Sunstein on Originalists Who Like Non-Originalist Precedents That Ignore history

October 20th, 2012

Mike Ramsey links to a piece from the now-unpresidented (you see what I did there!) Cass Sunstein on areas where conservatives like certain precedents that ignore the original understanding of the Constitution.

This builds on my post considering what libertarian or conservatives originalists should do about precedents that are favorable to their views, but not consistent with text and history.

One such big area is Affirmative Action (I’ve written about the Constitutional Accountability Center’s originalist brief in Fisher here and here).Sunstein writes:

Last week, the Supreme Court heard oral arguments involving the constitutionality of an affirmative-action policy at the University of Texas. Here is the great paradox: None of the conservative justices asked a single question about whether affirmative-action programs are consistent with the original meaning of any provision of the Constitution.

This failure to consider history is long-standing. Justices Scalia and Thomas, the court’s leading “originalists,” have consistently argued that the Constitution requires colorblindness. But neither of them has devoted so much as a paragraph to the original understanding. As conservative Ramesh Ponnuru, liberal Adam Winkler and others have suggested, their silence is especially puzzling because for decades, well-known historical work has strongly suggested that when passed by Congress in 1866 and ratified by the states in 1868, the 14th Amendment did not compel colorblindness.

Maybe this question can be answered. Maybe current affirmative-action programs, including theone at the University of Texas, are meaningfully different from the measures enacted by Congress after the Civil War. But to invalidate current programs, constitutional originalists have to say more. They must show that such programs are fatally inconsistent with the original understanding. Maybe they can do this, but remarkably, they haven’t even tried.

How can we explain this conspicuous lack of historical curiosity? A tempting answer would point to the Constitution’s text, which bans states from denying any person the “equal protection of the laws.” Perhaps any effort to consider race is, by definition, inconsistent with this requirement. Yet that argument is hopelessly unconvincing. As the historical debates reveal, whether colorblindness is required by a commitment to “equal protection” is the question, and the words themselves don’t provide that answer.

And, Sunstein identifies other areas where modern Supreme Court doctrine yields results libertarian and conservatives may like, but inconsistent with the original understanding of the Constitution.

This is far from the only area in which they have been doing so. For example, many conservatives believe in strong protection of property rights. They want courts to use the Fifth Amendment’s takings clause to strike down regulations that interfere with property rights — even though some leading historical accounts suggest that when originally ratified, the Fifth Amendment was limited to actual physical takings of property, and didn’t restrict regulation at all. Here too, Justices Scalia and Thomas have made no serious inquiry into the original understanding.

Conservatives tend to believe the First Amendment requires courts to invalidate many restrictions on commercial advertising. But until 1976, the Supreme Court didn’t believe that the First Amendment protected commercial advertising at all. It would take a lot of work to establish that the constitutional protection that some would give to commercial advertising can be traced to the original understanding in 1791.

 In the conclusion, Sunstein finds that this disparity is likely premised on the fact that conservatives merely view the Constitution that agrees with their ideologies.
In short, the constitutional judgments of many influential conservatives show an uncomfortably close overlap, not with the original understanding of those who ratified the Constitution, but with the political understandings of the Republican Party in 2012. Who, then, believes in the living Constitution?