As the Senate prepares to question Judge Neil Gorsuch for possible appointment to the Supreme Court, my former colleague Eric Posner asks: “Is Gorsuch a Hamburgerian?” Posner thereby attempts to set up Gorsuch by associating him with . . . not really me, nor my scholarship, but a boogeyman of Posner’s imagination.
The version of my scholarship Posner presents to the world is almost unrecognizable: “Hamburger is anti-elite”; “Hamburger is anti-foreigner”; “Hamburger is anti-executive.” These views bear no resemblance to my scholarship or my personal opinions, and it therefore is necessary to state my views as they really are.
On this President’s Day there is a lot to criticize about the behavior of our current President. Although other Presidents have certainly not conducted themselves with dignity (think Bill Clinton), President Trump’s demeanor and decorum during his news conference was more a throwback to his days as a reality TV star than a performance befitting a head of state. Presidential dignity promotes the stability of our union.
And while other Presidents have told more consequential falsehoods (think “If you like your plan you can keep it”), few have made statements that are so transparently false at the time they are made, such as the President’s claim about the relative strength of his electoral college victory. Presidents must rely on their credibility to take unpopular and contestable actions in times of crisis and President Trump is in danger of squandering his.
Some of the President’s executive orders, like that on immigration, have been issued without sufficient deliberation and his remarks in their defense have been intemperate insults rather than measured criticisms of the substance of their rulings.
But the behavior of the President is no license for lawlessness and the violation of long standing political norms. Yet that is what some of his opponents have claimed with the support from intellectuals.
It has been reported that this term is shaping up to be one of the most liberal at the Supreme Court since 1969. Another report by Eric Posner shows that the justices appointed by Republican Presidents are agreeing less among themselves, while the justices appointed by Democratic Presidents remain a united bloc.
We should be cautious about reading this information as a trend. The case mix changes from year to year and thus there can be expected to be overall ideological variation from year to year depending on that mix and the justices’ idiosyncratic views. But there is no doubt that the country is moving left at least on social issues and the oldest adage about the Court’s decision-making is that it follows the election returns. Certainly, the expected creation of a right to same-sex marriage would be unimaginable without the rapid and dramatic shift in public opinion on the issue.
The more interesting question is why Republican justices tend to fracture while the Democrats stay united. The first reason is that Supreme Court opinions implicate not only ideology, but jurisprudential methodology and Republicans are more divided on jurisprudence.
I have written several posts on the constitutional amendment process, but I cannot let Eric Posner’s new piece for Slate magazine pass without comment. Eric’s piece is an excellent example of the conventional wisdom that the constitutional amendment process is too difficult – a wisdom that I believe is seriously mistaken.
Eric writes that “any proposal to amend the Constitution is idle because it’s effectively impossible” – because it is too difficult to amend the Constitution. But as I have argued before and with John McGinnis, the main reasons we do not see constitutional amendments are due to nonoriginalism. These reasons include:
1. It takes a consensus to amend the Constitution, and that consensus takes time to develop. But nonoriginalist courts judicially update the Constitution before that consensus has enough time to develop.
2. Some amendments are attractive only if the Court can be trusted to enforce them as written. But if the Court is nonoriginalist, then people may not trust the Court to enforce the amendments and therefore may not want to give the Court more power.
3. Since constitutional amendments are hard to pass, interest groups will often seek alternatives that are easier to achieve, such as packing the courts with people who will rewrite the Constitution to further the group’s vision. Once again, this will only happen if nonoriginalism is allowed.
4. Constitutional amendments often require compromises in order to secure a consensus. But if there are alternative mechanisms, such as judicial updating, interest groups will choose not to compromise and instead will seek to have judges appointed who share their vision.
Eric writes about his motivations for the course:
I have long been skeptical of originalism, and my interest in it is more sociological than intellectual. I hope to learn from this seminar why originalism is appealing to so many people (but mainly conservatives), and why it plays such an important role (at least, as a matter of rhetoric) in constitutional politics.
These are interesting questions. So let me take a crack at them. Why is originalism so appealing? And why is more appealing to conservatives?
This is a complicated matter, but here let me offer at least some ideas. Originalism has appeal both for internal reasons relating to the idea itself and for external reasons relating to the consequences of adopting it. The idea that a written law should have the meaning that it had at the time of its enactment seems extremely intuitive and part of how we understand legislation and other written enactments. The notion that a lawgiver would not know what his law meant – that it would have a meaning that he could not have known if he thought about it, but that depends on changes in values – seems extremely counterintuitive. It seems to be an obvious power grab by the interpreters, such as judges.
In my view, this intuitive reason primarily explains why originalism has a certain appeal across the spectrum and is why the ordinary person is usually an originalist.
The external reasons relating to the consequences explain why it is especially appealing to consevatives. Conservatives believe that liberal judges have changed the Constitution through interpretation. Thus, the consequence of nonoriginalism has been to undermine their political views. The combination of an intuitive nonpolitical reason explaining why a political result one dislikes is extremely powerful.
It is true that originalism does not always lead to conservative results. But the above appeal of originalism more than outweighs these disappointments — and these disappointments have the benefit of showing the conservative originalist that he is actually enforcing the Constitution, not his own values.
Over at Slate, Eric Posner has a piece attacking the D.C. Circuit’s Recess Appointment decision in Noel Canning. Posner writes:
But here’s the point. It defies belief that the founders intended to constrain recess appointments by using the word “the” rather than “a”, or by using the word “happen” rather than “exist.” If the founders had feared that the president would abuse the recess appointments power in order to create a tyranny, they would have made their intentions to constrain the president a bit more explicit.
In fact, we know next to nothing about what the founders intended because of the paucity of contemporary documents revealing their intentions. We can surmise that they wanted the president and Senate to share the appointments power but also that they recognized that the president might need to make appointments to keep the government running when the Senate was out of session. Both the court’s and the Obama administration’s readings of the clause are consistent with this general purpose, so it is idle speculation to draw on the original understanding to resolve the dispute.
The redoubtable David Skeel had an op-ed in yesterdaty’s Wall Street Journal: “A Nation Adrift From the Rule of Law.” It’s a bone-chilling must-read. Along the way, amidst horror stories of extra-legal bailouts and prosecutions, Skeel takes issue with the Eric Posner/Adrian Vermeule postmodernism-for-conservatives riff, which says that the rule of law is never worth a dang in a crisis and so why worry. Putting aside that “pushing the envelope isn’t the same thing as flouting the law,” one has to fear to crisis-induced lawlessness become the new normal. In support of this proposition, Skeel cites the Dodd-Frank Act. Hard to…