Looking for a strict constructionist.

Hugh Hewitt, who likes a lot of my "Mellowing on Miers" post, has a problem with my observation that Bush is failing to meet his campaign promise to appoint justices in the mold of Scalia and Thomas. He writes:

When Bush said "like Scalia or Thomas" many people heard many things. I think it is very safe to say that the vast majority of American voters did not hear [as Althouse puts it] "justices committed to a particular theory...of textualism or originalism." I think they heard "justices who aren't making stuff up," or "justices who aren't full of themselves," or "justices who will not impose same sex marriage or overturn every juvenille death penalty in the land or import EEC law on a whim."

I think they heard "results," and if I am right, Bush has not only not broken his promise, he may be well on his way to fulfilling it twice and hopefully more times over.

Stephen Bainbridge then takes issue with Hewitt. He quotes a 1999 "Meet the Press" interview with Bush, where he says that in looking for a Supreme Court justice "the most important view I want to know is are you a strict constructionist ....Will you strictly interpret the Constitution or will you use your bench as a way to legislate? ... will they strictly interpret the Constitution of the United States?" Bainbridge observes:

Contrary to what Hugh claims, there is no doubt in my mind that Bush expressly stated an intent to apply a litmus test - namely whether or not the nominee was committed to what Hugh calls a "committed to a particular theory"; namely, strict construction. In turn, strict construction is defined as:

... interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes.

In other words, a justice "committed to a particular theory" of strict construction would be an originalist or textualist.

Bush said he would appoint strict constructionists. That is the promise he made and the fire to which his feet should be held.

There's a funny thing about the way Bush kept saying he wanted someone like Justice Scalia and his repeated use of the term "strict constructionist": Scalia doesn't purport to be a "strict constructionist." Indeed, he goes out of his way to reject the term. Here's an excerpt from my notes on a speech Justice Scalia gave here at the UW Law School on March 15, 2001.

“What do we think we’re doing when we are interpreting the Constitution? … What is the object?”

“My school of thought is very much in the minority”— originalism, but it used to be orthodoxy: everyone believed it until 40 years ago.

people were not necessarily honest about how they did their originalism then, but they all professed to believe in it. There were “willful judges” then as there are now.

“They used to do it the honest way: they lied about it.”

The change is: people today don’t feel it’s “necessary to lie about it anymore.”

he prefers the old way, even with the lying: “hypocrisy is the beginning of virtue.”

the change has occurred very rapidly.

The 19th amendment, adopted in 1920: if they’d have thought like the majority thinks today, they wouldn’t have bothered amending the Constitution: they’d just have used the Equal Protection clause.

Nonoriginalists tout the “living Constitution.” For example, they’d find the death penalty violates “cruel and unusual punishment.” They want the Constitution to reflect the “evolving standards of a maturing society.” Scalia scoffs at the notion of a “maturing society”: it assumes that “every day in every way it’s getting better and better.” It’s “pollyannaish.” The Framers were concerned that future generations would do bad things: that’s why they adopted the Bill of Rights.

Here are the ways in which the notion of the living Constitution is defended:

It’s flexible.

“The Constitution is not an organism.” It doesn’t need flexibility in order to work: it won’t become brittle and break.

but it is not flexible to make more choices off-limits to democratic preference by identifying more rights.

it makes the Supreme Court the sole possessor of the power to change it: how is that flexible? “It is rigidity.”

[he fails to note that a right reserves decisionmaking for the individual: rights-making changes who gets the flexibility. You could end up with more flexibility even though you leave less flexibility to the legislature. Also fails to note how constitutional line-drawing may be about which democratic process gets more room to choose: state/federal.]

It’s good for liberals.

living Constitution vs. originalism is not about liberals vs. conservatives: “Conservatives distort the Constitution for their ends just as willingly as liberals.”

Consider the day the court came out with Romer v. Evans (which he called Romer v. Colorado) and BMW v. Gore (where he, amusingly, refrained from saying the respondent’s name). Romer produced a result liberals like and BMW produced a result that conservatives like. In both cases, people thought “it’s terrible so it must be unconstitutional. And the Court agreed.”

“I say a pox on both their houses.”

“This is an equal opportunity fallacy.”

It will lead to more freedom.

why is that even a good idea? maximum freedom is anarchy. You should want the right balance between freedom and order.

but why do people think the living constitution will lead to more freedom? it “will lead to what the current society wants.”

example: confrontation case with sexually abused child testifying over closed circuit TV. The living Constitution produced a restriction of rights but originalism would have protected the rights of the accused.

example: Apprendi, originalism led Scalia and Thomas to vote with those who protect the rights of the accused

It will make you happier.

living Constitution folks can always feel good because they always make the Constitution mean what they think it should mean. They can say after a day’s work that they feel great because they discover once again that the “Constitution means exactly what I thought it meant.”

the originalist comes home and feels bad. Scalia doesn’t like bearded, sandal wearing flag burners, but he had to vote on their side because he takes the first amendment seriously and a statute targeting flag burning (as opposed to burning anything—trash, leaves, etc.) is against speech. His hands were tied. “My philosophy ties my hands.” When he went to breakfast after deciding that case, his wife was scrambling eggs and humming the “Stars and Stripes Forever.” She’s more conservative than he is. He had to feel bad about the decision.

In this regard, he noted that he is not a “strict constructionist.” “I never say that.” He interprets the Constitution “reasonably.” To be a strict constructionist, you’d have to say that Congress could censor handwritten letters (they aren’t “speech” or “press”).

[I can’t help thinking that his originalism does make him feel good: the comfort of saying any sad effects are beyond my control, the satisfaction of feeling that I am the one who adheres to principle.]

So, in a sense, Bush didn't know what he was talking about when he pointed as Scalia as his model for a judge. "Strict constructionist" is more of a politician's term. Nixon used it pointedly. Who has the better of the argument, then, Hewitt or Bainbridge?