Is The Constitution A Living Or Dead Document? One of the issues Supreme Court nominee Elena Kagan can expect to be quizzed about is the question of how she interprets the Constitution. In advance of the hearing, guests explain the various views, from originalist to living constitutionalist, and debate their merits.
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Is The Constitution A Living Or Dead Document?

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Is The Constitution A Living Or Dead Document?

Law

Is The Constitution A Living Or Dead Document?

Is The Constitution A Living Or Dead Document?

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One of the issues Supreme Court nominee Elena Kagan can expect to be quizzed about is the question of how she interprets the Constitution. In advance of the hearing, guests explain the various views, from originalist to living constitutionalist, and debate their merits.

Guests

David Savage, Supreme Court reporter for the Los Angeles Times and Chicago Tribune
John McGinnis, law professor, Northwestern University
Dahlia Lithwick, senior editor, Slate

NEAL CONAN, Host:

We begin here in Studio 3A with David Savage, who covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. David, always nice to have you on the program. You have a busy week next week.

DAVID SAVAGE: Yes.

CONAN: As you look forward to - of course, one more big day of rulings, of course, tomorrow as well. But nevertheless, as you look forward to these, these terms about how you read the Constitution, what philosophies do they represent? For example, well, is activist a philosophy?

SAVAGE: Well, activist tends to be - usually means it's a decision you don't like. I suppose in its purist meaning, an activist decision would be one that strikes down a law of Congress or state legislature. The court can say - do nothing and just sort of uphold the law. If you strike down the law, critics can accuse you of being an activist.

CONAN: But you could be a liberal activist or a conservative activist.

SAVAGE: Correct. The - President Obama says the court's in conservative activism because they struck down the laws on finance earlier this year.

CONAN: Now, one of the terms we hear a lot is originalists, and as we mentioned in the top of the program, the justice most usually associated with that is Antonin Scalia. What is an originalist?

SAVAGE: Well, an originalist is, according to Justice Scalia, somebody who follows the original words of the Constitution and what those words meant when the Constitution was adopted. This is really a debate that grew out of Roe vs. Wade and the death penalty decisions of the early 1970s.

CONAN: Scalia was of that generation, Robert Bork, and they basically said the Supreme Court is making up the law. They're changing the Constitution. We've got to decide cases based on what the Constitution said and what it meant. And that's been a very powerful - liberals have had a very difficult time of refuting that because it sounds like if you disagree with it, that you do want to just, like, make it up as you go along.

CONAN: But people point out the Constitution originally described slaves as three-fifths of a person. That's not what Justice Scalia means.

SAVAGE: No, and Justice Scalia's simple answer to that was the Constitution was amended. There were a lot of bad things in the Constitution. Women didn't have the right to vote.

CONAN: Sure.

SAVAGE: The Constitution was amended, and it was changed, and now it means something different today, and he accepts that, of course.

CONAN: And when they talk about the living document or the living Constitution, these are people who say wait a minute, we didn't have cars in 1789.

SAVAGE: If you take the Scalia originalism view, clearly they don't have a case. The equal protection clause didn't mean that in 1868. If you believe that there's a living Constitution or that meaning can evolve over time, that we see things differently, we see discriminations now that are just wrong, irrational and wrong, and a court can strike them down as violations of equal protection.

CONAN: And David, textualist is another term we hear. What is that?

SAVAGE: Four justices read that phrase and said a well-regulated militia being necessary to the - this is about states rights and militias, the phrase bear arms. Scalia and the four other...

CONAN: Four other justices.

SAVAGE: So the critics of the Scalia view say you've got to, in effect, take terms like unreasonable search and cruel and unusual punishment and to some degree reflect how we understand those words today.

CONAN: David Savage, thanks very much, and indeed tomorrow we expect to hear from the court on that gun question, as they rule...

SAVAGE: Tomorrow or Monday, two more days, yes.

CONAN: Joining us now from our bureau in New York is John McGinnis, professor of law at Northwestern University. Nice to have you with us today.

JOHN MCGINNIS: Delighted to be here.

CONAN: And also joining us from the studios at the University of Virginia in Charlottesville is Dahlia Lithwick, senior editor at Slate, and thank you very much for coming in.

DAHLIA LITHWICK: Thank you for having me.

CONAN: And we wanted to get you both engaged in a conversation about how you read the Constitution. John McGinnis, how do you read the Constitution?

MCGINNIS: The Equal Rights Amendment, I think, died because both the Supreme Court anticipated a bit of it and because the Warren Court was so non- originalist, no one trusted them to give them another text, which they thought they would read as a kind of blank check. And so I think it really strikes at the heart of our constitutional democracy, our own constitutional conversation as citizens, to come together and amend our founding document.

CONAN: Dahlia Lithwick, where do you come down?

LITHWICK: And I think that originalism is part of the story. It's very, very useful, I think, as a constraint upon the judiciary for all the reasons Professor McGinnis says. We need to constrain the judiciary. It's very, very critically important, but I don't think it gets you where you need to go in most of the hard, hard, close cases that actually get to the Supreme Court.

CONAN: And what about his argument about anticipating constitutional amendments? That has been a process very rarely applied for.

LITHWICK: Certainly that's right. I mean, this is what Justice Scalia always says. He says, look, if you have a problem with the Constitution as written, amend it. But that suggests that that's easily done, and again, it also suggests that the Constitution is perfectly clear. And I think the Constitution is, as David said, deliberately unclear about things like what due process of law means, what cruel and unusual punishment means.

SAVAGE: How do you amend something that was deliberately left open-ended?

CONAN: More in a moment. How about how the justices interpret the Constitution and how that may play out in next week's confirmation hearings for Supreme Court nominee Elena Kagan. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: Our guests are John McGinnis, a professor of law at Northwestern University, and Dahlia Lithwick, senior editor at Slate.com. And let's see if we can get a caller in. This is Jeff(ph), Jeff with us from Louisville.

JEFF: Once a decision has been made, that should be it. And it should be up to the people to work to change that, not to hope that someone dies and that somebody gets into the court that agrees with them. And then I want to say something...

CONAN: Jeff, could you give us an example of an issue that you feel has been - turned out badly because of what you're complaining about?

JEFF: They should be working on an amendment. And when they realize that they cannot - or they can or cannot get that, then we can come together as a country. But right now, what the Supreme Court has created for us is bickering. Okay, well, you can't trust that decision because next year they might decide something else. And that hurts us. Instead of making us work to fix problems, it makes us bicker amongst ourselves.

CONAN: And Dahlia Lithwick, I think what Jeff is talking about, we'll hear that expression stare decisis, and that means respect for precedent set by earlier Supreme Court decisions.

LITHWICK: And so I think we can't be so willing to reify past precedent that we can't look at it and say, oh my God, in some of these cases, we have made horrific mistakes, or thank goodness our mores have evolved to the point that we just don't want separate but equal to be the law of the land anymore.

CONAN: John McGinnis, would an originalist have said we needed an amendment instead of a Brown versus Board decision?

MCGINNIS: So I think Plessy v. Ferguson is an excellent example of non- originalism, and non-originalism is actually at the root of the reason for - that Jim Crow dominated the society for 80 years.

CONAN: The Founding Fathers thought we should revisit the Constitution on a regular basis to make it relevant with any changes. We do a disservice to the founders by believing that what they wrote is immutable. We treat them like gods, which they themselves did not wish us to do. John McGinnis, revisit the Constitution on a regular basis?

MCGINNIS: So it's a mistake to think that the amendment process is the only way the Constitution has to address social change.

CONAN: Well, Dahlia Lithwick, I wanted to bring you in on that point. Obviously, the Supreme Court did eventually weigh in on issues like interracial marriage and then on what states could regulate in terms of what happens in the bedroom.

LITHWICK: But the idea that the court can never make a pronouncement about the law unless the American people are ready to hear it I think really undervalues why we have a court in the first place.

CONAN: Let's get another caller in on the conversation. Freddie's(ph) with us from Chattanooga.

FREDDIE: Hello.

CONAN: Hi, Freddie, you're on the air. Go ahead, please.

FREDDIE: But now that we've formed a government for the people, by the people, what need is there for us to arm ourselves to fight against our own government, ourselves? It makes no sense. Taking the context, the historical context of the amendment, should be a very important part of interpreting the Constitution.

CONAN: Well, 1789, when the Constitution was drafted, and then, of course, the Second Amendment was part of the first 10 amendments to the Constitution. The war had been over for some time. But nevertheless, John McGinnis, this amendment, he suggests it applied to a very different time and place.

MCGINNIS: And, of course, we have a way of getting rid of it. If the social realities have so plainly changed, we can amend the Constitution. After all, it was a very high threshold to get something in the Constitution, and that's why it should be hard to amend the Constitution. That's a part of our constitutional system. If it's important that a constitution work to make only those values which represent a consensus as part of our Constitution, of course it's going to be hard to change it.

CONAN: I think that would come under the interstate commerce clause. Is this really about those kinds of things, Dahlia Lithwick, or more about principles like the right to privacy?

LITHWICK: But I think that Vince's core point, which is it's not self-evident from the language of the Constitution whether or not thermal imaging technology used by the police comes under one or another vision of what privacy is. It doesn't. And so that's what judges are for. What judges do is very hard. And as I said, these are always hard and close cases because it's not evident in the plain language of the text.

CONAN: And let's go next to Mike, and Mike's with us from Charlotte.

MIKE: And that's why, you know, I respect these judges, and that's why I actually am kind of maddened every time I see these confirmation hearings where they're coached to sit down and say, I read the law, I read the facts, and I apply the law to the facts, because it's just not that easy. And I really regret that we have to watch them prostrate themselves before Congress saying things like that. And that's my only comment.

CONAN: All right, Mike. Thanks very much for the call. And, John McGinnis, he's right, in a way, about what we can expect to hear next week from the - this has now become a sort of well-rehearsed performance by Supreme Court nominees.

MCGINNIS: And I hope some general questions like that will be asked, and then some good follow-up questions will be asked. That's often the problem in these hearings. There are some pretty good answer - questions, some good answers, but little follow up from the senators.

CONAN: Dahlia Lithwick, these often come up in the guise of questions about the right to privacy.

LITHWICK: But I think it's really true that they have a litany of ways that they can sort of recite. Here it is - here's why I can't answer this question. It's too broad. Here's why I can't answer this question. It's too narrow. Here's why I can't answer this question. It's already come before me. Here's why I can't answer it. It may come before me. There's such an enormous repertoire. And I think with each hearing, it really cements itself as part of this growing body of reasons that you don't have to answer anything, that it really becomes, I think, a rather pointless exercise in watching how many different ways the nominee can say, I can't answer that, senator.

CONAN: And the schools of thought, one we haven't included, that, of course, of the John Roberts school when he mentioned: He's like a baseball umpire - fair foul, ball, strike, safe, out. Go ahead.

LITHWICK: Well, I was just going to stay I think that in some sense, even though it was the single-most clever metaphor that's ever been deployed in a confirmation history, because it really, I think, did exactly what Mike said. It made judges look like they were robots who really didn't matter what their preexisting views were because all they do is, quote, "apply the facts to the law." But while it was clever, I think it's really disserved the judiciary, because it makes it look as though judging is easy, and it's just not.

MCGINNIS: But...

CONAN: Very quickly, John McGinnis.

MCGINNIS: Yes. I think it gets at, though, an essential truth, which is that insofar as we focus on the objective meaning, we are going to be - have a more objective judiciary that will put their preferences aside. So I do think it captures an essential ideal of the judiciary.

CONAN: John McGinnis, professor of law at Northwestern - also, Dahlia Lithwick, senior editor at Slate. We thank them for their time.

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