“I told the people on the campaign trail that I’ll pick somebody who knows the difference between personal opinion and the strict interpretation of the law. You might have heard that several times. I meant what I said.” — George W. Bush

“For now, I’ll sit the Miers fight out until I know with some certainty that she’s a vote for our values.” — Gary Bauer

We’ve known for a long time the “interpretation of the law” speech is hooey. During the Terri Schiavo episode the social conservatives made it clear they have no regard whatsoever for the constitution, federalism, separation of powers, or the rule of law. They want what they want, period, even if they have to pull on their jack boots and stomp all over democratic principles to get it.

And we’ve known for a long time that rightie claims of wanting judges who “don’t legislate from the bench” is also hooey. Adam Cohen wrote in the New York Times (April 19, 205),

Conservatives claim that they are rising up against “activist judges,” who decide cases based on their personal beliefs rather than the law. They frequently point to Justice Antonin Scalia as a model of honest, “strict constructionist” judging. And Justice Scalia has eagerly embraced the hero’s role. Last month, after the Supreme Court struck down the death penalty for those under 18, he lashed out at his colleagues for using the idea of a “living Constitution” that evolves over time to hand down political decisions – something he says he would never do.

The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution’s plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.

Cohen goes on to site examples of Scalia’s activism and his uncanny ability to twist the plain language of the Constitution around to mean whatever he wants it to mean. But you knew that.

One of the Right’s new buzzwords is originalism, which dKosopedia explains—

The term originalism refers to two distinctly different ideas: One version, known as original intent, is the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it. The other version, known as original meaning, or textualism, is the view that interpretation of a written constitution should be based on what it would commonly have been understood to mean by reasonable persons living at the time of its ratification.

Originalism is only concerned with determining the meaning of a text. Constitutional interpretation is not constitutional construction; rather, construction is the determination of how the provisions of a text apply to a specific question.

The key to originalism is that interpretive decisions made by Judges should be based on facts about the document when it was originally written or ratified, with minimal adjustments for the time or context in which it is interpreted. Under this method, even when a judge sees an issue he is persuaded ought to be ameliorated somehow, if the law as written and interpreted in the light of its original intent or original meaning does not support the end result sought, a ruling supporting that result is not granted. In this manner, originalists contend, alteration of the Constitution remains the perogative of the amendment process outlined in Article V.

I agree with the originalists to a limited extent. Whether the Constitution is or is not a living document, it’s written in English, which is a living language. And language changes; the meanings of words and phrases shift over time, and sometimes can end up meaning something quite different from what they meant a couple of centuries ago. So when you’re dealing with a specific phrase–for example, “high crimes and misdemeanors”–it’s a good idea to find out what that phrase might have meant to a bunch of guys writing a constitution in the late 18th century.

The problem is, it takes someone with at least some scholarly aquaintance with history and legal language to appreciate what those meanings might have been. And we’ve seen in recent years that righties don’t have a lot of patience with scholarship, especially when it gets in the way of their agenda. For example, you might recall the episode, ca. 1998, in which several truckloads of historians tried to explain to the House of Representatives that none of the articles of impeachment they were bringing against President Clinton rose to the level of a “high crime or misdemeanor” as the Framers understood the phrase (one such explanation here). Righties dismissed the scholars as if they were so many annoying mosquitos.

For that matter, continued rightie insistence that the Framers intended for America to be a Christian nation, in spite of the fact that they failed to mention any Person of the Trinity in the Constitution, seems more “revisionist” than “originalist” to me. But let’s go on …

Although I’ve said that I agree the Constitution should be understood in the context of 18th-century language, the unworkability of rigid originalism struck home to me a few weeks ago as I was reading a book about Abraham Lincoln and the Civil War–

Chase regularly came to Lincoln and moaned about the spiraling costs of the war and the increasing difficulty of borrowing Wall Street money to pay for the mountains of hardtack, the uniforms, the guns, the soldiers’ pay. Then, one day in the summer of 1862, a visitor from Ohio, David Taylor, told Lincoln there was a way for the government to raise huge amounts of money: by issuing interest-bearing notes, which could circulate as currency or be kept as an investment.

Lincoln grasped hold of this idea with an enthusiasm fueled partly by desperation. Chase told him Taylor’s plan was impossible, the Constitution did not allow the government to issue a paper currency. [Geoffrey Perret, Lincoln’s War (Random House, 2004), pp. 201-202]

I checked. Article I, Section 8, Clause 5, says Congress can coin money. It doesn’t say Congress can print money. That’s right, folks. Y’know those green paper things you carry around in your wallet? They’re unconstitutional.

Apparently Chase’s opinion was not some off-the-wall interpretation from one guy. The text goes on to say that Lincoln agreed printing money was unconstitutional, but he did it anyway. And soon everybody was spending “greenbacks” just like coins.

The money thing is not the only little surprise lurking in a very strict interpretation of the text. The Framers had serious heebie-jeebies about maintaining a standing army, for example, and down in Article I, Section 8, Clause 12 wrote that Congress had the power to “raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Needless to say, this provision has been interpreted quite loosely also.

Bottom line: If we woke up tomorrow to find the originalists in charge, the whole dadblamed nation would come to a screeching halt, and we’d spend the next several years working through the Constitution and passing amendments thereto before we could get the critter up and moving again.

The genius of the Constitution is that it gave us a working structure for governance that has lasted these many years. But within that structure We, the People have felt free to expand the role of government as needed to meet changing realities and to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty,” etc.

What the originalists want to do is toss out more than two centuries of hard-won experience and start from scratch. I vote no.

But back to the courts. In spite of Alexander Hamilton’s stern warnings in Federalist #78 that the courts needed to be kept separate from Congress —

In a monarchy [the judiciary] is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. …

… though 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; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive….

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

— in recent years the Right has embraced the notion that the judiciary is an arm of the legislature and must follow its instructions. Thus, in the Terri Schiavo case, when Congress tried to legislate what the courts should decide, and it didn’t work, the righties howled about the “out-of-control judiciary.” What they meant, of course, was out of their control.

A variation on this gripe is that since “liberals” can’t win elections they are using the courts to promote the liberal agenda. If by the “liberal agenda” you mean respecting civil liberties and equal treatment under the law I suppose we’re guilty as charged. But I’d like to know exactly how it is we liberals are dictating our evil schemes to the courts and if I can apply for a place on the liberal judiciary steering committee. Sounds like fun.

Anyway, I started out to write about Harriet Miers and got sidetracked. Just read this; it’s a hoot.