A Matter of Interpretation: Federal Courts and the Law Antonin Scalia

One article on Scalia argues that this book marks "the high point of his intellectual influence across party lines." I offer it because the link to it in the Princeton University Press contains a statement that seem to succinctly explain his approach to interpreting the Constitution.

- Click here for the link.

We are all familiar with the image of the immensely clever judge who discerns the best rule of common law for the case at hand. According to U.S. Supreme Court Justice Antonin Scalia, a judge like this can maneuver through earlier cases to achieve the desired aim--"distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal--good law." But is this common-law mindset, which is appropriate in its place, suitable also in statutory and constitutional interpretation? In a witty and trenchant essay, Justice Scalia answers this question with a resounding negative.

In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the "strict constructionism" that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly "smuggle" in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals.

From Scotusblog: Commentary: Scalia in history — a first draft

Lyle Denniston takes a crack at figuring out how history might remember Scalia. He sees a mixed bag.

- Click here for the article.

History will be kind to Justice Antonin Scalia — if the future fully appreciates his scholarship, his inventiveness in legal thinking, and his beguiling cleverness with words. It will not remember him well for his air of superiority, the sting of his rhetoric, his frequent disdain for collegiality, his exaggerated estimate of himself as a comedian and thespian.

Within the Court and among the panoply of past Justices, Scalia was as much the originator of a school of legal philosophy as Louis Brandeis, as gifted a legal craftsman as Robert L. Jackson, as influential an intellectual as John Marshall Harlan (the second), as path-breaking as Earl Warren.

But he also would become the most polarizing figure on the Court since George Sutherland, as impervious to changing times as Samuel Miller, as condescending as Felix Frankfurter, as self-absorbed as William O. Douglas, as controversial as Roger Taney.

In short, history will find him a deeply puzzling, but profoundly interesting, paradox. He was, as journalist and author Joan Biskupic anointed him, an “American Original.”

If there is a truly enduring part of his legacy, it surely will be his role as the patron saint of modern legal conservatism, and especially the branch of it that believes that the Constitution was essentially embalmed in 1789 (or when an amendment was added), preserved for adulation and imitation but almost always a bit musty and antique.

538: How Scalia Became The Most Influential Conservative Jurist Since The New Deal

More supporting the idea that Scalia helped transform the Supreme Court.

- Click here for the article.

Think of the Supreme Court as a small group of lawyers who meet up in Washington several times a year to discuss and debate a variety of important topics. When they finish debating, they get together with a small staff of recent law school graduates and write up their opinions. Then, if more of them say one thing rather than another, our entire legal system — whether it agrees or not — acts as if it were true.

In a debating society like this, a member with the most persuasive voice and forceful arguments can play an outsize role, and that is what Justice Antonin Scalia did for nearly 30 years before his death on Saturday. His staunch and consistent advocacy for “originalist” methods of legal interpretation — the philosophy that a law’s meaning doesn’t change over time and should be interpreted as a “reasonable person” would understand the text at the time it was passed — raised his profile on the court and made him perhaps the most influential figure in our legal system since his appointment.

The tangible effects of Scalia’s philosophy were manifold, delighting some and disgusting others. Between 1986 and 2014 he was the deciding vote on 342 decisions, according to the The Supreme Court Database, and voted on the “conservative” side 284 times in these decisions.

This didn't take long - from The Hill: Attorney files 'birther' lawsuit against Cruz

This will be worth following. I assume it will go through the courts quickly, but who knows? The article reports that Marco Rubio's eligibility is also being challenged.

- Click here for the article.

A Texas attorney has filed a lawsuit questioning Ted Cruz’s eligibility to serve as president.

The federal case filed in Texas argues that the question must be presented to the Supreme Court for fair adjudication instead of left up to popular consensus.
“The U.S. Constitution is not a popularity document for fair weather only,” says the lawsuit filed by Newton Schwartz.

“However persuasive one finds each side in this debate, the final decision ultimately rests in the hands of five or more of nine Justices on the Supreme Court as mandated by the Constitution.”

Bloomberg News first reported on the suit, which challenges Cruz’s standing because he was born in Canada to an American mother.

The suit argues that the constitutional mandate that the president must be a “natural-born citizen” has never been settled in court and warned that the “mounting questionings crescendo” must be settled as soon as possible. It goes on to note the “persistent doubt” about President Obama’s eligibility.

In his closing, Schwartz warns that the failure to hear the case could amount to another Bush v. Gore situation, where a contested election ended up in the hands of the Supreme Court.

Donald Trump has repeatedly questioned Cruz’s eligibility for the White House in the run-up to the Iowa caucuses, on Feb. 1. The two sparred over the issue during Thursday night’s debate, with Trump warning that the threat of similar lawsuits could jeopardize the Texas senator's bid.

But Cruz shot back by arguing that by the most extreme “birther” theories, Trump himself wouldn’t be eligible because his mother was born in Scotland.

Critics have also filed a suit in Florida questioning Marco Rubio’s eligibility, arguing that he’s ineligible because his parents were both not citizens at his time of birth in Miami. Rubio’s lawyers rebutted that argument in a legal filing this week.

From the Los Angeles Times: Is Ted Cruz a 'natural born Citizen'? Not if you're a constitutional originalist.

I want to walk through this article - slowly - my dual credit classes this week and next because it perfectly illustrates what I want you to write about this semester: The conflict over constitutional interpretation.

I posted previously about the issue of whether Senator Cruz's birth in Canada means he cannot be president because he is not a "natural born citizen" as required in the Constitution. According to this author, the answer depends on how one interprets the Constitution. And ironically, the way the senator interprets it is the one that says he is not.

- Click here for the article.

There are three leading theories of how to interpret the Constitution today. One is textualism: the Constitution means what its words say. The historical context of the words is important when a modern plain meaning is not self-evident. A second theory, adopted by many liberals, relies on a “living Constitution”: the Constitution means what is most consistent with fundamental constitutional values as applied to present circumstances. The third theory, championed by many leading conservatives, is originalism: The Constitution means what ordinary people would have understood it to mean at the time it was ratified, which is 1788.

Under either a textualist or a “living Constitution” theory, Cruz is a “natural born Citizen,” eligible to be president; under an originalist view, however, he isn't. It's the conservative theory that would exclude the conservative Cruz from presidential eligibility.

To an originalist, a “natural born Citizen” is a person who is a citizen of the United States under “natural” principles of law in 1788. Two such principles were then in play in the U.S. Jus soli — the law of soil — was the principle that a child was subject or citizen of the sovereign who ruled the land or seas on which the child was born. Jus soli was viewed as a part of the common law of England, which was adopted by the American states. Jus sanguinis — the law of blood — held that a child's citizenship flowed from the parents' allegiance, regardless of place of birth. This principle was prevalent in continental Europe, and in England it was the basis for an exception to jus soli for children born there to foreign ambassadors.

The principle of jus sanguinis in 1788 applied to patrilineal descent only: A person born in a foreign country was viewed as a “natural born Citizen” of his or her father's country. However odious it seems today, a child born of a woman whose citizenship was different from her husband's — much rarer then than today — could not be a “natural born Citizen” of the mother's country. That idea wasn't even considered until 1844 in Victorian England.

The upshot is that to an originalist, someone like Cruz — born in a foreign country (and therefore not a natural born citizen of the United States by jus soli) and to a Cuban citizen father (and therefore not a natural born citizen of the United States by jus sanguinis ) — is not eligible to be president.

Update: Harvard scholar: Ted Cruz's citizenship, eligibility for president ‘unsettled’

A noted legal scholar sees merit in the above argument.

A few major court cases related to the Second Amendment

Attention DHS dual credit students - we will walk through these cases, and the laws they challenge, at some point in class as a way to see how the interpretation of the Constitution can change over time.

This list is hardly comprehensive, but its intended to help students get an idea about how the court has interpreted and reinterpreted Second Amendment rights - as well as issues indirectly related to them - over history. I pulled these from various sources, but the Wikipedia page on firearms case law is especially useful.

- Click here for it.

Here are brief summaries:

- United States v. Cruikshank. (1875) This case was primarily about the applicability of the Bill of Rights to the states. See: the Colfax Massacre and the Enforcement Act of 1870. Prior to the 14th Amendment, it only limited the national government. The text of the amendment suggested that the now citizens of the national government are protected from the actions of their state governments as well. The Supreme Court disagreed. It could not protect the nationally defined Second Amendment rights of African-Americans from actions of the states or private citizens. If they wanted to restrict constitutionally defined rights, they could.

- Presser v. Illinois (1886) The Supreme Court upheld an Illinois law limiting the ability of individuals to form their own militias, and to parade and drill with arms did not violate the national Second Amendment. They considered the Second Amendment to be an individual right. This allowed for the limitation for individual militias.

- United States v Miller. (1939) This was a constitutional challenge to the National Firearms Act of 1934. The law required the registration of certain types of guns, as well as the payment of a tax. This was implemented by the IRS. The court ruled that the law was constitutional for a variety of reasons, most importantly because the guns affected were not used in militias and were not protected by the Second Amendment. Only military type weapons were protected.

- DC v Heller. (2006) This challenged the Firearms Control Regulations Act of 1975 and placed limits on the ability of residents to own and posses handguns - among other weapons - in their homes. Guns in the homes also had to be disassembled - or otherwise unusable. A five person majority ruled that this violated an implicit right to self defense, and that guns not traditionally used in militias could fall under Second Amendment protection. The dissent argued - among other things - that it was reasonable for local government to want to limit the availability of guns as a way of preventing crime.

- McDonald v. Chicago (2010) The Heller case only applied to the national government since DC is under the jurisdiction of Congress. McDonald was a challenge to a similar ordinance and by virtue of the same argument - that there was and implicit right to self defense in the Second Amendment, and it applied to the state and local government through the 14th Amendment.

Governor Abbott joins list of politicians calling for a convention to amend the United States Constitution

Looks like good material for the spring semester.

The Texas Tribune writes up his call here: Abbott Calls on States to Amend U.S. Constitution.
Here's a direct link to his full proposal: Restoring the Rule of Law with States Leading the Way.

He calls it the Texas Plan and its intended to reign in what he deems excessive activity by the national government, laws and regulations that interfere with the states. On page 4 of the document he proposes offering nine constitutional amendments.

I. Prohibit Congress from regulating activity that occurs wholly within one State.

II. Require Congress to balance its budget.

III. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.

IV. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.

V. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.

VI. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.

VII. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.

VIII. Give state officials the power to sue in federal court when federal officials overstep their bounds.

IX. Allow a two-thirds majority of the States to override a federal law or regulation.

These will be worth considering independently over the course of the semester. I've also intended - at some point - to summarize the lawsuits Abbott filed against the national government when he was Attorney General. I have a hunch there is a strong relationship between the subject of those lawsuits and these proposed amendments.

Not everyone is on board - including some fellow Republicans. The Texas Tribune article concludes with some cautionary notes:

Critics of the convention approach say the constitutional rules governing a meeting of the states could allow for a "runaway convention," in which an unlimited number of amendments could be offered, potentially creating drastic changes to the U.S. Constitution. Tea Party groups opposed Perry's 2011 proposal on similar grounds.

Konni Burton, now a Republican state senator from Colleyville, told the Fort Worth Star-Telegram that year that such a convention could allow "anyone to offer up any number of amendments... based on their own ideology and interests, which could ultimately radically change our Constitution." At the time, she was speaking on behalf of the NE Tarrant Tea Party.

Abbott insists those fears are unfounded. His policy paper argues the Constitution "leaves it to the states to limit the scope of the convention." And even if additional amendments were offered, he writes, "none of the delegates' efforts would become law without approval from three-fourths of the states."

It concludes with a quote from Senator Cruz that ties this effort into an originalistic view of the Constitution. I'm working on written assignments that will dig into the different ways that the Constitution is interpreted.

As Abbott was preparing to unveil his proposal on Friday, his protégé in the attorney general’s office, presidential contender Ted Cruz, was pledging to push for “quite a few” constitutional amendments of his own if elected. Speaking with reporters while campaigning in Iowa, the U.S. senator from Texas said a balanced budget amendment is among the add-ons the country most critically needs.

Cruz, the former solicitor general of Texas, went on to reiterate his calls for constitutional amendments that would impose term limits for members of Congress and justices on the U.S. Supreme Court. He has also proposed a constitutional amendment that would leave it to state legislatures to define marriage.

“There are many more amendments we need, in part because the federal government and the courts have gotten so far away from the original text and the original understanding of our Constitution,” Cruz told reporters after a stop in Webster City, Iowa.