Originalism is a two-way street. Judges wishing to interpret the Constitution in accordance with its original public meaning must not import into their decisions policy proscriptions not actually derived from the text and structure of that document. Just as important is that textualism and originalism require judges to give force to all provisions of the Constitution, and not pick and choose which clauses to enforce. Critics have accused the modern Supreme Court of inventing some rights the Framers never intended while ignoring other—express—provisions. Failing to give meaning to clear constitutional text is as great a judicial dereliction as making up bogus…
Proponents of “living constitutionalism” or other non-originalist theories of constitutional law sometimes argue that our now 230-year-old Constitution wasn’t designed for current social conditions. Prevailing attitudes on a variety of subjects have changed dramatically since 1787, critics of originalism say. Judges must be allowed to augment or update the Constitution to keep it “relevant.”
But the Framers themselves anticipated the need for periodic revision of our national charter, providing, in Article V, a mechanism for its amendment. That mechanism has been invoked 27 times, so far.
A recent prediction in this space turned out to be premature. In my post about the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College—which held that the word “sex” in Title VII of the Civil Rights Act of 1964  includes “sexual orientation”—I forecast that the U.S. Supreme Court would grant cert and reverse the Seventh Circuit. For unknown reasons, the defendant-employer in Hively decided not to seek appellate review of the controversial ruling, foiling my prophesy. Instead, Ivy Tech Community College in Indiana will defend Hively’s employment-discrimination lawsuit on the merits.
What prompts a man to change his mind on a serious matter after 35 years, and should the reversal be met with pride (for eventually getting it right), or chagrin (for taking so long)? For reasons of vanity, I’m going to take a positive tack and choose the former.
“Wisdom,” Felix Frankfurter once remarked, “too often never comes, so one ought not to reject it merely because it comes late.” Allow me to explain.
Looking back at the Americans with Disabilities Act, passed by Congress in 1990, one has to be struck by the extent to which the ADA’s lofty sentiments have been overwhelmed by its adverse results. If it’s true that the road to hell is paved with good intentions, then the ADA is a veritable Autobahn of wishful thinking gone awry. Yet no one seems inclined to reroute the ill-fated traffic; some states are even widening the highway with additional lanes.
The unexpected retirement of Judge Janice Rogers Brown, 68, from the U.S. Court of Appeals for the D.C. Circuit will trigger a well-deserved celebration of her extraordinary judicial career, both as a federal appellate judge (since 2005) and previously as a member of the California Supreme Court (1996 to 2005). It will be difficult for President Donald Trump to appoint a replacement that comes anywhere close to filling the shoes of the of the forceful, fearless, and independent Brown, whose nomination by President George W. Bush to the nation’s second most influential court in 2003 was delayed for two years by Democratic opposition.
Legal scholars are endlessly fascinated by Oliver Wendell Holmes, Jr. (1841-1935). To some, he is “the great dissenter,” whose frequently quoted opinions were a harbinger of Legal Realism. Sympathetic biographers and playwrights have described him as the “Magnificent Yankee” and the “Yankee from Olympus.” To many libertarians, Holmes was an avatar of Progressivism, and the architect of the reviled notion of “judicial restraint.” Richard Posner celebrates Holmes, whom he regards as “the most illustrious figure in the history of American law,” as a pioneering legal pragmatist. Felix Frankfurter deemed him a “genius,” and Holmes’ 1881 book, The Common Law, has…
Going back to the tumultuous reign of Abraham Lincoln, political scientists have long been fascinated with the “Imperial Presidency,” and this interest was heightened further by the executive overreach that characterized the administration of Barack Obama. Some scholars contend that the modern presidency has morphed into a de facto monarchy, wielding power far in excess of what the Framers contemplated in Article II of the Constitution.
But that is only part of the problem. The republican form of government envisioned by the Founding Fathers rested on several essential principles that—unfortunately—became highly attenuated during the 20th century, including robust state sovereignty (federalism), the separation of powers, and the checks and balances inhering in each branch jealously guarding its power from “encroachments” by another. As James Madison memorably stated in Federalist 51, in order to keep the branches in check, “ambition must be made to counteract ambition.” It turns out that all three branches have been overly ambitious—some more than others.
The reputation of Clarence Darrow (1857-1938) as one of the greatest of American lawyers rests largely on two courtroom performances: in the murder trial of Leopold and Loeb in Chicago in 1924, and the “Scopes Monkey Trial,” which took place in Dayton, Tennessee in 1925. Both were extensively covered by the news media and later became the subject of numerous plays, books, and movies. Darrow’s 12-hour-long closing argument at the sentencing hearing in the case (the teenaged “thrill killers” had confessed, and Darrow convinced them to plead guilty for tactical reasons), which persuaded the trial judge to spare the defendants’ lives, is regarded as a classic of courtroom oratory. The bizarre case was fictionalized in the 1956 book and 1959 film Compulsion, and inspired aspects of the play and Alfred Hitchcock’s 1948 movie Rope (and, some believe, the ransom delivery sequence in 1971’s Dirty Harry).
Since the unexpected—and, in certain circles, inconceivable—election of Donald Trump as President, federal courts have aggressively obstructed his executive orders on immigration, leading to complaints that activist judges are staging an insurrection or even a coup d’état against a President they consider illegitimate. I’ve indulged in a bit of this commentary myself, but—unfortunately—the problem is deeper and more serious than a few rogue judges resisting Trump’s policies. Much of the nation’s elites, and especially the legal class that dominates the judiciary, are in a bipartisan revolt against the bourgeois social order and the constitutional loyalties it underwrites. Trump’s election has merely exposed the extent of the longstanding (and widening) cultural chasm that divides the lumpenproletariat (Hillary’s “deplorables”) from the self-anointed elites.