Constitutional Originalism: Needed Now More Than Ever

A debate has brewed over the fragile balance of the Supreme Court since the passing of Justice Antonin Scalia last February. Scalia was perhaps the most influential force for “constitutional originalism” of the past century, and the recent presidential election, which will likely influence the Supreme Court’s makeup for decades to come, has brought the clamor over judicial appointments to a crescendo. While pundits and the media speculate on the future balance of the Court and the impact of a Trump presidency on abortion access and marriage equality, a subtler question looms concerning the nature of executive, as opposed to judicial, constitutional interpretation.

Putting aside for a moment the question of Supreme Court nominations, I assert that it is categorically better to have a constitutional originalist in the Oval Office, as well as the judiciary, and that the engorgement of executive authority under the Obama administration set a dangerous standard which progressives will likely come to regret over the next four years.

Let me distinguish between two of the methods by which one can interpret America’s most important founding document. “Strict constructionism” takes perhaps the simplest approach: the literal meaning of the words in a law or the Constitution should be the sole factor in discerning their meaning. This method, however, is overly rigid, and for that reason Justice Scalia deviated from strict constructionism in favor of “constitutional originalism.”

His preference for “original meaning,” however, should not be confused with “original intent,” which is a more judicially activist interpretive method whereby the reader looks not at what the text of a law originally meant, but rather what Congress intended the law to mean – even if that supposed intention differs from the meaning of the text itself. Original intent was the distorted logic that brought us King v. Burwell, the Affordable Care Act case in which the Court ruled that although the text of the law stated that health-care tax credits should be made available only through an “exchange established by the state,” Congress had actually intended it to mean an “exchange established by the state or the federal government.” This was, in the words of Scalia’s dissent, “interpretive jiggery-pokery.” The original-intent method proceeds on, and fosters the idea that the meaning of a law should evolve as unanticipated circumstances emerge over time, thus contributing to the progressives’ favored notion of a “living constitution.”

In considering the courts, the importance of interpretive theory is self-evident, but it also affects the actions of the executive branch. There was a time when, to quote Alexander Hamilton’s Federalist No. 78, the interpretation of the laws was “the proper and peculiar province” of the courts. Sadly, that time has passed.

When confronted with denunciations of abuses of executive authority, defenders of President Obama’s legacy will often point to the fact that he has issued fewer executive orders than George W. Bush. That is correct, but misleading. The executive pen on the president’s desk has not sat idle for these past eight years. It has been hard at work signing executive memoranda, as opposed to executive orders. Unlike executive orders, executive memoranda are not formally numbered or tracked, but they achieve the same purpose: to direct federal agencies to take a specific action. By all accounts, President Obama holds the record for the most frequent use of this troubling executive power.

The relevance of judicial theory to the presidency results especially from the practice of executive rulemaking, or the expansion (or reduction) of a law’s scope. Congress delegates substantially to the executive branch in regard to the actual writing of the rules, regulations, memoranda, and bulletins that determine how laws are executed. In many ways, executive interpretations of laws have a more direct impact on Americans’ lives than interpretations by courts because they can occur without judicial review, which is slow yet more transparent to the interested public. Executive rulemaking is only constitutionally prudent, or respectful of the Constitution’s spirit, when the president respects the original textual meaning of the law Congress made. Accordingly, when executive rulemaking follows a living-constitution approach – in which a text is open to reinterpretation “as needed” – the separation of powers between the branches of government is seriously compromised, because such changes are supposed to result only from congressional lawmaking.

Executive lawmaking is by no means new, but it has significantly increased in scope under the Obama administration. The Environmental Protection Agency (EPA) is perhaps the worst offender. Its authority to regulate greenhouse gas emissions, for example, stems from a 2011 reinterpretation of the Clean Air Act and the later Clean Air Act amendments. Although narrowly approved in part by the Supreme Court in 2014, the EPA’s reinterpretation of the law was so egregious that, by its own admission, it would have rendered portions of the Act “unrecognizable” to the Congress that passed it in 1970. Scalia called the executive branch’s legislative reinterpretation a blatant attempt to “just rewrite the statute.” In a more recent and ongoing development, the Obama administration has structured adherence to this year’s Paris climate agreement around executive directives to the EPA as opposed to Senate consent. With Trump’s hot-off-the-press appointment of Myron Ebell, a noted climate-change skeptic, to lead Trump’s EPA executive transition team, Obama’s executive memorandums to the EPA will likely be off the books before winter’s end.

The Obama administration did not limit its rulemaking overreach to carbon emissions. “Navigable waters” are another area of federal oversight that has been greatly expanded by executive overreach. The Clean Water Act of 1972 gave the EPA the authority to regulate the discharge of pollutants into “navigable waters” and rivers, streams, and other bodies that flow into them. The source of federal jurisdiction over such bodies of water is the Constitution’s interstate commerce clause, under the sound logic that navigable waterways can be used to transport goods from one state to another and should therefore be subject to federal oversight. Since the passage of the Clean Water Act, however, the EPA and presidential memoranda have gradually ignored court action, expanding the law’s reach to include runoff, seasonal ponds, trickling brooks, and practically any other water source that shares a watershed with a navigable waterway. Its original meaning has therefore gone down the drain. Attempts by the EPA to regulate private bodies of water with no significant navigability abound, affecting everything from suburban koi fish ponds to man-made swimming holes.

Regardless of one’s views on pollutant discharges or koi ponds, the appropriate authority for the expansion of laws like the Clean Water Act lies with Congress, not the executive. The ability of the EPA to dictate state-level environmental affairs via executive fiat during the Obama presidency may have been a boon for environmentalists. But under the Trump presidency, such a precedent for other federal agencies will, if used, have a significantly regressive impact on some progressive initiatives.   

Thus, no matter how judicially originalist or activist the balance of the Supreme Court may tip in the coming months and years, it is better to have a constitutional originalist than a living constitutionalist in the Oval Office. Unfortunately, Donald Trump falls into the latter camp. In the coming years, progressives will be in the unfamiliar, and somewhat ironic, position of having to advocate for executive and judicial restraint in the areas of marriage equality, deferred immigration enforcement (DACA), and universal health care–ironic because these hallmark achievements of the Obama administration have all been assisted by judicial activism and executive overreach.

If there is a lesson to be taken from Trump’s victory on Tuesday, it is this: what one executive can do, another can undo. If you want real, lasting change, then act through the legislative branch (Congress). If you fear the short-term implications of authoritarian demagogy, then limit executive power via constitutional originalism. If Trump’s victory has left you in a state of despair, then take a step back to consider. There is little he can do domestically that will last beyond his presidency without the consent of Congress, and Congress remains the epitome of change-averse, establishment-oriented politics. The shakeup that Trump’s populist movement yearns for will probably be more subtle than seismic.

Due to Trump’s apparent lack of self-control, however, there is still cause for significant concern in the area of international affairs -- despite the potential for the courts, through constitutional originalism, to restrain executive power to declare war and make treaties. We do live in an era when 140 characters tweeted out at 3 a.m. may be enough to start a trade war.

We Created Donald Trump

Donald Trump has a realistic chance of becoming president of the United States as a result of the politically correct culture that has disgusted a large share of the population. 59 percent of Americans say “people are too easily offended these days over language others use.” The strong shift toward liberalism, particularly by millennials, has frustrated older, more conservative citizens and elicited the extreme response of nominating Trump. Despite the exposure of his lewd actions in the national media, Mr. Trump still has strong support across the country, polling at 44 percent.

Over the past 20 years, the politically correct culture has arisen with an emphasis on being inclusive towards all groups and being extremely careful to avoid potentially offensive actions. While some words have always been blatantly marginalizing, in the past decade an entire lexicon of language alleged to contain implicit bias has been declared off-limits by the PC culture.

Politically Correct culture also focuses on identifying and mitigating institutional barriers, including institutional racism and socioeconomic “social reproduction.” that perpetuate injustices against historically marginalized groups by making it easier for those in power to stay in power. It’s no secret that this culture has been embraced by millennials, especially college students, while Baby Boomers often reject aspects of it as oversensitivity. This culture has positive intentions, but creates negative consequences.

When certain terms are off-limits, people become hesitant to discuss sensitive topics. Even if someone has politically correct thoughts, they may become discouraged from expressing them because they fear being accused of bigotry due to imperfect word choice. Additionally, the PC culture can be so encompassing in declaring injustices that it can cause people to dismiss legitimate social justice issues. When the average American hears about microaggressions — acts that can often be hard to see without an analytic social science scope —they extrapolate their distaste for the imperceptible problem to a distaste for tangible social justice concerns. Discussing implicit institutional discrimination is important, but when every negative in one’s life is attributed to an implicit cause, focus is diverted from tangible problems. In many ways, the current politically correct culture has turned people away from its original purpose, which was getting individuals to embrace equality and justice.

Donald Trump has said and done numerous things that any other presidential candidate in recent years would never have gotten away with, but he remains in decent shape in the polls because he “tells it like it is.” Trump is as much of a contradiction to politically correct culture as you can possibly find. He has mockingly imitated a reporter’s cerebral palsy, made blatantly xenophobic comments, and even bragged about sexually assaulting women, but none of these actions have dramatically changed his poll numbers. When Trump was heard suggesting that he “grab[s] [women] by the pussy,” his poll numbers fell by a negligible one percentage point.

According to Trump, political correctness is “the cancer that eats away at America.” Many Americans seem to agree, preferring his boisterous bloviating to the perceived malicious mendacity of Hillary Clinton, who will “say anything and do nothing”. The acceptance of Trump’s crude behavior represents a grand resistance to the politically correct culture.

Trump is the Republican nominee largely because many people prefer his behavior during the campaign to the excessive caution displayed by some of his primary opponents. Conservatives across the country are fed up with the coddling, especially that which often occurs on college campuses. Last year’s e-mail from a Yale professor on the issue of appropriate Halloween costumes sparked outrage on college campuses across the country: “Is there no room anymore for a child or young person to be a little bit obnoxious … a little bit inappropriate or provocative or, yes, offensive?” While costumes can perpetuate stereotypes of marginalized groups, it is hard to perceive negative intent when a child dresses up as Sacagawea or decides to don a sombrero.

Many felt it was also extremely distasteful to hear privileged Yale students cry out about being discriminated against while they attend one of the most prestigious and accepting universities on the planet. How exactly do they expect to function outside a school where the majority of people are well educated and actively trying to be politically correct? Yale students are censoring relatively innocent actions to protect their own fragile emotional state. While this is an extreme example of political correctness, it was a highly publicized incident and undoubtedly turned off a good portion of the country.

Even President Barack Obama said that he felt students were being “coddled and protected from different points of view." People voting for Trump are effectively saying they would prefer a culture where people are dramatically less sensitive, and a candidate who bloviates about anything and everything that comes to mind irrespective of who is offended.

While the Trump campaign looks likely to lose, it is still quite troubling that a man with no political background and a porous campaign platform has managed to become a major party nominee and still has a chance to win. There are certainly many positives to political correctness, but it is clear that a large portion of the nation is dismayed at how far it has been taken. I would suggest that we shift more of our focus to dismantling institutional barriers that hurt marginalized groups, instead of worrying so much about implicit, and often very unclear, discriminatory action by individuals.

Stress and Excellence at Hamilton

As the alarm clock on my iPhone rings, a flood of energy and stress washes over me, and I slowly become conscious of the ambitious deadlines I set for myself the night before.  It is a new morning at Hamilton. Although I and probably hundreds of others are eager and willing to embrace this kind of lifestyle, sometimes I cannot help but wonder why. 

I think we tell ourselves it is ambition, or maybe even noblesse oblige, that drives us in the challenging moments.  This is no doubt partly true, but perhaps it is not totally clear why overachieving Hamilton students work as hard as they do.  Given the strange kind of pride I witness in myself and my classmates as we consistently complain about our packed schedules, and given the rise in demand for health/counseling center services, such questions should be asked. 

Debates about the meaning of “ambition” and “success” actually go a long way back, perhaps even further than the Enlightenment era to which Hamilton’s curriculum and community owe so much.  Thinkers debated whether the meaning of life necessarily involved rising above everyone else.  Back then, the lazy jester in Diderot’s Rameau’s Nephew spent more time justifying his lack of ambition to rise above the mass than on his chosen trade of foolery and mimicry itself.  But if the nephew is right that “there is nothing degrading in doing the same as everybody else,” there is perhaps nothing elevating in it either.  It is probably at least a little natural to want to “stand out,” and it goes beyond what our parents, teachers, friends, and coaches told us growing up about working hard, achieving success, and setting ambitious goals.  It is engrained, I would suggest, in the very notion of a democratic society.

It is obvious that we are at least partially products of the world around us.  But there is a strangeness to the seeming contradiction between the amazing place I genuinely believe Hamilton to be and the tremendous stress and preoccupation with success here.  We should think more intelligently about it.  Not because I expect everyone to understand precisely where I am coming from, but because I believe others are at least thinking, if not feeling, a similar way.  Thinking about excellence, midterms, and stress in the context of Hamilton and its heritage, then, need not be an individual conundrum to be faced alone, but instead a challenging emotional-intellectual exercise from which all can benefit.         

So important is the concept of excellence to Western thought that virtually any prominent philosopher can be found addressing it at one point or another.  There is little question, for example, that when Alexis de Tocqueville sought to understand post-revolution France, he was engaging, if only tangentially, in just such an intellectual exercise.  Lover of the old aristocracy or not, he came face to face with the peculiar question of how one could possibly stand out in an increasingly equalized—and thus increasingly homogenized—Western society.  In Democracy in America, he “surveyed this countless multitude of beings” and concluded that they seemed destined to become more alike, not better than each other.  Tocqueville, whose relatives had faced the guillotine a generation earlier, was somewhat cursed to be an aristocrat after the French Revolution. But he was also “blessed,” meaning fortunate, because he had achieved status the easy way, by birth.       

There is ample reason to see traces of that same predetermined excellence in today’s growing income inequality.  But it would be foolish of us to assume that excellence today can be reduced to privileges alone.  Each and every privilege, however they are defined, means for any individual an opportunity that others may not have.  But if we think about excellence in the context of a society of free individuals, we see that it is personal before it is social.  Receiving social privileges based on one’s family background does nothing to produce excellence in the individual. 

Consider students who were educated at Phillips Exeter and went on to an elite college, yet never really applied themselves at either level, doing the bare minimum necessary to get through.  They would receive the institutional privileges that come with attending those schools, which can be substantial, but they would not receive the benefits that come with excelling at them.  There is a difference between being privileged and being excellent.  And today, the difference between privilege and excellence is the degree to which we apply ourselves to making the most out of the privileges—whether few or many—we have been given in life.   

This is all well and good, one might ask, but how does “making the most of things” relieve the stresses of competition and the pressure from our peers and family?  Indeed, doesn’tmaking the “most” of things imply the impossibility of a balanced middle ground, thus adding fuel to a dangerous fire?  Are we to be forever chained, as Jose Ortega y Gasset put it, “to a maximum or a minimum of demands upon ourselves”—to be either the best or completely undistinguished?

If we choose to see excellence as an individual struggle towards betterment, and not as a competition with the world, the only thing we are “chained” to is ourselves.  It seems like a tautology at first, like 2+2=4, because of course everything comes down to the decisions we make in life.  But in that case it must be ourselves, and not others, who are responsible for how much credence we give to outside pressure to “succeed.”  It must be ourselves, not others, who take on difficult projects and pack just too much into a day.  This is not freedom from responsibility, but freedom in how we approach responsibility.  It cannot take away difficulties, but it can change where they are coming from.     

Understanding modern excellence as an individual enterprise cannot get rid of stress, struggle, or sleepless nights, nor does it necessarily recommend them.  It cannot erase the difficulty of difficult goals when we feel called inexplicably, against all “rational advice,” to take them on.  But it can help us understand how we ought to go about doing them, and that, I think, is a step worth taking.

Untrue, Unfair, & Unproductive: The Attacks on Hillary Clinton as Defense Attorney

“Hillary Clinton is an advocate for rapists. Not for women and children.” Those are the closing words of a meme that has been shared millions of times on Facebook since last May. The meme refers to the real case of Thomas Taylor, whom Hillary Clinton represented as court-appointed counsel in 1975 on charges of raping a 12-year-old girl named Kathy Shelton. Shelton recently appeared at Donald Trump’s side in an unorthodox press conference before the second presidential debate. The false narrative that Clinton is somehow more pro-rapist than pro-women is disappointing and problematic within the confines of the 2016 presidential race. But the thought process that sustains this narrative extends much further into the American psychology than just one election. The false dichotomy upon which it relies – that you are either pro-survivor or pro-rapist – only serves to undermine the very ideals upon which America was founded: that everyone is owed due process and a zealous legal defense.

The notion that Hillary Clinton is forever precluded from being a true advocate for women and children because of the 1975 Taylor case is ludicrous. The alt-right can devalue the currency of truthfulness as much as it wants, but the facts remain clear all the same. Clinton was appointed counsel for Taylor and dutifully fulfilled her ethical and legal obligations; at the end of the day, Taylor pled guilty to lesser-included-offenses. Now, by no means is Clinton a perfect feminist; her feminism hasn’t been as inclusive of women of color and LGBTQ folks as it should have been over the years. But despite her shortcomings, Hillary Clinton has nonetheless dedicated her life in public service to fighting for women and children.

Some may dismiss this meme and the attacks on Clinton for defending Taylor as simple partisan politics at the end of a hard-fought election. But the truth is that these false attacks are not just unfair to Clinton as an individual. They also reflect an even greater shortcoming of our society: the de-valuation of the Sixth Amendment right to counsel and the spirit that energizes it – the belief that justice and due process require that the accused always receive a zealous defense, no matter how heinous the charge.

When we think of American constitutional values, people instinctively reach for the First or Second Amendments, unfairly neglecting the Sixth Amendment in the process. John Adams – who later served as the second President of the United States, by the way – represented and won acquittals for six of the eight British redcoats charged for their role in the 1770 Boston Massacre. Even our favorite Founding Father here on the Hill, Alexander Hamilton, made a name for himself in his early legal career defending Loyalists to the Crown against lawsuits from American revolutionaries. So I applaud Adams and Hamilton, and I applaud Hillary Clinton, just as I applaud any other individual with skin thick enough to handle indigent criminal defense work.

I still remain deeply troubled, however, by cases like Thomas Taylor’s. They bring to the surface a conflict that I do not yet know how to resolve: the tension between supporting survivors of sexual assault and simultaneously remaining committed to the due process of law and the right of a zealous defense for all. Perhaps the only people who get a worse shake in the criminal justice system than criminal defendants are the survivors of sexual violence themselves – the very people whom the police and prosecutors are supposed to protect and serve. Coming forward is discouraged; police reports reach dead ends; rape kits get “lost” or destroyed. Sexual violence is a real, credible issue – on this college campus and others, as well as in cities and towns across the nation. So it’s easy, perhaps even natural, to see the world in black and white: you’re either pro-survivor or pro-rapist.

But as Thoreau once wrote, “Nature is hard to overcome, but she must be overcome.” This false dichotomy mistakenly pits principles of feminism against principles of criminal justice reform. It chills support of one movement in an attempt to bolster the other, and it needs to stop. For it is an equally American principle that we do not sacrifice our ideals when they come under pressure. That is when we double down on our principles: when it’s hard, when it’s inconvenient, when it hurts.

We must remember the spirit that John Adams brought to court in the Boston Massacre trials – even, and especially, when dealing with an issue as emotionally fraying and important as curbing sexual violence. I applaud those who fight for the noble and important cause of advocating for survivors of sexual assault. All the same, I applaud those who fight for the cause – one equally noble and important – of advocating for the rights of the accused in all judicial proceedings, including the right to counsel and to due process.

So let’s hope that there comes a day when a constructive alliance can be forged between these two groups of passionate advocates. That day may not be today. It may not be tomorrow either. But one thing, surely, remains clear. When we sling hateful rhetoric, when we peddle unfounded lies and misleading half-truths, and when we denigrate a woman for her commitment to our constitutional rights, we all take two steps backwards.

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Conor O’Shea ’18 is a Philosophy and Government double major, and a registered Independent in the state of New Hampshire. The author’s views are his own and not necessarily the views of any organization for which he currently works, or for which he has worked in the past.