Captain Ed’s misunderstanding of originalism

On at least two recent occasions, Ed Morrissey at Captain’s Quarters has presented a view of constitutional originalism that is the opposite of its correct meaning. He wrote during the Harriet Miers controversy:

Brown, of course, represents judicial originalism as an antidote to the judicial activism of Plessy. In the latter, the Court determined that it would be too difficult to eliminate Jim Crow and simply fit the law around the existing systems of apartheid. In the former, the Court took the appropriate look at the text of the 14th Amendment and original intent of Congress in passing it to reverse not just Plessy but dozens of following decisions that established “separate but equal” as at least the same kind of superprecedent that Roe has become.

This is a startling statement, since the Brown decision outlawing school segregation is considered, even by liberals, to be a supreme example of anti-originalism. Indeed, liberals have always celebrated Brown as the keystone of the arch of judicial legislation, and even moderate liberals frequently admit that while they like the results of Brown, the reasoning in the decision is not based in the Constitution. The framers of the 14th Amendment explicitly stated that the Amendment did not touch state and local laws mandating segregation. Following the ratification of the 14th Amendment, eighty years of judicial decisions declared, correctly, that the Amendment did not outlaw segregation. Most importantly, in the famous 1896 Plessy case, the Supreme Court held that if segregated black facilities were equally as good as the white facilities, there was no violation of the 14th Amendment. The Supreme Court in Brown, recognizing that the established understandings of the 14th amendment offered no grounds for outlawing school segregation, yet determined to end segregation anyway, simply sidestepped this constitutional background and declared that segregation in and of itself, even if the segregated facilities were entirely equal in their qualities, so damaged the self-esteem of black children that it amounted to a violation of their rights. It was a breathtaking act of judicial law-making—and, once again, liberals have always worshipped Brown for that very reason. Yet now Ed Morrissey comes along and announces, out of the blue, that Brown represents judicial originalism.

On October 31, 2005 Morrissey again advanced his idiosyncratic notion of originalism. He wrote:

On the other hand, Alito doesn’t always produce rulings that please the Right, which sometimes wishes for activism when it should be pleased with originalism. [emphasis added] USA Today shows Alito’s libertarian streak in a July profile highlighted by Michelle Malkin:

Some observers say that Alito cannot be easily pigeon-holed. In Saxe v. State College Area School District, Alito, writing for the panel, argued that the school does not have the right to punish students for vulgar language or harassment when it doesn’t disrupt the school day. “Sam struck that down as a violation of free speech,” Kmiec says. “That’s not a conservative outcome.”

In the Saxe decision that Morrissey praises as “originalist,” the Third Circuit Court of Appeals applied the 1st Amendment to a Pennsylvania school district on the basis of the Incorporation Doctrine, which says that the Bill of Rights constrains state and local governments as well as Congress. The Incorporation Doctrine “incorporates” the provisions of the Bill of Rights, which control only the Congress, into the 14th Amendment, which controls the states. Thus the words, “Congress shall make no law abridging the freedom of speech…” have been in effect changed—by the Supreme Court, not by a Constitutional amendment—into “Congress and the state legislatures and the county and municipal governments shall make no law abridging the freedom of speech…” Incorporation has been perhaps the single greatest engine of the unconstitutional extension of federal judicial power over the states. Serious constitutional conservatives, most notably Raoul Berger in his seminal work, Government by Judiciary, The Transformation of the Fourteenth Amendment, consider it a false doctrine that has reversed the meaning of the Bill of Rights. Instead of protecting the states’ self-government from federal intrusion as originally intended by the Founders, under the Incorporation Doctrine the Bill of Rights gives the federal courts an almost unlimited veto over what state government can do in such areas as speech, religious practices, vagrancy, and sexual behavior, basically destroying the traditional power of American communities to govern their own affairs. An example is the Supreme Court’s banning of loitering laws in the early 1970s. A court decision such as Saxe that accepts as a given the Incorporation Doctrine’s application of 1st Amendment restrictions to states and localities, in order to overturn a speech code that had been enacted by a local school board, is the very opposite of originalism.

Thus Morrissey describes the main building blocks of the liberals’ Living Constitution as “originalist,” and describes true originalist positions as “judicial activism.”

Posted by Lawrence Auster at October 31, 2005 01:51 PM | Send