Wash. Post used false comparisons to differentiate Alito from Scalia, Thomas
SUMMARY: The Washington Post used false and misleading comparisons to report that, during his recent Supreme Court nomination hearings, Samuel A. Alito Jr. "did not embrace some of the most controversial legal views" of conservative Supreme Court justices Antonin Scalia and Clarence Thomas.
In a January 13 article, Washington Post staff writer Charles Lane used false and misleading comparisons to report that, during his recent Supreme Court nomination hearings, Judge Samuel A. Alito Jr. "did not embrace some of the most controversial legal views" of conservative Supreme Court justices Antonin Scalia and Clarence Thomas. Lane suggested that Alito distanced himself from strict constructionism, a method -- which Lane wrote falsely that Scalia has embraced -- of "interpret[ing] only the literal text of statutes and the Constitution." Lane also suggested that Alito distinguished himself from Thomas by placing "much greater emphasis on precedent" in determining whether to overrule a previously upheld constitutional principle.
In fact, while Alito explicitly rejected strict constructionism as a theory of constitutional interpretation, so has Scalia: Both embraced the conservative -- and controversial -- principle of originalism in constitutional interpretation, which holds that the Constitution should be interpreted based on the original intent of the drafters. Moreover, like Alito, Thomas emphasized the importance of precedent during his 1991 hearings, but Thomas then largely dismissed the concept of stare decisis (respect for legal precedent) as a guiding principle once he was confirmed to the Supreme Court. In other words, neither of the examples cited by Lane -- of Scalia's purported embrace of strict constructionism or Thomas's rejection of precedent -- offer any support for Lane's assertion that Alito "did not embrace some of the most controversial legal views" of Scalia or Thomas.
From Lane's January 13 Post report, which suggested that both Alito and recently confirmed Chief Justice John G. Roberts Jr. differentiated themselves from Scalia and Thomas during their respective nomination hearings:
[L]ike Roberts, Alito did not embrace some of the most controversial legal views of Scalia and Thomas.
Scalia has said that the Supreme Court should interpret only the literal text of statutes and the Constitution, and not search historical records for evidence of their authors' intent.
But Alito said: "I'm not one of the judges who thinks that ... you should never look to legislative history. I think it has its place."
And Alito put much greater emphasis on precedent than does Thomas, who has called for overruling decisions that clash with his view of the Constitution's literal meaning.
Stare decisis, the notion that past decisions generally should be followed to avoid legal instability, "is not an inexorable command," Alito said. But long-standing decisions such as Roe [v. Wade] should not be overturned absent some "special justification," he said.
By reporting that Scalia believes that "the Supreme Court should interpret only the literal text of statutes and the Constitution," Lane falsely suggested that Scalia is what constitutional scholars call a "strict constructionist," whereas Alito is an "originalist" who seeks to determine the original intent of a constitutional provision's authors. In fact, the available evidence suggests that both Alito and Scalia embrace originalism as the appropriate method of constitutional interpretation.
As the Post reported on March 15, 2005, Scalia himself has said that he is an "originalist" and "not a strict constructionist." Moreover, a January 13 New York Times article noted that Alito appeared to distinguish himself from Roberts -- not Scalia -- by espousing originalism:
On one of the few occasions Judge Alito spoke about his general approach to the law, he embraced a mode of constitutional interpretation, originalism, often associated with Justices Scalia and Thomas.
"In interpreting the Constitution," Judge Alito said Wednesday, "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption."
Chief Justice John G. Roberts Jr., by contrast, described a more eclectic and dynamic approach to constitutional interpretation at his confirmation hearings in September. Justice Sandra Day O'Connor, whom Judge Alito will replace if he is confirmed, has also embraced a variety of approaches.
"Judge Alito sounded less amenable to constitutional evolution than Roberts," said Cass R. Sunstein, a law professor at the University of Chicago who studied Judge Alito's dissenting opinions at the request of Senator Edward M. Kennedy, Democrat of Massachusetts, but has taken no position on the nomination. "He is someone who is more likely to vote with Justice Scalia and Justice Thomas than Justice O'Connor."
As the Times noted on September 16, 2005, Roberts disavowed originalism during his September 2005 confirmation hearing:
Over three days of testimony, between declining to answer questions on specific cases and legal issues, Judge Roberts made clear that his approach to interpreting the Constitution is more varied and flexible than the originalism subscribed to by Justices Clarence Thomas and Antonin Scalia. President Bush has singled them out as models for the sorts of justices he planned to appoint.
"I think the framers, when they used broad language like 'liberty,' like 'due process,' like 'unreasonable' with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages," Judge Roberts said Wednesday.
He said he would consider not only how the framers of the Constitution understood those words, but also how courts have interpreted them and how they apply to evolving societal conditions.
That approach disappointed some conservative legal scholars.
"He is not in the mold of Scalia and Thomas," said Steven G. Calabresi, a law professor at Northwestern and a chairman of the Federalist Society, the conservative legal group. "They have more of a theory of how to decide cases, and they look to text and original meaning. Roberts will look at text and original meaning, but he will also look to precedent and the consequences of his decisions."
The contrast Lane drew between Alito and Thomas is also misleading. It is true that the respect for precedent that Alito pledged during his nomination hearings is in stark contrast to the lack of adherence to precedent that Thomas has displayed on the Supreme Court -- Scalia noted in 2004 that Thomas "does not believe in stare decisis, period." But Lane ignored a more apt comparison of Alito and Thomas regarding precedent: how Alito's comments on the subject compare to what Thomas said during his 1991 nomination hearings.
Like Alito, Thomas emphasized the importance of respect for precedent, or stare decisis, several times during his hearings, as the weblog TPMCafe has documented:
"When you have a precedent that has been relied on in the development of subsequent Supreme Court law, it is not one that was simply there and has never been relied on by the Court, but I think that you would give significant weight to repeated use of that precedent and repeated reliance on that precedent. I think that is very important." [Response to a Question by Senator [Patrick] Leahy [D-VT], 9/16/91]
"Stare decisis provides continuity to our system. It provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept." [Response to a Question by Senator [Strom] Thurmond [R-SC], 9/10/91]
The Washington Post is just as much a fascist rag as the Washington Times.
What are our chances for letting any "sunshine" into our political arena if not for these internet forums? Our mainstream media sources have proven to be whores for the wealthy recipients of the irresponsible Bush tax cuts. What chances do we have for future FAIR elections that are not riddled with misinformation with no avenue for mass transmittal of factual debate? Thank you Media Matters, you are really FOR America.
is in full effect . . . To head off even a HINT of a filibuster in regard to Alito, today's order of business from the WH to all their propaganda, er, press outlets is: paint Alito in as favorable a light as possible.
Wait, Media Matters, something needs to be clarified.
To the extent that this article in part focuses on the differences between "strict construction," "textualism" and "originalism," and the misuse of those terms on the part of the media, well, I feel I must point out something.
This article says . . . embraced the conservative -- and controversial -- principle of originalism in constitutional interpretation, which holds that the Constitution should be interpreted based on the original intent of the drafters.
Several points:
1) Originalism as a method of interpretation is not limited to "original intent." There are other kinds of originalism, such as "original understanding" and "original meaning." Original intent has largely fallen out of favor with even many conservative Constitutional scholars, as it focuses on the indiscernable "subjective" intent of the Founding Fathers, something that, even if it COULD be determined, wouldn't help much, considering that the Founding Fathers often disagreed with one another, and ratified language with different "intents" as to a clause's operation. Original meaning, on the other hand, is a method of determining OBJECTIVELY what words MEANT at the time they were written - through dictionaries, common use at the time, etc. An original meaning originalist would argue that such DENOTATIONS must control Constitutional interpretation, regardless of the intent of the people who wrote them.
2) Scalia himself has not only explicitly rejected Original Intent, but purports to abide by Original Meaning. My personal analysis of his rulings, however, lead me to believe that he's being somewhat disingenuous, for when he discovers an ambiguity in the Original Meaning, he tends to look to history and culture, and often Original "Understanding," which although technically different from "Intent" still leads him to try to discover something "subjective" about the people who wrote words, rather than looking purely at the words themselves.
3) Although Originalism is often invoked by conservatives, Originalism itself is a neutral method of analysis, and can easily lead to "liberal" decisions. Coinsider, for instance, arguments against the criminalization of flag burning. Many originalists maintain steadfastly that either the original intent, understanding or meaning of the first amendment guarantee the right to burn the flag, and liberals, just as much as conservatives, often invoke the intent, understanding or words of the Founding Fathers to justify their positions.
Crib:
As usual you give good analysis, but CONTEXT is important as well.
Our Founders were great men, who wrote a great document, but in the time in which they lived, their REALITY was their 'norm'.
Their REALITY was that of landowners having all the say-so about governance. Women were completely second class citizens, with no right to vote or own property. Slaves were accepted, and garnered 3/5 of a person status ONLY because their numbers were needed to give southern states better standing in the "representative" government mold they were forming. Our Founders, bless their souls, were rich white men, and that's the reality from which they wrote and thought.
Only AFTER the Civil War, when the 14th Amendment was written bestowing EQUAL PROTECTION under the LAW, was it acknowledged that "original intent" was deeply flawed from the standpoint of WHO should participate in America's potential.
For this reason, Conservatives talking about "ORIGINAL" anything, as it applies to the Constitution, is a wish to return to those good old days of yesteryear, when even in America, the rich white men owned the property, made the rules, and designated all others to second-class (or lower) status.
"Stare decisis", or PRECEDENT, acknowledges that America has come a long and hard way towards being a nation TRULY free, TRULY inclusive, and open to opportunity for ALL. These strides in Civil Rights were opposed often violently by those who wished to perserve the status quo, and those who prefer having an American Aristocracy number MANY even today.
The Republican Party, the NeoCons, the Federalist Society, the Heritage Foundation, the various Fundamentalist Religious Right organizations, ALL have similar goals and wishes for America to regress to those times before Civil Rights, when it was clear who the "chosen" were, as far as the ruling class was concerned.
Recent "code words" tell the tale; "Quotas", "preferrence", and "special rights" are used to oppose reversing "traditional" American structure. Our "QUOTA" for ownership of perperty was determined by a "100% preferrence" for white males. "Special rights" to determine how all others would live were held by the most wealthy of these white males, and they used their power to keep all others down ... women, people of color, those who were "different" like gays ... and to preserve the 100% preferrence they enjoyed.
When Affirmative Action came along, the white males were especially angry and vocal, hating the loss of the preferrence they relied upon, felt like they NEEDED in order to survive, and felt ENTITLED to ... BY ORIGINAL INTENT.
Today, only a Jurist who recognizes that our advances in Civil Rights are PROGRESS, which should be supported and even expanded, is worthy to sit on the bench. Those who long for yesterday are dinosaurs of the worst paternalistic monarchy-worshipping elitists.
Alito is such a dinosaur, anxious to undo the "changes" of the past half century that he view as destructive to society, this "giving equal rights" stuff to the undeserving, when it is so clear that the founders wished the land-owning wealthy white guys to be in charge.
This whole Rightwing regressive notion is based on FEAR, of course. FEAR of change, FEAR of the unknown, FEAR of having to compete having lost their traditional preferrence, FEAR of losing control.
Bush was elected based on FEAR. Alito, if confirmed, will rule from FEAR. And he will rule AGAINST that which he fears: Change, equality, loss of power for the elites. Will such regression be "GOOD" for America? The elites think so, the Republicans believe it, Bush is determined to foist it on us. It won't be so good for women, minorities, workers, or those who love democracy and freedom.
Hiya Tex!
I love your posts, and I think you know that we see eye to eye on almost all of the issues addressed by Media Matters. To avoid any confusion, I was not advocating originalism as a proper methodology. I was merely holding Media Matters to the same standards they so nobly (and mostly successfully) hold others. To the extent that this article claims that the Wash. Post misused and misinstructed people on terms like "originalism," I just feel it's important that they correct what were indeed obvious errors by doing so with "the truth, the whole truth, and nothing but the truth."
You are very right to highlight that many conservatives (probably more aptly termed "reactionaries") invoke various forms of Originalism as a pretext not for enforcing "intent," "meaning" or "understanding," but for enforcing Original "culture," with all its anachronistsic evils - slavery, discrimination, etc. - that so clearly contradict any reasonable person's interpretation of the Constitution's words.
Isn't it fascinating that very early abolitionists - we're talking 18th Century abolitionists - pressed the Supreme Court to interpret the Constitution through "plain meaning textualism," which they argued could not possibly sanction slavery, since it mentioned the word nowhere, but spoke in clear terms of limited powers and retained natural rights? "Intent" as an analytical tool was devised, in part, as a response to such difficult-to-ignore "textualism," and arguments that what they law says doesn't really matter as much as what those who wrote it intended for it to say. In other words, Original Intent - now so closely linked to "strict construction" and even "textualism," was actually the original form of what conservatives now deride as Judicial Activism! :)
Just so you know, I LOATHE Original Intent - for all the reasons you cite. As a methodology, it is analytically flawed, insidious and dangerous. Original Meaning, however, resonates somewhat with me, though I am not an Originalist. Consider the following argument: If a 1803 law still on the books reads, "It shall be unlawful to bring a pig into a public park," that law could not reasonably be interpreted today to mean that police officers are banned from public parks just because the word "pig" has become a common word for "police officer" in today's lexicon. It is the "Original Meaning" that must be followed. Original Meaning focuses on WORDS and OBJECTIVE meaning - not intent or culture - and actually can be useful tool for progressives today.
Original Meaning Originalists would agree with you, Tex, that the 14th Amendment's protection of "persons" protects exactly that - ALL PERSONS - because of what the word "person" meant at the time of the 14th Amendment's ratification.
As for me, I am working on a law school thesis right now on Constitutional Methodology, and I personally believe in using some variant of Original Meaning as a starting point from which to extrapolate universal principles - principles which have to be revised and paraphrased for continually evolving times, but whose essences are eternal.
Oh, one more thing....
Here's my favorite quote - taken directly from Constitutional case law - concerning the methodology of interpreting a broad, rights-based document like our Constitution. This comes from a little-known early 20th Century Justice named Joseph McKenna, who wrote the decision for the Court in the case of Weems v. U.S., 217 U.S. 349 (1910).
"Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction."
crib:
As usual, an excellent response. I was not so much criticizing your post, as emphasizing that however great our Constituion is and HAS BECOME, it was "originally" written in a context of elitism, exclusion, and systemic discrimination.
"Original Intent" was for slaves to count as 3/5 a vote. If you reject THIS, then you must reject the notion of interpreting the "strict meaning of the words AND intent" of the founders.
Does this imply that the Constitution is MEANINGLESS, then, and of no use? Not at all. OVER THE YEARS, and with many missteps, the Constitution has been refined and, yes, IMPROVED.
Brown and Roe enforced rights that were missing from American practice for a hundred years following the Civil War, even though they were "instilled by our creator". Evil or scared men wish to retain their power by depriving it of others, it's that simple.
Over the 200+ years, our Constitution has been a "LIVING DOCUMENT", instead of commandments written in stone, unchangeable and timeless.
If one accepts the 14th Amendment, one cannot deny that the Constitution is indeed a "living document", because it can grow and reflect the enlightenment of changing times. Yet, most on the rightwing SNEER at the notion of a "living document" (which draws into question their entire rationality).
Conservatives clinging to an "original" view are always trying to UNDO progress. They wish to return women to the control of their men (abortion, notification, etc.). They wish to undo equal employment opportunity (affirmative action). They wish to limit voting rights (Scalia points out that the Constitution HAS NO RIGHT TO VOTE specifically mentioned, saying to the people, it's not a RIGHT, it's a PRIVILEGE that can be taken away).
On and on, conservative "original" advocates wish to undo progress, equal treatment, and RIGHTS recognized as basic, in order to return to an elitism which they believe for whatever reason will be "best" for America. It's certainly BEST for their friends, who wish an empirial presidency (as long as it's a Republican), for ordinary people to be unable to redress grievances with corporations through the use of our courts, for business owners to be able to discriminate at their discretion, etc.
A Conservative Justice can be depended upon to find "original" justification for all these regressive changes in our society.
The government should be able to spy indiscriminately on any citizens (ELITIST perogative), yet a citizen should not be allowed to sue a corporation (no individual rights). The government should dictate reproductive behavior of women (ELITIST perogative), yet a citizen's VOTE cannot be counted in Florida (no individual rights). The list goes on an on of governmental INTRUSION which is desired, while individual RIGHTS are discounted.
I am encouraged by recent polling results. It seems Americans are finally waking up to what it MEANS to live under Republican elitism. Constant war against an unspecifiable enemy ... in fact, a war against a nebulous "ISM" that cannot, by definition, ever END. War started on the basis of LIES. War in which our troops are not supported by the Administration with armor and other necessary life-saving equipment. War that celebrates torture.
Unfettered greed from corporations, with skyrocketing prices in heating oil, gasoline, health care, and consumer goods, while salaries stagnate. No new jobs. Millions of jobs LOST FOREVER, replaced by jobs that pay a fraction. Americans are losing ground, except of course the very wealthy, who are becoming much wealthier.
A president who will lie to us, spy on us, excuse corruption in his own administration, punish any whistleblower who dares expose TRUTH about this administration, and scoff at THE LAW.
Taken individually, the acts of this adminsitration are a nightmare. Taken together, it's nothing short of a hostile coup, a junta which has ousted the American People from their own governance, and handed it over to greedy power-mad oppressors.
Are a JOY to read
FACISM SUCKS!