constitution in 1787 included Washington, Hamilton and Madison, but in 1793 Hamilton was still a Federalist, believing in a strong central government, whereas Madison had changed his mind, now believing that a strong central government was a danger to the liberties of the people and the power of of the states. The politics of the Democratic-Republicans (Madison's party) were nearly identical to views of the farmers who opposed the Constitution in 1787, the Anti-Federalists. Washington did not join the Federalist Party when it formed around the same time as the Democratic-Republicans, but he consistently agreed with Hamilton and John Adams who continued to call themselves Federalists. The Federalist Society of today is a “state rights” organization that opposes a strong central government. They should actually be called the Anti-Federalist Society in agreement with Madison from 1793, not 1787.
III
An additional question concerning Madison's political history is directly relevant to the question of originalism and literal interpretation. The Bank of the United States (BUS) was chartered for 20 years until 1811, and therefore could not stabilize the economy during the War of 1812. Congress passed a new bank bill in 1815, which President Madison vetoed, because he did not think that it could adequately safeguard the currency or provide more “durable loans” for the public. However, in his veto message he did say that he would “waive” the question of the constitutionality of the bank because in his “judgment” there were “repeated recognitions under varied circumstances of the validity” of the previous bank and therefore “a concurrence of the general will of the nation” that the bank was a valuable institution that aided the smooth running of the economy. He vetoed the bill because it did not protect the currency sufficiently.
Later, in his 8th Annual Message of December 3, 1816, in direct contradiction to Jefferson's argument opposing the 1791 BUS, Madison stated: “The Constitution has intrusted (sic) Congress exclusively with the powers of creating and regulating the currency … and the measures which were taken in the last session (to incorporate a new bank) give every promise of success. The Bank of the United States in a new bill has been organized under auspices the most favorable and can not fail to be an important auxilliary to those measures.” Madison nearly quoted Hamilton from 1791 in this praise of the 1816 bank. He changed his mind. May we consider that originalism?
It is clear in all these instances that it was not a new interpretation of the original words of the Constitution, but it was Madison's understanding of the Constitution and a rejection of originalism that gave him “permission” to change his mind about the role of the fundamental law. The will of the people's representatives in the New York and Virginia Conventions and the years of success of the BUS that convinced him to “waive” constitutional considerations. Madison was comfortable with changing his mind on the bank, but would have preferred that the Constitution not have the Bill of Rights. The Constitution grew.
IV
In the October 2020 confirmation hearing of Amy Coney Barrett the Democratic Senators confronted then Judge Barrett with questions about the severe consequences of eliminating the Affordable Care Act on which millions of children and adults depend. They attempted to force her to answer whether it is wise or morally justified to maintain a textual interpretation of the Constitution when social, political or economic considerations that are not addressed in the Constitution are foremost in the minds of the majority of the population. Bluntly put: Is it proper to consider questions in constitutional cases that do not have a literal referent in the Constitution of 1787?
Here is an example from the hearing on Day 2 on the constitutionality of the Affordable Care Act (ACA) . The quotation is long, but instructive.
“Senator Amy Klobuchar questioned Judge Barrett:
Amy Klobuchar: (03:45:47)
Did you say that, that (Justice Roberts) pushed the ACA beyond its plausible meaning to (save) the statute?...
Judge Amy Coney Barrett: (03:46:34)
What I said with respect to NFIB (National Federation of Independent Business) versus Sebelius is that the interpretation that the majority adopted, construing the mandate to be a tax rather than a penalty was not the most natural reading of the statute.
Amy Klobuchar: (03:46:49)
But it was still the reading that justice Robert got to. Now, you also criticized, another case (King v Burwell) where the court ruled in favor of the health law..... And you acknowledge that the result of people being able to keep their subsidies under the Affordable Care Act would help millions of Americans. Yet you praise the dissent by (J)ustice Scalia, saying the (he) had “the better of the legal argument.” Is that correct?
Judge Amy Coney Barrett: (03:47:24)
I did say that, yes.
Amy Klobuchar: (03:47:26)
Okay. So then would you have ruled the same way and voted with (J)ustice Scalia?
Judge Amy Coney Barrett: (03:47:32)
Well, Senator Klobuchar, ,,, Now, having been a judge for three years, I can say, “I appreciate greatly the distinctions between academic writing or academic speaking and judicial decision-making.” ...You’re not constrained by stare decisis. You don’t have real parties in front of you consulting with litigants, consulting with your clerks.” It’s just a different process.
Amy Klobuchar: (03:48:26)
I view that one so interestingly, because you were commenting on the public policy result. Which you and my colleagues on the Republican side have said that it shouldn’t be about public policy and you said, “okay, that’s okay.” But then you were really clear on your legal outcome, in terms of your view of whose side you were on. You were on Scalia’s side.... Which would have kicked millions of people off of their health care ...I mean, I’m looking at people in my state that will deal with this if the Affordable Care Act is struck down.
Amy Klobuchar: (03:49:17)
Elijah from St. Paul who was born with cerebral palsy. Because of the affordable care act, he is now 16 and is a proud Boy Scout. Casey, whose brother lives in Alexandria, he (has) chronic kidney failure and he needs a transplant. Without the ACA that’d be that. Or Burnett from the suburbs of St. Paul, whose daughter has multiple sclerosis, depends on benefits under the ACA....My point is that these are real world situations. And so I get that you’re not saying how you’d rule on these cases. What does that leave us with here to try to figure out what kind of judge you would be?
Amy Klobuchar: (03:50:15)
You criticized the decision written by (J)ustice Roberts upholding the Affordable Care Act. That is to me, one big (direction in your thinking). Even if you didn’t consider yourself criticizing him personally, you criticized the reasoning. … (You said also) that justice Scalia had the better legal argument (when he dissented in the Court's support of the Affordable Care Act in the King v Burwell case).”
So, leaving the obstructionist hemming and hawing aside, Judge Barrett sided with Scalia despite the social and and life threatening consequences she had volunteered to point out. And she opposed Roberts's support of the ACA despite his literal reading of the Constitution's taxing power (in Article I, section 8!). She said it was not the “most natural reading” or that he had pushed the Act “beyond its plausible meaning” by calling a government required payment a tax: the very words of the enumerated powers of Congress in the Constitution.
In the controversies over the constitutionality of the New Deal programs until 1937, similar economic and social questions arose. In the decisions of the Supreme Court of the early 1930s a conservative majority on the Court had ruled against the FDR programs until the President threatened to increase the number of justices on the court and force older justices to retire. Though this reform, commonly called “packing the court,” failed to pass Congress, the Court then moved to support the reforms of the FDR administration. The National Industrial Recovery Act (NIRA), was the most important measure that the Supreme Court declared unconstitutional. In his Fireside Chat concerning judicial reform FDR accused the Court majority of obstructing one of the three horses (branches) pulling the plow of government to go against the will of the people. The majority had overturned laws that were keeping the economy growing. Some Democrats in 2021 have been floating similar ideas that it would be justified to increase the number of justices on the Court because the appointment of Coney Barrett created a 6 to 3 conservative majority. As a result, the programs in addition to the Affordable Care Act abortion rights, labor legislation, black rights, immigrant rights, LGBTQ rights, voting rights and gun legislation are all called into question. All of the social and political gains of the last 88 years and future reforms are in danger. A daunting prospect.
There was a very big change in the Court's philosophy that saved the New Deal programs despite FDR's inability to pass the court reform. However, it was not only the change in the mind of the conservative Owen Roberts that caused the famous “switch in time that saved nine.” In fact, constitutional scholars have suggested that Roberts had changed his mind before the introduction of FDR's court reform bill. There was also a striking shift by the Chief Justice Charles Evans Hughes.
In Schechter v. United States (1935) that overturned the NIRA, Chief Justice Hughes, writing for a unanimous Court stated that in the Act the president was given powers to set standards for industry that only Congress had the power to set. The Chief Justice wrote:
“We are told that the provision of the statute authorizing the adoption of codes must be viewed in the light of the grave national crisis with which Congress was confronted....Extraordinary conditions may call for extraordinary remedies.... (But) Extraordinary conditions do not create or enlarge constitutional power.”
However in West Coast Hotel v. Parrish – in regard to the minimum wage for women in 1937 – after the Court Packing Plan had threatened to enlarge the Court, the Chief Justice declared:
“What these workers lose in wages the taxpayers are called upon to pay. The bare cost of living must be met. We must take judicial notice of the unparalleled demands for relief which arose during the recent period of depression....The community may direct its law-making power to correct the abuse which springs from their selfish disregard of the public interest.”
So in the space of two years “extraordinary” had become “unparalleled” and economic conditions moved to center stage as a reason to grant relief to women who were not making a living wage. The quote could be a paraphrase of lines from FDR's First Inaugural.
The opinion in West Coast Hotel goes directly against Barrett's callous and shallow understanding of the role of the judiciary. It is a statement about social consequences of Supreme Court rulings that takes no judicial notice of original or literal interpretation of the Constitution.
V
Now I want to turn to one of the so-called super-precedents, Brown vs. Board of Education, that the originalists consider unchangeable or in other words, subject to stare decisis. Amy Coney Barrett discusses super-precedentsat some length in her long article, “Originalism and Stare Decisis,” that appeared in the Notre Dame Law Review in 2017. How these cases that Justice Barrett considers too settled to touch came to be chosen as uniquely unchangeable, she does not explain. In an article that has stare decisis in the title it is certainly a significant omission. Consequently, it is interesting, just how this decision was presented in the unanimous rulings of the Warren Court in 1954, because the reasoning goes against originalism and the textual parameters that Scalia and Coney Barrett have put forward. Here are key parts of the decision that overturned Plessy vs Ferguson from 1896. The central topic was whether separate but equal access to education was constitutional.
First, Chief Justice Earl Warren explained why it was wrong to “turn back the clock to 1868” when the 14th Amendment, which established equal protection, was adopted or “even 1896” when Plessy was decided because:
“We must consider public education in light of its full development...Today education is perhaps the most important aspect of state and local governments... (We must recognize) the importance of education to our democratic society.... Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training ...(I)t is a right which must be made to all on equal terms....”
This is plainly an argument that dismisses original intent. In fact in 1868 and in 1896, schools were segregated by race in the South and in much of the rest of the country. It is an argument that uses the 14th Amendment understood in terms of education as an engine of democracy which gives equal protection an entirely different meaning to the Court in 1954 than it did in the 19th century.
The line of argument in favor of the Affordable Care Act that Senator Klobuchar was calling for is at the center of the Brown decision. It is the argument that Chief Justice Hughes made in West Coast Hotel so forcefully: “The bare cost of living must be met.” And it is the argument that Madison made in the Bank controversy first that the BUS was dangerous because it would favor the rich and second because the American people had used the bank from 1791 to 1811 to good advantage, so that in 1816 he supported what he had before opposed. The fundamental disagreements among Madison and Jefferson on the one hand and Hamilton and Washington on the other show the impossibilty of a single original intent. Additionally, Madison changed his view of the protections of the rights of individuals and states when he saw that the work of the Constitutional Convention was at risk because it did not have the support of delegates of New York and Virginia.
Both original intent and literal reading have run into serious contradictions that that cannot be reconciled by the founders' experience, their sharp disagreements, or the reading and understanding of the Constitution. The Court's repeated and clear concessions to wishes of the people, their sovereigns, are damning in their effect. After all, they were ones who had “ordained and established (the) Constitution for the United States of America.” History and straight-forward logic combine to undo originalist and textual interpretations of the Constitution.
*Note.
This essay was written before the latest Supreme Court Decision on the Affordable Care Act on June 21, 2021. The argument of the majority of 7 to 2 which Amy Coney Barrett supported despite her originalist philosophy was that the plaintiffs did not have standing to bring the case. The question of standing in a lawsuit comes before other considerations. If the plaintiffs do not have the right to bring a suite then the suit is thrown out. Justice Breyer's opinion was supported by all the liberal justices, and the conservatives Amy Coney Barrett, Brett Kavanaugh, Clarence Thomas and Chief Justice Roberts. One reason for her vote might be that this decision is in line with the previous cases on the ACA that showed that the majority of the court was concerned to up hold the ACA because the threat of court packing and the backlash of the 63% of the population who supported the ACA in December 2020. When Coney Barret told Sen Amy Klobuchar that the first major case was decided wrongly, she said that Justice Roberts stretched the meaning of the statute. Here she agreed with the analysis that the suit should not have been tried in the first place, a fundamental in the law.
8/10/21