What The Debate Over Judges Is Really About

by John Hawkins | June 10, 2005 12:06 pm

Charles Krauthammer[1] puts his finger on what we should be really debating when we debate these judicial nominations: how they think and decide. Instead their opinions are over-simplified and then given code-words to make them sound so terrible. Since few people are going to actually read what these judges have written, we end up debating caricatures instead of reality.

The real question is never what judges decide but how they decide it. The Scalia-Thomas argument was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest.

It was about what the Constitution’s commerce clause permits and, even more abstractly, who decides what the commerce clause permits. To simplify only slightly, Antonin Scalia says: Supreme Court precedent. Clarence Thomas says: the Founders, as best we can interpret their original intent.

The Scalia opinion (concurring with the majority opinion) appeals to dozens of precedents over the past 70 years under which the commerce clause was vastly expanded to allow the federal government to regulate what had, by the time of the New Deal, become a highly industrialized country with a highly nationalized economy.

Thomas’s dissent refuses to bow to such 20th-century innovations. While Scalia’s opinion is studded with precedents, Thomas pulls out founding-era dictionaries (plus Madison’s notes from the Constitutional Convention, the Federalist Papers and the ratification debates) to understand what the word commerce meant then. And it meant only “trade or exchange” (as distinct from manufacture) and not, as we use the term today, economic activity in general. By this understanding, the federal government had no business whatsoever regulating privately and medicinally grown marijuana.

This is constitutional “originalism” in pure form. Its attractiveness is that it imposes discipline on the courts. It gives them a clear and empirically verifiable understanding of constitutional text — a finite boundary beyond which even judges with airs must not go.

And if conditions change and parts of the originalist Constitution become obsolete, amend it. Democratically. We have added 17 amendments since the Bill of Rights. Amending is not a job for judges.

The position represented by Scalia’s argument in this case is less “conservative.” It recognizes that decades of precedent (which might have, at first, taken constitutional liberties) become so ingrained in the life of the country, and so accepted as part of the understanding of the modern Constitution, that it is simply too revolutionary, too legally and societally disruptive, to return to an original understanding long abandoned.

And there is yet another view. With Thomas’s originalism at one end of the spectrum and Scalia’s originalism tempered by precedent — rolling originalism, as it were — in the middle, there is a third notion, championed most explicitly by Justice Stephen Breyer, that the Constitution is a living document and that the role of the court is to interpret and reinterpret it continually in the light of new ideas and new norms.

This is what our debate about judges should be about. Instead, it constantly degenerates into arguments about results.

The dishonest thing is that most of these politicians who are hurling accusations at these judges are lawyers. They know better. But they are willing to take a small part of a decision out of context and then accuse a judge they don’t like of extreme views “out of the mainstream.” Such dishonesty is disheartening, but not unprecedented in our nation’s history. If we truly had a disinterested press, it would be their job to throw some light on what these judges have actually written instead of just pasting in opposing quotes like the debate was some tennis match with no way of finding out the essence of what these judges have argued.

This content was used with the permission of Betsy’s Page[2].