Revisiting the Debate About "Originialism"

I revisit this debate on the validity of what is described as "Originalism" I wrote about almost four years ago in light of the recent carelessly drawn Supreme Court Decisions on abortion, administrative agency authority, and guns.

 

A Perspective on the Debate about "Originalism"

SEPTEMBER 22, 2018

COMPARING THE U.S. CONSTITUTION (1788) TO THE ARTICLES OF CONFEDERATION (1781) – THE PERSPECTIVE IT OFFERS ON THE DEBATE ABOUT “ORIGINALISM”

We are reading a lot of discussion, triggered by the nomination of Judge Kavanaugh to the Supreme Court, about the merits of “originalism”—that is, a doctrine which calls for rulings based on the literal reading of the Constitution and the best understanding of what the Framers meant by that reading.

Walter Williams’ column of 9/16/18 raises a fundamental question, as it cites two different sections of the Constitution which can lead to different conclusions on which responsibilities should be assumed by the Federal Government and which by the States.

The first cites James Madison and Federalist Paper 45:  “The powers delegated by the proposed Constitution to the Federal Government are few and defined” (dealing with external objects, such as war, peace, negotiation and foreign commerce), “the powers (delegated) to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.”

The other section comes from the Constitution’s Article 1, Section 8 with the phrase calling for the Federal Government to “provide for the common Defense and General Welfare of the United States.”  

The question?  What constitutes General Welfare?

Williams notes that in 1817, Thomas Jefferson wrote “Congress had unlimited powers to provide for the general welfare, but were restrained to those specifically innumerated.”

Since then there have, of course, been Constitutional Amendments (e.g., securing the vote for all; banning slavery) which resulted in the Federal Government’s assuming roles previously conferred to the states with inhumane consequences.

In addition to the Amendments, there has been legislation (often controversial) which has seen the Federal Government undertake programs for the general welfarenot specifically innumerated in the Constitution (e.g., Social Security, workers’ safety).

I don’t believe it would have been at all surprising to the Framers to see that learning experience have led to the adoption of Amendments and Federal legislation, conferring Federal authority on issues previously in the province of the states because they bear vitally on the general welfare.  

Why do I say they wouldn’t be surprised?  Importantly, they were vividly aware of the number of significant changes that had needed to be made in the Articles of Confederation in the seven short years between their adoption and the adoption of a new set of standards in our Constitution.

Here are just a few examples of the changes that occurred in that seven-year period.

1.    Establishment of new states.  Articles:  required agreement of nine states.  The Constitution required agreement of Congress.

2.    Congressional pay.  Articles:  paid by the states:  Constitution: paid by the federal government.

3.    Appointment of Members.  Articles:  all appointed by state legislatures, in the manner each legislature directed. Constitution: representatives elected by popular votes in the states, senators appointed by state legislators.

4.    Executive. Articles:  none.  Constitution:  president.

5.    Amendments to the Constitution.  Articles:  when agreed upon by all states.  Constitution: when agreed upon by ¾ of all states.

6.    Navy. Articles:  Congress authorized to build a navy; states authorized to equip war ships to counter piracy.  Constitution:  Congress authorized to build a Navy; states not allowed to keep ships of war.

7.    Power to mint money.  Articles: United States and the states. Constitution:  United States only.

My purpose in citing these differences is not to suggest that the Constitution isn’t the foundation document which must be greatly respected.  It is to suggest that recognizing that in seven short years the founders had changed their minds on what constituted the correct role between the states and the federal government, it should not be surprising that over the course of the following 230 years, there would be changes in what constitutes the proper role of federal and state governments to achieve a condition of general welfarefor the citizens of the United States that is most desirable.

It can be (and will be) argued that such changes should be embodied in amendments as they have in many cases. However, it is also appropriate that such changes be embodied in legislation.  The Supreme Court has the responsibility to review the correctness of this legislation in light of the Constitution but it should bear in mind that—just as was the case between the Articles of Confederation and the U.S. Constitution—we should be open, based on experience, where responsibility should be allocated between the federal government and state government. 

“Originalism,” if taken to the point that we can only do what Thomas Jefferson would have viewed as correct in 1817, would be a position that I feel certain Thomas Jefferson would have declared to be wrong.

Let me emphasize that I hew strongly to what would be described as a “conservative” (I’d prefer “liberal”) position on the importance of honoring State’s rights.  I do so for two reasons.  First, because states do differ in their history, experience and needs of their citizens.  Second, and in some ways more important, states have and can serve as laboratoriesfor new learning on how to resolve and best deliver services needed to advance the welfare of the nation’s citizens. To take only one example—allied closely to my own interests—it has been the experience of different states in advancing early childhood development and pre-school education that has shown not only their value but the best ways of achieving that value.

As other examples, while I believe access to affordable, quality health care is a right that should be available to all citizens (without good health, what chance does anyone have to achieve a fulfilling life?), I agree that giving states latitude in how to best achieve that objective makes great sense because we have much more to learn.  Interestingly (and rather ironically) on health care, it was the initiative of Republican Mitt Romney as Governor of Massachusetts which produced a template which was largely adopted by President Obama with the Affordable Care Act. (This, despite the fact that it has been vigorously attacked by Republicans.)

I believe the decision as to how much latitude states should have in enacting a federally mandated right will forever be a matter for legislative and judicial dispute.  Take voting.  The right of every person to vote is now constitutionally mandated through the 15 ^thand 19^thAmendments.  However, states still have significant latitude in how the right to vote is administered and enforced.  Some “methods of administration” amount to clear-cut “suppression”; for example, literacy tests, which are now banned.  Others are more subtle such as restricting the number of polling places or the days and hours of pre-election day voting.  They will undoubtedly be the subject of continued adjudication.  The guiding rule should be to take every reasonable step to allow every citizen to exercise his or her right to vote.

Chief Justice John Roberts Had It Right! If Only He Could Have Secured a Fifth Vote

  

Any prospect that the Supreme Court’s 6-3 decision on Roe will remove the debate on abortion from the judiciary and courts will quickly go up in flames.  The legal suits are emerging as I write this on such pregnant issues as, can pills/medication inducing abortion be mailed to or taken in states banning abortion?; who is accountable for an abortion in a state banning it when a women decides to use medication to induce an abortion?; what takes precedence:  the FDA’s approval of a medication (which now exits) or a state’s outlawing an abortion that could be induced by such medication? What about local DA's who refuse to enforce bans in states banning abortion? What about a clinic located in a state authorizing abortion promoting its availability in that state to women in a state not permitting abortion? 

 

These and many other legal issues are already boiling to the surface.  They are going to be the subject for appeals, suits and judicial proceedings galore.

 

There really is no intellectual basis in my opinion for failing to establish a national standard defining what constitutes a legally permitted abortion.  Deciding the case before the Supreme Court as it was originally launched by Mississippi was the correct course.  This is what Chief Justice John Roberts advocated.  It would have substituted the hard-to-define parameter of viability (the basis for Roe) with a 15-week permissible threshold.  It is true, as Justice Alito asserted in his opinion, that doing this would result in continued litigation, with some states arguing that the limitation on abortion should be tighter, i.e., fewer weeks.  But the Court shouldn’t have flinched from that reality.  What it has brought on the country through its ruling will result in far more chaos and litigation than we even had before--not to mention the risk, uncertainty and harm brought to countless women's lives. 

 

Think of it this way.  What if we still had in this country the condition that existed before the Supreme Court provided a national ruling on the right for individuals of the same sex or of different races to be married?  We know what it would look like.  People would still be going from state-to-state to achieve the condition of living which they desired and were entitled to.  So it will be now with abortion, magnified because of the ability to easily secure abortion-inducing medication through the mail, across state lines.

 

It’s only a question of time before this issue will be back before the Supreme Court facing the need for the decision which the Court failed to make this time around, i.e., establishing a national standard.

 

Chief Justice Roberts had it right.  He worked for months to secure the fifth vote he needed to achieve the ruling which the State of Mississippi originally wanted.  Only later, as they saw an

opening produced by Trump's court appointments, did Mississippi  change its plea to call for the total elimination of Roe. That perversely is what the Court has decided. It will not stand. 

 

Maintaining Faith, Stamina and Courage in Pursuit of our Vision for Our Country and the World

 

About three years ago, in summer, 2019, I read a splendid little book, on democracy by E.B. White.  I had read his essays collected in the Points of My Compass decades ago. White was born in 1908.  I find his writings from 60-70 years ago to be uncannily relevant today as we find democracy under challenge in our country and around the world. As we'll see, the challenges are not new nor is the need for courage and stamina in meeting them.

In the 1940's White wrote this:  " The pesky nature of democratic life is it has no comfortable rigidity; it always hangs by a thread, never quite submits to consolidation or solidification, is always being challenged, always being defended.”

 

Writing before the entry of the US into World War II, as Hitler’s reign creeped across Europe, he wrote:  “I just want to tell you, before I get slowed down, that I am in love with Freedom and that it is an affair of longstanding and that it is a fine state to be in, and that I am deeply suspicious of people who are beginning to adjust to fascism and dictators merely because they are succeeding in war.  From such adaptable natures, a smell rises.  I pinch my nose.”

 

What an apt description of how I felt about the Trump presidency and Trump himself as he is revealed by the January 6th Commission (and how I feel about Putin's invasion of Ukraine today).  

“My first and greatest love affair was with this thing we call Freedom, this lady of infinite allure, this dangerous and beautiful and sublime being who restores and supplies us all.”

 

Writing in 1943, advocating the world coming together in a government, White writes:  “Were we ever to get one (a world government), it would impose on the individual the curious burden of taking the entire globe to his bosom—although not in any sense depriving him of the love of his front yard.”

 

“A world made one by the political union of its parts, would not only require of its citizen a shift of allegiance, but it would also deprive him of an enormous personal satisfaction of distrusting what he doesn’t know and despising what he hasn’t seen.  This would be a severe depravation, perhaps an intolerable one.  The awful truth is, a world government would lack an enemy and that is a deficiency not to be lightly dismissed.  It will take a yet undiscovered vitamin to supply the blood of man with a substitute for national ambition and racial antipathy; but (White I fear far too optimistically concludes) we are discovering new vitamins all the time, and I am aware of that, too.” 

 

Eerily anticipating our own time, and commenting on the FCC’s regulation of radio, White writes, “This country is on the verge of getting news-drunk; the democracy cannot survive merely by being well informed, it must also be contemplative, and wise.” 

 

Never so much today as in taking the time and the care to try to understand the other point of view and what truth really is. 

 

In October 1952, White writes, “We doubt that there ever was a time in this country when so many people tried to discredit so many other people.” 

 

Well, he ought to be around today. 

“About a year ago, we started to compile a handbook of defamation, but the list got too big for us and we abandoned the project as both unwieldy and unlovely.  Discreditation has become a national sickness for which no cure has so far been found, and there is a strong likelihood that we will all wake up some morning to learn that, in the whole land, there is not one decent man.  Vilification, condemnation, revelation—these supply a huge part of the columns of the papers, and the story of life in the United States dissolves into a novel of perfidy, rascality, iniquity and misbehavior.  The writing of this lurid tale commands more and more of the time of the citizens.”

 

In June 1960 in the midst of that presidential campaign, White writes that he has read the books and published speeches of many of the candidates for president, including Kennedy, Chester Bowles, Nixon, Stevenson and Rockefeller.  He observes something that I’ve felt for at least the last eight years.  “They speak of new principles for a new age, but for the most part, I find old principles for a time that has passed.  Most of the special matters they discuss are pressing, but taken singly or added together, they do not point in a steady direction, they do not name a destination that gets me up in the morning to pull on my marching boots.  Once in a while, I try a little march on my own, stepping out briskly toward a reputable hill, but when I do I feel that I am alone, and that I am on a treadmill.”

 

For my money, President Obama described a vision worthy of “pulling on my marching boots.”  It was a vision of inclusiveness, of living our nation’s highest values embedded in living to a fuller degree our nation’s founding principles embedded in the Declaration of Independence.  But sadly his administration, impeded by Republican opposition aimed at making him a one-term president, didn’t in the end fulfill that vision.  We were not united as a country.  And President Trump divided this nation more than ever. 

 

Therein lies the greatest need for our next president, I wrote months before the 2020 election. We can’t just be driven by what we’re against even though the commitment to ensure that Trump doesn’t have another four years is correct.  We must anchor our vision and the plans to carry it out on the future, together united.  

Sadly, we remain far from realizing this vision. We remain divided,  and angry with those who disagree with us.Yet, we cannot falter in our pursuit of this vision. Just as in the past, we must retain the commitment and energy to keep going, recognizing in the words of the Talmud, we are not required to complete the task, but nor are allowed to desist from

it. 

Words to Live By--from Joseph Conrad

 “What one lives for may be uncertain; how one lives is not.  Man should live nobly, though he does not see any practical reason for it, simply because in the mysterious, inexplicable mixture of beauty and ugliness…in which he finds himself, he must be on the side of the virtuous and the beautiful.”

Looking Ahead to the Long Term--Russia's Place in the World

I believe Putin, and those supporting him, have put Russia on a course which will  be unsustainable over time. An isolated Russia--economically, politically, now even culturally --can probably survive--but it will not thrive. 

Relations with China and India and other non-aligned countries may help but they cannot begin to replace the value of the relationships with the West including the U.S. 

This will become clearer and clearer to the people and leaders of Russia just as it did at the end of the Communist era in the 1980s.

 How long this will take I do not know. It almost certainly will not happen in my lifetime. It will require new leadership. 

But in time, I  believe it will happen. The historical cultural roots and proven economic benefits of a healthy relationship between Russia and the West --as uneven as they have proved to be--are written large over time and will be equally important in the long term future. 

 So too, the West will recognize it must deal with Russia for many reasons--economic and cultural and most urgently its nuclear capacity. 

In the meantime, it is imperative that we continue to take all the action necessary to support Ukraine in preventing Russia under Putin's leadership from denying Ukraine its sovereignty. 

"The Only Guide to a Man Is His Conscience--Winston Churchill

 This is from a eulogy which Winston Churchill offered on November 14, 1940 in honor of a man he had bitterly opposed only months before, former Prime Minister, Neville Chamberlain.

"History, with its flickering lamp, stumbles along the trail of the past, trying to reconstruct its scenes, to revive its echoes, and candle with pale gleams the passion of former days. 

What is the worth of all this? The only guide to a man is his conscience; the only shield to his memory is his rectitude and sincerity of his actions. 

It is very imprudent to walk through life without this shield, because we are so often mocked by the failure of our hopes and the upsetting of our calculations; but with this shield, however the fates may play, we march always in the ranks of honor". 

Or as I pray.."for the wisdom to know the right thing to do, and the courage and perseverance to do it".

"I Never Felt I Would Live to See The Day, Yet There Remains Room for Hope"

Like so many who have studied Russian and Ukrainian history, who have come to have many Russian and Ukrainian friends and admire Russian and Ukrainian culture, I  never thought I would live to see the day when the President of Russia, Vladimir Putin, would launch a full-scale invasion of Ukraine. 

 

I thought Vladimir Putin was more prudent than that.  I thought that he would see the risk as too high and the likely damage to his own country too great.  That, of course, is not the way it has turned out.  That brutal reality—and the resulting deaths, displacement of millions of lives and the economic devastation which has resulted from it—they are a source of unspeakable pain and regret. I never felt I would live to see this day.

 

And yet…I am also reminded that I never thought I would live to see the day when the Soviet Union would peaceably dissolve as a collective body of nations committed to Communism and to the prosecution of a Cold War with the West.

 

I never thought I’d live to see the day when I, then President of Procter & Gamble, along with thousands of others, played a role in creating a business and organization in Russia, not that long after I had chased Russian submarines around the North Atlantic as part of the U.S. Navy.

 

No matter what the future brings, I will always be incredibly proud of what our P&G Russian men and women achieved. 

 

What do I hope to demonstrate with this sequence of events which I never thought I would have lived to experience?  What perspective, if any, might it offer for the future?

 

Several things, I believe.

 

It forcefully underscores that history is not inevitable.  That it does not proceed in a straight line.  That it encounters unexpected dramatic changes. 

 

It cautions us to not give up hope.  Situations that have looked borderline hopeless in the past have turned around, gotten better, more often than not in ways we did not anticipate. 

 

Above all, for me, it highlights the importance of individual agency. 

 

I do not believe that the peaceful demise of the Soviet Union, accomplished in the face of the great threat of it being violent, could possibly have happened if it were not for the person of Mikhail Gorbachev.  To be sure, there were underlying factors, importantly economic and the openness of communication that allowed Russians to see what was happening to the West.  These were foundational realities that helped prompt dramatic change in Russia.  But the evolution of this change in the peaceful way in which it occurred was by no means certain.  There were other Russian leaders, who I encountered first-hand, who would have fought the dissolution of the Soviet Union tooth and nail, with great loss of life. 

In much the same way, one can explain Vladimir Putin’s disastrous decision to invade Ukraine and trace it back to certain historical decisions, particularly the expansion of NATO and the failure to grasp the slim opportunity that existed at the turn of the century to bring Russia into a Pan-European security network.  As I wrote in 2014 when Russia annexed Crimea, there is “enough blame to go around.”

 

However, make no mistake.  The decision on how to respond to the perceived (or actual as Russia saw it) risk that Russia’s security posed by NATO was singularly dependent on the decision by Vladimir Putin, as he called on his army to invade Ukraine.  The decision to do this without even obtaining an even halfway accurate idea of how the Ukrainian people would react to this invasion also rests squarely on Vladimir Putin. 

 

So there we have two of the most unforgettable events in my entire 80+-year life that I never thought I would see the day to experience. 

 

This view of history leads me to the hope that there will again be a shift of power and belief system in Russia which this time will offer the opportunity for Russia to take its place within a broad European security network.  For decades, I firmly believed this is where Russia belongs.  Yes, bringing its own unique cultural history and belief systems but still part of Europe and the West. 

 

Having had the benefit of being close to Russia and Russian people for over 30 years and having studied its history and culture, I firmly believe that its natural place in this global spectrum we inhabit is part of a broader Europe.  There are already major differences between countries in Europe:  between Germany and Italy, France and the U.K., Poland and Spain.  Russia, too, will have its own unique characteristics.  But while it didn’t participate fully in The Enlightenment, all you need to do is read Russian literature and experience its music and its art and know its people to see the place it occupies in Western culture. 

 

The fact that this will not happen in my lifetime, with my now being over 80, is disappointing but it is not personally deflating.  I know history is long. No set of  experiences shows how it can change more than what we have experienced in Russia over my adult lifetime.

 I am conscious that achieving this end will not happen on automatic pilot.  It will require many things which I cannot pretend to know, but three I can:

 

1.     People in  Russia, as many are right now, standing up bravely, at risk of their lives, to argue for and  commit to advance as best they can,  a liberal way of life. People who do not give up hope in a better future.

2. That the people of the world at large and of the West in particular not "blackballl" the Russian people generally as evil and as "enemies" but rather recognize that this tragic decision to invade Ukraine was very much the decision of its leadership. And recognize further that in the long run--and the short run too for that matter--that working with Russia, without expecting we will see everything alike, is in the interest of the United States, Russia and the entire world.

3..   Ultimately, the emergence of a Russian leader who can gain the confidence of the Russian people and play the positive role that Gorbachev did over 30 years ago, and Lech Walesa did in Poland, and Nelson Mandela did in South Africa, and Abraham Lincoln did in the United States and that this leader will be matched with leaders from the West who are prepared to work together to achieve common existential goals.