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To be hopeful in bad times is not just foolishly romantic. It is based on the fact that human history is a history not only of cruelty, but also of compassion, sacrifice, courage, kindness. What we choose to emphasize in this complex history will determine our lives. If we see only the worst, it destroys our capacity to do something. If we remember those times and places — and there are so many — where people have behaved magnificently, this gives us the energy to act, and at least the possibility of sending this spinning top of a world in a different direction. And if we do act, in however small a way, we don’t have to wait for some grand utopian future. The future is an infinite succession of presents, and to live now as we think human beings should live, in defiance of all that is bad around us, is itself a marvelous victory. – Howard Zinn


The Problems With Originalism
Ken Levy is an associate professor of law at Louisiana State University.

MARCH 22, 2017

At Judge Neil M. Gorsuch’s confirmation hearing on Monday, Senator Dianne Feinstein, Democrat of California, started the ball rolling by remarking that she found his “originalist judicial philosophy to be really troubling.” Troubling it is.

Originalism is just one of the theories that Judge Gorsuch shares with the late Justice Antonin Scalia; another is its closely related cousin, textualism. Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.

The main motivation for both theories is to limit judicial discretion. As Justice Scalia argued, if judges are not bound by words and history, they will inevitably exceed the limits of their judicial authority and, like “activists” or “super-legislators,” make the Constitution say whatever they want.

But Justice Scalia failed to realize that textualism is actually self-undermining. Nowhere does the Constitution explicitly state that textualism, no less originalism or any other method, is the correct theory of constitutional interpretation. Justice Scalia also failed to realize — or at least admit — that textualism and originalism rarely determine a unique outcome for constitutional questions.

The meanings of many words and phrases in the Constitution are not at all obvious. Examples include “right,” “unreasonable,” “probable cause,” “due process,” “excessive,” “cruel and unusual” and “equal protection.” Even if we could find clear definitions of these terms in a dictionary, current or historical, applying these definitions to cases that the founders did not anticipate only expands the range of ambiguity (and therefore interpretive possibilities).

The founders would no doubt sympathize. Because they used flexible, open-ended language like “cruel and unusual” without explaining exactly what they meant, it seems clear that they were deliberately inviting future generations to interpret and reinterpret these words — the very opposite of what textualists and originalists propose.

The founders were not dummies; they knew that society would evolve in unforeseeable ways — morally, socially, politically, technologically — and that this inexorable evolution might well bring about unforeseeable applications of the same words. For example, instead of using the imprecise phrase “cruel and unusual” to lock in any particular punishment (like the death penalty), it stands to reason that they meant it to lock out whatever punishments future generations deemed unconscionable. So true originalism — genuinely following the founders’ intent — requires us moderns to interpret constitutional language in light of our own, not their, moral and linguistic norms.

Contrary to Justice Scalia and his many disciples, there is a third way to interpret the Constitution, beyond textualism (and originalism) and pure subjectivism: principled pragmatism. Principled pragmatism says that judges should consider not only the constitutional language as the ratifiers interpreted it but also the constitutional language as we moderns interpret it, the structure of the Constitution as a whole, the overall purposes of the Constitution as stated in its preamble and — yes — the public policy consequences of each possible decision. Once these additional factors are taken into account, they may still point in the same direction as the ratifiers’ intent. But they may also point in a very different direction.

Consider Brown v. Board of Education (1954), a case in which the Supreme Court was confronted with the question whether it should continue to follow its decision in Plessy v. Ferguson (1896). The Plessy court had held that providing “separate but equal” public schools for African-American students was consistent with the equal protection clause of the 14th Amendment. If the Brown court had considered only the text of the equal protection clause as it was understood by the ratifiers (the 39th Congress), it would have had little choice but to affirm Plessy. After all, as far as the ratifiers were concerned, African-American public schools could be just as good as white public schools.

But this decision would not have been correct. By 1954, it was clear that, because of Jim Crow and unequal funding, African-American public schools were markedly inferior to white public schools. So genuine adherence to the equal protection clause required the court to abandon rather than follow the ratifiers’ understanding and finally cease their practice of “separate but equal” for public schools.
Despite the serious problems with textualism and originalism, we can expect to hear Republicans on the Senate Judiciary Committee champion these theories in their attempt to send Judge Gorsuch to the Supreme Court. But Democrats should make clear that neither theory is prescribed by the Constitution or reflects a convincing picture of the founders’ intent. Nor, in the end, do they prevent the judicial activism that Justice Scalia supposedly abhorred. On the contrary, they are nothing more than thinly veiled disguises for modern political conservatism.

reprinted from The New York Times