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Deep Ignorance

Deep Ignorance

This column was first published in The Hill on February 20, 2018.

The web has been ablaze over the ignorance displayed by Senator Brian Schatz (D-Hawaii), who showed himself unaware of the Anglo-American legal heritage. Schatz revealed his lack of knowledge by mistaking Attorney General Jeff Session’s reference to that heritage for a racist dog whistle.

For those who have been living on Pluto — or serving in Congress — the phrases “Anglo-American heritage” and “Anglo-American legal system” are standard ways of referring to the jurisprudence America inherited from England. To a considerable extent, we still share that jurisprudence with our mother country. The Constitution itself is filled with English legal terms (such as habeas corpus, and privileges and immunities) that cannot be fully grasped without understanding the English heritage. Many, if not most, states — including Schatz’s state of Hawaii — have constitutional provisions or “reception statutes” formally adopting the common law of England.

If Schatz’s comment were unique, it would simply mark him as uniquely unfit to be a lawmaker. Unfortunately, in recent years other top officials have revealed similar deep ignorance. By this I mean ignorance not merely of academic or esoteric facts but of matters central to an officeholder’s responsibilities — and sometimes central to citizenship itself.

Readers may recall that in 2010 a reporter asked U.S. Rep. John Conyers(D-Mich.) what provision of the Constitution supported Obamacare’s individual insurance mandate. A video camera caught Conyers’ response:

Under several clauses. The good and welfare clause, and a couple others. All the scholars, all the constitutional scholars that I know— I’m chairman of the Judiciary Committee, as you know — they all say there’s nothing unconstitutional in this bill. 

Of course, the Constitution contains no “good and welfare clause.” What is just as disturbing is that Conyers apparently did not know that legal scholars had issued constitutional warnings about ObamaCare on several fronts, including its mandates on the states and the procedure Congress used in adopting it. (Some of these warnings were later vindicated by the Supreme Court.)

As Conyers observed, he was then chairman of the House Judiciary Committee. According to its website, that committee “has been called the lawyer for the House of Representatives because of its jurisdiction over matters relating to the administration of justice in federal courts, administrative bodies, and law enforcement agencies.” Because the Constitution is the federal government’s basic rule book, the committee is deeply immersed in constitutional issues. Conyers was not only its chairman; he had served on the committee for 45 years!

Educated citizens who enter politics eventually learn that deep ignorance is not unusual among elected officials. To idealists, the discovery can be a shock.

It was a shock to me. As a Montana political activist and candidate during the 1990s, I was stunned to learn that the incumbent Republican governor did not know whether the state budget he had approved was smaller or larger than the previous budget. He also was uninformed of the contents of other major bills he had signed into law. And after four years in office supposedly dealing with education issues, his second lieutenant governor still had no clue what a charter school was.

Deep ignorance is not limited to matters of law and policy. The “you didn’t build that” comments in 2012 by President Obama and Senator Elizabeth Warren (D-Mass.) represent a case in point. Claiming an entrepreneur did not build his business because he used pre-existing resources is like saying to an employee that he didn’t earn his salary because the employer provided the job. The comment reveals fundamental unawareness of how creativity and effort operate in a free enterprise context. This is a risk of electing people who have little or no private sector experience.

To be sure, deep ignorance is not the biggest problem in government right now. A more basic problem is that government has gotten too massive for officials to do their jobs, even if they all had the extraordinary knowledge and capacity of, say, the late Sen. Daniel Patrick Moynihan (D-N.Y.). Still, electing ignorant people to office aggravates the federal dysfunction so concerning to most Americans.



Bruce Ledewitz is a very smart man who teaches constitutional law at Duquesne University in Pennsylvania. He recently wrote an article for the Philadelphia Inquirer—also reproduced in other news outlets. In his article, he contends that the Supreme Court’s decision this year in Trinity Lutheran Church v. Comer discredited “originalism.” Originalism, of course, is the approach of interpreting the Constitution as the Founders adopted it.

Several leading originalists—including Professor Randy Barnett (Georgetown) and Professor Michael Ramsey (San Diego)—already have published good rejoinders.  I’ve been strongly urged to write one as well.

I normally avoid getting into arguments about what kind of interpretation is best. My focus is on researching the Constitution’s history and meaning rather than arguing about it.  However, I finally agreed to respond for one reason: I believe Professor Ledewitz’s article illustrates how even intelligent and mature law professors usually are unprepared for the tasks of writing and teaching about the Constitution.

Most law professors focus, both in study and teaching, on Supreme Court cases. Most know little about the Founding Era record. Most lack the historical training needed to assess that record. Very few have studied the law of the Founding Era. Very few are familiar with the materials the Founders studied during their education, especially the Greek and Roman classics. Exceedingly few law professors are competent in Latin, the Founders’ second language.

Finally, law professors often corrupt their understanding of the Constitution with their own political preferences—either by claiming it means whatever they want or by underestimating it because it doesn’t give them what they want. These problems afflict faculty even at the nation’s most prestigious law schools.

Following are excerpted passages from Professor Ledewitz’s article with a corrective response appended to each excerpt:

Professor Ledewitz: “It was probably always a mistake to take originalism seriously as a theory of constitutional interpretation.”

Answer: Professor Ledewitz apparently is unaware that, as explained below, “originalism” is merely the constitutional name for the method of documentary interpretation that has prevailed for centuries in the English and American judicial systems. Failing to take it seriously would be a far more radical change than I think even he would recommend.

Professor Ledewitz: “Originalism, or textualism as its great proponent, the late Justice Antonin Scalia, termed it, is the theory that constitutional provisions should be interpreted in accordance with their original public meaning.”

Answer: Textualism is not quite the same thing as originalism. Textualism focuses on the meaning of words while generally avoiding resort to materials generated during the legislative process. It is usually applied to the interpretation of statutes. Pure textualism is more defensible in modern statutory construction than in constitutional interpretation because legislative history is sometimes manipulated in ways that the Constitution’s background was not.

In its most precise form, originalism is the view that judges and other officials should be faithful to the Constitution the people actually ratified (as amended). Originalists believe that judges and other officials should avoid the temptation to substitute a “constitution” they might prefer for the actual, historical document.

Writers often use the phrases “original public meaning” and “intent of the framers” as shorthand for originalism. In the 18th century, the common shorthand for originalism was “finding the intent of the makers.” All those labels can be confusing. According to the rules prevailing when the Constitution was adopted (and today as well, as to almost all other documents), an interpreter tries to recover the understanding of the parties (ratifiers). If, because of insufficient or conflicting evidence the interpreter cannot do so, then he or she applies the original public meaning as a substitute.

Professor Ledewitz: “The theory never made any sense either as a matter of language or political theory and was premised on a nihilistic skepticism about the possibility of truth in political affairs.”

Answer: Whether one can obtain “truth in political affairs” is not really relevant to the issue of the meaning of a written constitution. One reason for putting the Constitution in writing was precisely to create a rule book to contain and civilize the tumult of politics.

Professor Ledewitz: “Nevertheless, originalism has achieved a real rhetorical dominance.”

Answer: He writes as if originalism were a recent development. But seeking “the intent of the makers” has been the prevailing Anglo-American legal method of interpretation for centuries. The Founders absorbed it from, among others, the 16th century legal scholar Edmund Plowden. During the 18th, 19th, and early 20th centuries it was the prevailing way of interpreting the Constitution. Originalism’s “rhetorical dominance” was achieved because of this history and also because (1) that is how we construe most other legal documents (certain real estate instruments partially excepted), (2) it is hard to justify the current double standard, and (3) non-originalists have failed to agree on principled alternatives.

Professor Ledewitz: “But, with the Trinity Lutheran Church decision on June 26, originalism as a theory can confidently be relegated to the historical ash heap. In Trinity Lutheran, Missouri excluded a church playground from a state reimbursement grant program toward the purchase of safe playground surfacing material. . . .The church won, 7-2. Given the safety issue and the nonreligious nature of the playground, the decision was certainly a sensible outcome. But, from the point of view of originalism, the decision was ridiculous.”

Answer: Courts may err in applying any theory of interpretation. Assuming the decision in Trinity Lutheran was wrong, Professor Ledewitz does not explain why one error should discredit a procedure that has served us for centuries.

Professor Ledewitz: “If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches.”

Answer: This is incorrect. The primary principle underlying the Establishment Clause was that Congress must treat all religions impartially. The Clause did not extend to the states. Those seeking “disestablishment” at the state level opposed taxpayer subsidies to churches designed to promote particular religions. They did not object to paying a church for unrelated contractual obligations—the scenario in Trinity Lutheran. And they would have been outraged at Missouri’s practice of discriminating against churches generally.

Moreover, as Professor Barnett has pointed out, the part of the Constitution most relevant to Trinity Lutheran is the Fourteenth Amendment, not the First. This is because the Supreme Court has applied First Amendment principles to the states only because of language in the Fourteenth Amendment. Professor Ledewitz’s article is devoid of any discussion—or even any mention—of the Fourteenth Amendment.

Professor Ledewitz: “The historical absurdity of the decision is why only the two dissenters, Justices Sonia Sotomayor and Ruth Bader Ginsburg, discussed the history of the religion clauses. But, since those two justices are not originalists, their discussion must be considered merely opportunistic. There are no originalists on the court.”

Answer: It is poor practice to conclude from a single decision—even assuming that it was erroneous—that there are “no originalists on the court.” Justice Clarence Thomas has applied originalist jurisprudence to countless cases throughout his long tenure. Based on several cases in his first term, Justice Gorsuch also appears to be an originalist.

Professor Ledewitz: “Although no one bothered to say so in the decision, a departure from historical understanding was justified in the Trinity Lutheran case because the modern sense of unjust discrimination is much more robust than when the First Amendment was adopted and government funding of private activity is much more prevalent than in the 18th century, when such spending was largely unknown. What would not have struck the framers as unfair discrimination against religious believers looks like that to us.”

Answer: There are a number of problems with this statement. First, Missouri relied on a section of its state constitution (the “Blaine provision”) designed to discriminate against particular religions, notably Roman Catholicism. This violated the central principle of the Establishment Clause as understood by the Founders, not merely by us.

Also, as noted above, the actual amendment governing the case was the Fourteenth Amendment, which was adopted in 1868, not during the Founding Era. Discriminating against churches in distributing otherwise generally-available funding probably violates that Amendment’s Equal Protection Clause. To contend that Missouri’s practice was consistent with the Constitution, one must argue both that (1) the Establishment Clause does not apply to the states and (2) the Fourteenth Amendment permits discrimination against churches. Professor Ledewitz does not make those arguments.

Professor Ledewitz: “That is how the living constitution works. We apply constitutional principles in ways that make sense today. We do not clone the thinking of political leaders who faced vastly different circumstances. . . .”

Answer: Following the Constitution does not require us to “clone the thinking” of anyone. It requires only that we follow the meaning of the words in a controlling document. Courts do that sort of thing all the time. It’s their job.

Moreover, what are the “constitutional principles” Professor Ledewitz would have us apply? Are they principles that we make up as we go along? In that case, we are acting politically, not constitutionally.

Or does he mean we should derive our constitutional principles from the Constitution? But the Constitution embodies a number of basic principles, and they sometimes conflict. The framers and ratifiers carefully crafted the document’s language to balance those principles in specific ways. Originalist interpretation enables us to understand the results. Non-originalist judges and professors often insist on re-balancing principles to suit themselves rather than inquiring how the Constitution balances them.  In doing so, they are acting politically, not constitutionally.

Incidentally, the Founders were thoroughly familiar with judicial balancing. In some parts of the Constitution, such as the Fourth Amendment (“unreasonable searches and seizures”) they authorized it. Basic principles of legal interpretation tell us that where the text, or its legal meaning, do not authorize balancing, then judges have no authority to engage in it.

Professor Ledewitz: “The Trinity Lutheran decision does not mean that the cottage industry of originalism will shut down. The reason for its continuation is that originalism as a political matter never had anything to do with interpretive theory. The real purpose of originalism is to overturn the expansion of federal government power associated with the New Deal. . . . .”

Answer: An interpretive method that has endured for centuries cannot have been designed to overturn the New Deal of the 1930s. On the contrary, it was “living constitutionalism”—not originalism—that was fashioned for political ends. It was designed to offer a constitutional fig leaf for a federal coup d’etat. Not surprisingly, most people who study constitutional jurisprudence find the fig leaf transparent.

Professor Ledewitz: “Even the Republican majority in Congress does not understand the bill of goods it is being sold under the name of originalism. Included in the healthcare reform proposals being debated in the Senate are proposed national caps on pain and suffering in medical malpractice cases. Whatever one thinks of these proposals, they concern a problem national in scope that Congress should have the power to deal with. Certainly the framers of the Constitution, who were practical men intending to create a federal government with the necessary powers to deal with national issues, would agree with that if they were alive today. But, from the perspective of the 18th century, any such legislation would be unconstitutional as invasive of the reserved powers of the states.”

Answer: Professor Ledewitz is correct that some aspects of Republican federal tort reform proposals violate the Constitution’s meaning—a conclusion I have previously documented. However, he misunderstands how the Constitution’s enumerated power scheme was designed. The Founders did not give the federal government power to deal with every issue one might think “national in scope.” They were, indeed, practical men, and as such they recognized human activities of some kinds (e.g., religion, manufacturing) often affect others (commerce, foreign relations). But precisely because they were practical, they also recognized that sometimes the advantages of allowing Congress to legislate in all connected areas were outweighed by the disadvantages (e.g. the threat to liberty of centralized power).

Accordingly, the Constitution’s scheme of enumerated powers deliberately reserves certain potentially-national issues to the exclusive jurisdiction of the states. Most aspects of civil justice, including tort law, are in this category. Legitimate interstate action is still possible, however—through uniform state laws, interstate compacts, and, as a last resort, by constitutional amendment.

Professor Ledewitz: “As the Trinity Lutheran case shows, we need not be ruled from the grave. All of our law, but especially constitutional law, should be interpreted from our own perspective.”

Answer: Is Professor Ledewitz saying that judges should re-write laws to their liking simply because some or all of their sponsors are no longer around? That is a prescription for oligarchy—and the Constitution was designed to protect us against that.

Of course, Americans could have adopted a British-style unwritten (living) constitution. That would have permitted a sufficiently determined cabal of politicians and judges to change the rules. Although academia is filled with modern-day Tories who would be happier in such a system, most Americans, whatever they think of particular judicial holdings, seem quite content to have our Constitution fixed and in writing.

How the New York Times Misrepresents the Supreme Court

How the New York Times Misrepresents the Supreme Court

A recent New York Times story, titled “A Polarized Supreme Court, Growing More So,” illustrates how left-of-center media distort perceptions of the U.S. Supreme Court.

The story’s problems begin with the lead paragraph’s assertion that Justice Neil Gorsuch’s appointment is “a conservative replacing another conservative.” What the Times probably intended to say is that the appointment replaces an originalist with an originalist. Originalism and conservatism are not the same thing.

Originalism is untied to political results, whether liberal or conservative. It applies the methods English and American judges have used for centuries to interpret most documents, including constitutions. The primary difference between modern originalists and non-originalists hinges on whether judges should be consistent or whether they should change the rules of interpretation for some hot-button constitutional issues.

In the article, as elsewhere, the Times describes the Court as split five-to-four, with the majority constituting a “conservative bloc.” It is more accurate to describe the Court as split four ways: (1) liberal activists (Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor), (2) originalists (Clarence Thomas and Gorsuch), (3) advocates of judicial deference (John Roberts, Samuel Alito), and (4) an erratic social libertarian (Anthony Kennedy).

“And, in a shift in recent years,” the Times writes, “partisan affiliation has become a very strong predictor of voting trends for all its members.” The sentence is technically true but substantially misleading. This description would be better: although Democratic appointees have been reliably liberal on most issues, Republican appointees have commonly slipped to the left—a slippage reduced recently as GOP administrations have adopted better vetting procedures.

The article’s thigh-slapper is its description of Kennedy as “a moderate conservative.” Anyone familiar with Kennedy’s judicial style knows that he is not a moderate anything, much less a conservative. It is true that he has voted to strike down some particularly ambitious pieces of congressional legislation, but he has also reaffirmed the very liberal view that the federal government may exercise almost unfettered control over the national economy. More importantly, he has written a series of opinions reaching radical social results through an untethered and virtually unprecedented methodology.

Similarly revealing are the “experts” the Times chose to quote. Apparently, there are no experts in flyover country or in the South. Everyone worth hearing is from the Northeast or West Coast.  This is an extraordinary omission because the nomination of Gorsuch, a Coloradan, was widely viewed as an effort to rebalance the court toward the country’s center.

Neither do practicing lawyers exist in the Times’ world. Everyone quoted is affiliated with an academic or policy institution.

Nor do consistent originalist experts exist—even though the Gorsuch hearings dwelt largely on originalism. The Times quotes four liberals and one activist libertarian. No originalist scholars at all.

The Times article cites just one case by name: Citizens United v. Federal Election Commission. The Times treats that case, as is common among liberal writers, as an unqualified “conservative” victory. In fact, it was a split decision, with originalists winning on one issue but losing on the other.

Several years ago, the Times was properly criticized for describing the Court’s activist liberals as its “four moderates.” While the latest article doesn’t make that mistake, it does reveal the Times’ propensity for putting its left-of-center views at the hub of the ideological universe. Thus the reporter describes Obama appointee Merrick Garland as “not especially liberal.” And he selected for publication an unrebutted claim that Garland was “centrist.”

Yet the reporter’s own article shows this to be untrue. It includes another unrebutted quotation in which a long liberal wish list is described as “safe” with Garland. If he were a centrist, presumably liberals would lose sometimes!

In fairness, the Times does quote an expert who cautions against its stereotyped nomenclature—pointing out that labeling Gorsuch and Garland as “‘conservative” or “liberal” is “too simplistic and unfair to both of them.” That caution, however, is buried at the end.

This article was originally published in the American Conservative.

Three New Supreme Court Cases Show in Some Areas, the Constitution No Longer Matters

Three New Supreme Court Cases Show in Some Areas, the Constitution No Longer Matters

Note: This article originally appeared at CNS News. An earlier version included unauthorized editing and should be disregarded.

Three recent Supreme Court decisions reveal in the area of personal rights, most of the justices are applying rules unrelated to the U.S. Constitution. In two of the cases, the majority refused to protect rights expressly laid out in the Constitution. In the third, the majority strained to protect a “right” that does not appear there.

The First Amendment protects “free exercise” of religion. In 1993, the Court held—correctly, I believe—when government officials target particular religious beliefs, they violate the First Amendment.

But that’s exactly what Washington State officials did in Stormans, Inc. v. Wiesman. In that case, Gov. Christine Gregoire (D) was displeased with pharmacists who, on religious grounds, refused to dispense abortion-inducing drugs. Availability of the drugs was not a serious concern; they were freely available elsewhere. But the governor wanted to force religious dissenters to either violate their consciences or lose their livelihoods. She even threatened to fire members of the state’s pharmacy board unless they banned faith-related opt-outs. Her allies on the state human rights commission threatened board members with personal liability if they did not issue a ban.

Under pressure, the pharmacy board adopted a rule requiring religious dissenters to dispense abortifacients. Left-wing activist groups then used the rule to launch a campaign to badger dissenters into choosing between compliance or closing down.

This was a clear case of a state violating First Amendment rights, and the trial judge so ruled. But an appellate court reversed that decision, and a majority of the U.S. Supreme Court—with Justices Samuel Alito, John Roberts, and Clarence Thomas dissenting—let the appellate court’s decision stand. In doing so, the majority carried out the veiled warning they issued last year in the homosexual marriage case: Religious freedom will not be allowed to obstruct the court’s social agenda.

The First Amendment also guards “freedom of the press.” The phrase was designed to cover not only newspapers but the right to publish political opinion as well, with or without disclosing one’s identity. In fact, when the First Amendment was adopted, the usual practice was to submit an opinion for public judgment without signing one’s name. That’s how The Federalist Papers were first published.

In recent years, Congress and many states have flouted the First Amendment by adopting laws forcing the authors of political media to disclose donors’ names. Those laws are popular only among people who do not understand the real motivations behind them: to aid incumbent politicians and to subject dissenters to harassment.

In Delaware Strong Families v. Denn, the State of Delaware imposed intrusive disclosure rules on a nonprofit organization that distributed a voter guide revealing—in a relatively neutral way—local candidates’ positions on various issues. The guide was precisely the kind of publication protected by the Founders’ phrase “freedom of the press.” Nevertheless, the Supreme Court refused to overturn the Delaware rules. Only Alito and Thomas dissented.

But in Whole Women’s Health v. Hellerstedt the majority zealously protected a “right” not located in the Constitution at all.

In that case, a majority of justices struck down a Texas law requiring each abortion doctor to have admitting privileges at a nearby hospital. The idea behind the law was to assure immediate hospitalization if complications arose during an abortion procedure. The court also struck down another state law requiring abortion facilities to follow the same standards imposed on other out-patient surgery providers.

As business regulations go, the Texas laws were very modest. Judges routinely uphold much more intrusive regulations—even those that entirely abolish otherwise legitimate businesses. Yet, in this case, the Supreme Court majority—again with dissents from Alito, Roberts, and Thomas—voided both laws. The majority reasoned the regulations might reduce the availability of abortion and were therefore unconstitutional. Yet the courts do not show similar concern for other businesses greatly harmed by regulations, including other health care facilities.

The majority’s zeal is particularly striking when you consider two other factors: First, none of the plaintiffs actually were women seeking abortions. The plaintiffs were providers making money from abortions. Second, the majority swept away technical legal hurdles that probably would have killed any non-abortion case.

Sadly, in this area of constitutional law, the Constitution no longer matters much. What does seem to matter, however, are the personal views of the majority of the Supreme Court.

New Article on What "Taxes" Are (And Aren't) Under the Constitution, and the Implications for Obamacare

New Article on What "Taxes" Are (And Aren't) Under the Constitution, and the Implications for Obamacare

2005-10 RGNStPaulsWas the Supreme Court right to call Obamacare’s insurance penalty a “tax?”

Not according to the Founders.

Rob’s new article explaining just what the Constitution means by “tax” has just come out. It explains also the Constitution’s other financial terms: “Revenue,” “Excises,” “Tonnage,” “Duties,” and “Imposts.”

You can get a copy here.