In the comment section to my previous post on “process”, some pointed to the need for appointing “originalist” judges to the Supreme Court. I’m very sympathetic to that view, although in the end it’s not clear what the term means, nor is it clear if there actually are any originalists.

The 10th Amendment to the Constitution seems to severely limit the scope for Federal action:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That seems pretty clear.  Congress cannot do anything unless the Constitution explicitly gives it the authority to legislate on the issue.  And if you read the rest of the Constitution, there is very little authority given to Congress.  I’d guess that over 90% of what Congress does do is not explicitly authorized by the Constitution.

[Or at least not fully authorized, as when they regulate both interstate and intrastate commerce in a particular industry.  When I was young, Congress was only able to regulate airlines that crossed state lines.  But at some point that distinction became meaningless, and now Congress regulates all commerce.]

Oddly, in 1995 the Supreme Court seemed to suddenly decide that the 10th Amendment limited Congress’s authority, striking down a gun control act on the grounds that it was not authorized by a specific Constitutional provision—such as the commerce clause. But it soon became apparent that, despite the “Lopez” decision, the Supreme Court had no intention of rolling back 90% of the Federal government.  Rather they simply wanted Congress to pretend like it was adhering to the 10th amendment.  Here is Barry Toone (1996):

Congress wasted little time in heeding the advice of the Chief Justice and reworking the language of the Gun-Free School Zones Act. While fans of Lopez were still cheering, Congress quietly added a preface to its original legislation. Section 922(q)(1) now reads:

The Congress finds and declares that – (A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem; (B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs; (C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools; (D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce; … (F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country; (G) this decline in quality of education has an adverse impact on interstate commerce .. .

Congress, after the Lopez scolding, remembered to ask the Court before partaking of the Commerce power-and this time they remembered to say please.

Please? In what sense is that originalism?

Then in 2005, the Supreme Court ruled that the Federal government could overrule state laws legalizing medical marijuana, even if the marijuana was locally produced and provided by medical doctors to patients.  Is regulating the medicinal use of pot one of the “enumerated powers” of Congress?  Or is it simply “conservative” legislation that Antonin Scalia favored?

I’m told that President Trump approves of “originalist” judges who will strictly interpret the Constitution.  I very much doubt that.  He may appoint such judges (although I doubt that too) but he almost certainly does not approve of that judicial philosophy.  As far as I can tell, Trump seems to favor judges that allow the executive branch (i.e. him) an almost unlimited degree of discretion.

Some originalist judges may agree with that view—indeed Judge Bork was famous for arguing that courts should usually defer to the wishes of the other two branches of government.  Bork argued that the 10th amendment had become obsolete.  Other originalists (Gorsuch?) may take a very different view, frequently striking down laws that they believe violate the Constitution.

I’m not going to try to defend either point of view—both seem defensible to me—rather I’d like to suggest that almost no one seriously contemplates a truly “originalist” Supreme Court.  Consider the issue of immigration.  What power does the Constitution give Congress to regulate immigration?  I’m not sure, but found this at a conservative web site:

The word “immigration” does not appear in the U.S. Constitution or any of its Amendments. Article I, Section 8, Clause 4 does read, “… To establish an uniform Rule of Naturalization, …”. The 14th Amendment, Section 1 addresses the protection of “All persons born or naturalized in the United States,…” which extended citizenship through the States to the former slaves. The rules of immigration were reserved to the States through the 10th Amendment until the first Federal law was enacted in 1875. The U.S. Supreme Court ruled the following year that immigration regulation was an exclusive Federal responsibility. Congress established the Immigration Service in 1891, which was the first time the Federal government took an active role. Congress enacted additional quota systems after World War I in the years 1921 and 1924.

The 1875 bill restricted Asian immigration to the US.  For those who know more history than I do, I’d be curious if conservatives were just as outraged by this 1875 theft of state powers by Congress as they were by the New Deal legislation of the 1930s.  How would President Trump feel about a judge who decided that the Constitution left immigration decisions up to states like California?

[Yes, the Constitution does give Congress authority over “naturalization”, but of course that’s an entirely different issue from “immigration”.]

Again, I’m not trying to argue if favor of any particular legal philosophy.  Rather I am arguing against “conservative” and “liberal” judges.  A good judge is like a good plumber; her political views should have no impact on how she does her job.  Thus I’m strongly pro-choice and yet also believe that Roe v. Wade was a bad legal decision.  Similarly, it should make no difference whether the judge believed marijuana or guns to be the greater evil.

Is half an originalist better than a non-originalist?  Not if one half of the decisions involve striking down legislation supported by progressives, and the other half of the decisions affirm legislation approved of by conservatives.

Wake me up when either political party starts consistently following a rules-based approach to jurisprudence.

PS.  If progressives want the federal government to regulate intrastate commerce and conservatives want it to regulate immigration, then let’s just repeal the 10th Amendment and end this farce.  Maybe then we could actually get back to the rule of law.