Although John Roberts says, "I don't have an overarching, uniform philosophy," the man who may sit as chief justice for more than a generation surely has jurisprudential inclinations. These merit strict scrutiny, perhaps beginning with the following questions for him:
The Congress that in 1866 drafted the 14th Amendment's guarantee of "equal protection of the laws" clearly thought the amendment was compatible with programs -- e.g., the Freedmen's Bureau, created in 1865 -- tailored to benefit African Americans. And in 1866 Congress rejected a bill that would have ended segregation of schools in the District of Columbia. Cass Sunstein of the University of Chicago Law School says, "On historical grounds, it would not be at all implausible to say that the ratifiers of the [Equal Protection] Clause understood it to permit racial segregation as well as affirmative action." So what help are "historical grounds" when construing the Constitution?
Construing the Eighth Amendment's proscription of "cruel and unusual punishments," the court has said the meaning of that clause changes with "the evolving standards of decency that mark the progress of a maturing society." But Justice Antonin Scalia, citing "the whole antievolutionary purpose of a constitution," says:
"It certainly cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot."
Is Scalia wrong?
The doctrine of stare decisis -- respect for precedent -- gives the law predictability and has given citizens due notice of what is probably required or permitted. There are, however, occasions -- for example, overturning Plessy v. Ferguson and the constitutionality of racial segregation -- for abandoning precedent. What characterizes such occasions?
Legislators produce much "legislative history" -- committee hearings and reports, floor debates. Should judges study those to discover the "legislative intent" behind a law? Or does this lead to what Laurence Tribe of Harvard Law School calls substituting "unenacted thoughts for whatever text actually passed through the fires of bicameral approval and presentment to the president for signature or veto"?
Justice Oliver Wendell Holmes said: "I don't care what their intention was. I only want to know what the words mean." However, the First Amendment's words guarantee freedom of "speech" and "press," but surely the amendment's authors intended to also protect, for example, handwritten notes. So, is discerning intent -- what the Framers of the Constitution or the enactors of legislation expected would be the consequences of what they did -- one way of deciding meaning?
Tribe says justices must respect the ways in which the Constitution "is a work in process, a body of law that 'We the People' do not in fact 'ordain and establish' all at once, in the originalist's equivalent of the physicist's big bang." But "originalists" strive to promote judicial restraint by stressing that the Constitution must be construed to mean only what the Framers and ratifiers of the text thought it meant.
One problem, however, is that what was originally thought can be unclear. Another problem is that what arguably was thought by an original majority is now simply unacceptable. For example:
In 1798, just seven years after the First Amendment was added to the Constitution, Federalists, then a congressional majority, said the Sedition Act was compatible with the amendment because freedom of speech meant only freedom from prior restraint -- from prohibitions on speaking -- not freedom from subsequent punishment for what was said. However, Republicans such as Albert Gallatin said it is "preposterous to say that to punish a certain act was not an abridgement of the liberty of doing that act." Is the fact that Gallatin's view has prevailed a defeat for "originalism"? If so, aren't you glad?
With its Dred Scott decision of 1857, the Supreme Court sought to solve the sectional crisis by ruling that under the Constitution slaves and their descendants could never count as U.S. "citizens." Is it not arguable that this decision was (a) originalism and (b) activism?
Holmes, advocating judicial restraint in the name of majoritarianism, said: "If my fellow citizens want to go to Hell I'll help them. It's my job." In the past decade alone, the Rehnquist Court, in an unprecedented flurry of activism, has struck down more than three dozen enactments by the people's representatives in Congress. Are you for such judicial activism, or are you for helping us go to Hell? Or is this the fallacy of the false alternatives?