Month: August 2017

Most Americans probably welcomed yesterday’s solar eclipse as a brief distraction and respite from the bad news that seems to envelop us every day—most recently Charlottesville, Confederate monuments, and Trump’s response to these divisive subjects. “Not so fast,” says The Atlantic magazine. It recently published under the category of “science” an article by a Brooklyn College law professor captioned “American Blackout: A tour of the solar eclipse’s path reveals a nation that fought to maintain a different sort of totality.” The article asserts that “almost no black people” live along the path of the eclipse across the United States. The author’s nearly 5,000-word tome goes on to detail how at each point in its route from the west to the east coast the absence of black residents results from our Nation’s history of pervasive racism.[1] (The author also manages to work in several other themes apparently, in her view, somehow related to the eclipse such as the undemocratic nature of the electoral college process for electing presidents.)

While grudgingly conceding that the eclipse itself is not racist, the author suggests that its mostly white pathway constitutes some kind of an omen:

“Presumably, this is not explained by the implicit bias of the solar system. It is a matter of population density, and more specifically geographic variations in population density by race, for which the sun and the moon cannot be held responsible. Still, an eclipse chaser is always tempted to believe that the skies are relaying a message.”

It’s not clear what to make of this article. Even the liberal website Vox found the point of the article “hard-to-parse.” Perhaps it is an attempt to outdo the Onion or maybe it is a bizarre attempt at allegory. In any event, it demonstrates that no subject is beyond politicization today and that the most strident voices among us will see the dark side (pun intended) of everything.

[1] Actually, the body of the article contradicts the author’s exaggerated assertion that “almost no black people” live along the eclipse’s path. At best, she has exercised considerable poetic license.

A series of recent federal court decisions contradict the plain meaning of the language in the statutes they address, at least as that language had been understood and applied for decades. The four decisions are summarized below.

Title IX of the Federal Civil Rights Act generally prohibits discrimination “on the basis of sex” in federally funded education programs.[1] Since its enactment in 1972, title IX has been understood to cover discrimination between males and females based on their biological sex. This is consistent with the virtually universal definition of “sex” as meaning the anatomical and chromosomal features that distinguish males from females. By contrast, “gender” refers to the attitudes, feelings, and behaviors that a given culture typically associates with a person’s biological sex. However, two recent federal appellate court decisions held that “sex” for purposes of title IX actually means preferred gender identity rather than biological sex where the two diverge in any individual: G.G. v. Gloucester County School Board, also known as the Gavin Grimm case, and Whitaker v. Kenosha Unified School District. [2] Both cases dealt with public school bathroom access for transgendered students.

The Americans with Disabilities Act (ADA), enacted in 1990, broadly defines disability discrimination subject to its prohibitions but lists a number of specific exclusions from its coverage. Among them, the act states that “the term ‘disability’ shall not include . . . gender identity disorders not resulting from physical impairments.” Transgendered people are often diagnosed with “gender dysphoria,” also known as “gender identity disorder.”[3] Notwithstanding the explicit exclusion of “gender identity disorders” from ADA coverage, a Pennsylvania federal district court judge held in Blatt v. Cabela’s Retail, Inc. that the plaintiff could claim disability discrimination under the ADA based on transgender status.

Title VII of the federal Civil Rights Act prohibits employment-related discrimination “because of  . . . sex.”  Like the education-related prohibition in title IX, discussed above, title VII has been understood since its enactment in 1964 to outlaw sex discrimination relating to biological males versus females, or as one court put it, discrimination “against women because they are women or against men because they are men.” Every federal appellate court to address the issue held that title VII does not extend to discrimination based on “sexual orientation.” Nevertheless, in Hivley v. Ivy Tech Community College of Indiana, an 8-3 majority of the full Seventh Circuit Court of Appeals concluded that title VII does indeed cover discrimination based on sexual orientation.

How to explain these decisions?

The first rule of statutory interpretation is to apply the law according to the plain meaning of its text when the statutory language is unambiguous. To determine plain meaning. non-technical words in a statute are given their ordinary meaning as understood when the law was enacted. Dictionary definitions are often used for this purpose. The statutory language in each of the above cases has a plain meaning. In three of the four cases, courts had followed that plain meaning for decades.  In the fourth case, the one involving the ADA, the statutory language is so clear in excluding transgender-based claims that the issue apparently had not been litigated before. (The Pennsylvania court cited no precedent either supporting or opposing its conclusion.)

What changed? Not the law. The opinions in the four cases employ various rationales to justify their conclusion that the laws in question actually mean, and have always meant, something quite different from what they had long been understood to mean. The necessary implication is that courts have been misinterpreting these laws for decades and that their pervasive and longstanding judicial errors have only now been discovered. The opinions are not convincing in this regard. Indeed, two of the cases, Grimm and Hivley, feature strong dissents accusing the judges in the majority of blatantly rewriting the law rather than applying the law as written.

The plain meaning of the law has not changed either. One can perhaps envision a situation where the contemporary understanding of words used in a statute has changed to such an extent that the law can no longer be applied in accordance with its original plain meaning. Such a situation would pose a challenge for judges and require a departure from the standard rules of statutory interpretation. However, that’s not the case with the laws involved here. The term “sex” is still defined by reference to the biological differences between males and females just as it was when these laws were first enacted (and, of course, long before then). Likewise, the terms “gender” and “sexual orientation” have not changed their meaning and remain distinct from “sex.”

What has changed quite dramatically since the original enactment of these laws is our cultural mores, specifically, in the context of these cases, attitudes toward LGBT issues. These changing attitudes must account for the outcomes in all four of the cases since there is no other plausible explanation. A remarkable concurring opinion in the Hivley case by Judge Richard Posner, widely regarded as one of the preeminent legal intellects of our time, is strikingly candid in acknowledging this.

Judge Posner’s theory of “judicial interpretive updating”

Judge Posner’s concurring opinion in Hivley begins by conceding that title VII was never meant to cover discrimination based on sexual orientation. He regards it as “well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII.” Nevertheless, he considers it appropriate for judges to “update” the original meaning of title VII based on evolving societal attitudes toward sex. In this regard, he insists that “statutory and constitutional provisions frequently are interpreted [by judges] on the basis of present need and understanding rather than original meaning.” He views this process, which he calls “judicial interpretive updating,” as appropriate when, due to shifts in the political and cultural environment, their original meaning no longer serves contemporary needs.

Judge Posner chides the majority opinion in Hivley for in effect engaging in the fiction that title VII covered sexual orientation discrimination when originally enacted in 1964. He argues that his approach is more “straightforward” than the majority’s:

“I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.”

He added the caveat that judicial interpretive updating “presupposes a lengthy interval between enactment and (re)interpretation” of the statute’s original meaning. However, he offered no criteria for determining how long the interval must be.

Critique of judicial interpretive updating

Judge Posner certainly deserves high marks for honesty. He owns up to what is essentially legislating from the bench, something judges (particularly those regarded as “liberals”) are often accused of doing but rarely if ever admit. However, the substance of his position raises a host of issues.

First and foremost, by what constitutional authority can courts relieve Congress of its legislative “burden”? The role of the courts is to apply statutes (assuming their constitutionality) as Congress wrote them, not to effectively amend them by reinterpreting (i.e., changing) their stated meaning. Judge Posner’s concept of judicial interpretive updating thus represents a fundamental violation of the constitutional separation of powers between the legislative and judicial branches.

Second, even apart from the obvious constitutional problem, the notion of judicial interpretive updating is undemocratic and elitist. It is of course true that times change and laws need to change with them. But that’s what Congress is for. Why should judges consider themselves better positioned than the people’s elected representatives to decide when statutes have become obsolete and how they should be updated? Likewise, what makes judges think that Congress wants to share its legislative burden with them? The latter question is particularly relevant to the statutes discussed above; legislative efforts to amend them to cover gender identity and sexual orientation have frequently been attempted but never succeeded. It is noteworthy in this regard that each of the decisions featured here resulted from a test case sponsored by interest groups seeking to achieve through litigation policy outcomes that they had thus far been unable to obtain through legislative lobbying.

Third, decisions such as these are responsible for the increasing politicization of the federal judiciary in recent times, a development generally bemoaned by those of all ideological stripes. However,  politicization is an inevitable consequence when judges assume the inherently political role of deciding when and how statutes need to change. If judges are to do this, the politicians who appoint them will naturally favor nominees whom they believe will act in accordance with their (the politicians’) political preferences.

Finally, as Judge Posner’s opinion noted, his theory of judicial interpretive updating of statutes is similar to the “living Constitution” theory of constitutional interpretation.  Living constitutionalists view the Constitution as a malleable document whose meaning can be revised over time by judges in order to keep pace with evolving societal values and norms. (This theory and the competing “originalism” approach to constitutional interpretation are discussed in more detail here.) The living Constitution theory is subject to the same criticisms as Judge Posner’s judicial interpretive updating. Interestingly, a number of judges and other legal experts openly embrace “judicial interpretive updating” (in the form of living constitutionalism) when it comes to constitutional adjudication. However, Judge Posner is alone (as far as I know) in openly acknowledging and supporting this approach when it comes to interpreting statutes.

[1] Title IX and its implementing regulations allow educational institutions to maintain separate living facilities for the different sexes as well as separate toilet, locker room, and shower facilities on the basis of sex so long as the sex-segregated facilities are comparable. They permit sex-segregation in a number of other situations as well.

[2] The Supreme Court issued a stay to prevent enforcement of the Grimm decision. It later sent the case back to the lower courts without deciding the merits after the Trump administration rescinded guidance issued by the Obama administration on which the decision was largely based.

[3] The 2013 edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) defines “gender dysphoria” as “a medical condition characterized by clinically significant distress caused by incongruence between a person’s gender identity and the person’s birth-assigned sex.” Before 2013, the condition was known as “gender identity disorder” and that term is still sometimes used. However, the change in terminology was made in order to remove the stigma associated with the former term by getting away from the now disfavored view that transgenderism is a form of mental illness.

 

Two prominent but sharply contrasting approaches to interpreting the Constitution are “originalism” and the “living Constitution.” Debate over these competing approaches is, to a large extent, the stuff of arcane legal theory. However, the choice between them can produce strikingly different outcomes. In turn, which approach prevails can determine whether some of the most controversial and politically-charged issues facing our Nation today are resolved through democratic processes or by judicial edict.

Basics of the controversy

Both originalism and living constitutionalism involve considerable nuance and can be variously defined. At the risk of oversimplifying, originalists seek to interpret and apply constitutional provisions in accordance with the generally understood meaning of their language at the time the provisions were adopted. They view the Constitution as a document whose provisions, as thus understood, are enduring law and can be changed only by formal amendment. By contrast, living constitutionalists tend to view the Constitution as a malleable document whose meaning can change over time, without amendment, in order to accommodate evolving societal values, norms and needs. Both approaches are within the “mainstream” of contemporary legal thought; each has its share of distinguished supporters and critics. For example, the late Justice Scalia was an outspoken originalist while Justice Breyer is a leading proponent of the living Constitution. The two justices frequently debated each other on this topic.[1]

A brief history

The originalism versus living Constitution controversy arose in the early 20th Century. Until then, judges and other legal experts took for granted that originalism was the only appropriate method of constitutional interpretation. The living Constitution movement took hold in the 1930’s to counter what were regarded as overly rigid originalist Supreme Court decisions that nullified New Deal legislation. The early living constitutionalists advocated greater judicial flexibility and deference to Congress when assessing the constitutionality of laws enacted during that era, which greatly expanded federal powers. Living constitutionalism thus started out as an effort to restrain judges from impeding the democratic process of legislating. Ironically, it has come to be used in the subsequent Warren Court era and more recently to justify the judicial recognition of new constitutional rights that frequently superseded legislative enactments. Originalism has staged a comeback largely in reaction to this more recent form of living constitutionalism.

Recent living Constitution applications: Creating new constitutional rights

The current approach to living constitutionalism is exemplified by a series of Supreme Court decisions in recent decades that established constitutional rights not specifically enumerated in the document itself and previously unrecognized by the courts. The first case in the series was Griswold v. Connecticut. This 1965 decision discovered a constitutional “right to privacy” that was violated by a state statute prohibiting the sale of contraceptives to married couples.  A 1972 decision, Eisenstadt v. Hodges, extended this privacy right to nullify prohibitions on selling contraceptives to unmarried couples. One year later came the Supreme Court’s landmark decision in Roe v. Wade establishing a constitutional right to abortion. A 2003 decision, Lawrence v. Texas, invalidated a statute that prohibited private sexual conduct between same-sex adults.  Most recently, in Obergefell v. Hodges the Court found a constitutional right to same-sex marriage.[2]

The above decisions have two things in common. First, whatever one thinks of their outcomes, their legal rationales are less than compelling. The most nebulous, Griswold, in effect created its constitutional right to privacy literally out of thin air, famously observing that such a right was implied in “penumbras, formed by emanations from” other provisions in the Constitution. The rationale of Roe v. Wade has been roundly criticized by legal experts on both sides of the abortion controversy, including such staunch pro-choice figures as Ruth Bader Ginsburg, and had to be reworked by the Court several decades later. Justice Kennedy’s majority opinion in Obergefell is an eloquent paean to the importance of marriage and human dignity but lacks a coherent legal rationale for revising the concept of marriage that had prevailed for thousands of years.

Second, most of these decisions short-circuited democratic processes that were actively addressing the issues they involved. Banning the sale of contraceptives was largely a non-issue by the time of the Supreme Court decisions on this subject; hardly any States still had such prohibitions. The dissent in Griswold described the statute involved there as “an uncommonly silly law.” Same-sex marriage was under active consideration across the Nation and had been legalized by 37 States at the time Obergefell ended the debate. Many aspects of abortion rights, including the validity of Roe v. Wade, remain subject to intense controversy today.

Which approach is better?

No single interpretive method can consistently produce definitive answers with mathematical precision, particularly in cases where the constitutional issues are debatable enough to reach the Supreme Court. Many such cases involve provisions that lack a readily ascertainable original meaning capable of producing a clear answer.[3] However, where there is a reasonable choice to be made between originalism and living constitutionalism, I’d submit that originalism is the sounder approach. There are a number of reasons for this as outlined below.

The Constitution’s meaning must be anchored in its text. If the words don’t change, how can their meaning? Like other sources of written law (e.g., statutes), the Constitution’s meaning must be based on its text. Obviously the Constitution is not a “living” document in the sense that its language “evolves” on its own. Unless amended, the words of the Constitution say today what they said at the time of their original adoption. This includes constitutional provisions that might be considered anachronistic or objectionable by contemporary standards. To cite two examples:

• The Constitution limits presidential eligibility to U.S. citizens at birth, a restriction that could be labeled “xenophobic” today.
• It provides for presidential election through the electoral college system rather than by nationwide popular vote, a system many view as undemocratic.

Yet no one would argue that these provisions no longer mean what they say or have ceased to apply according to their original terms.[4] It’s true that many other constitutional provisions are written in much broader terms whose meaning is not self-evident from the text, such as protections from “unreasonable” searches and seizures and guarantees of “due process” and “the equal protection of the laws.” But even these broad terms have ascertainable original meanings that can often (though not always) inform their application to particular situations. For example, the basic tenets underlying the constitutional protection against unreasonable searches and seizures are enduring and readily translatable to contemporary technologies and evidence-gathering techniques that were unknown to the framers.  When an original meaning can be ascertained, jettisoning that meaning without a change in the text necessarily amounts to a de facto constitutional amendment. (A similar problem has developed with regard to statutory interpretation as some courts “reinterpret” federal statutes to alter their original plain meaning. This issue is discussed in a separate post.)

Evolution of our law relies mainly on legislation, not constitutional interpretation. Opponents of originalism view it as too inflexible to keep up with contemporary needs, norms and values. It’s true that the process of amending the Constitution is very demanding; the framers did not want it to be easy. However, constitutional change is not the primary means by which our legal system evolves to keep up with the times. The Constitution is, of course, the “supreme law of the land” but it is not the primary source of our law. Federal and State statutes as well as local ordinances enacted by our elected representatives constitute the main body of American law. These legislative enactments evolve continually. New legal rights and obligations are added, modified or otherwise refined all the time. Indeed, federal statutes regularly flesh out constitutional rights. Section 5 of the Fourteenth Amendment explicitly authorizes Congress to enforce its guarantees of due process and equal protection. Congress has done just that through the enactment of many civil rights acts dealing with a variety of subjects. State and local laws often confer rights and protections that go well beyond established constitutional guarantees. In short, the development of our law rarely needs to rely on constitutional amendment.

An evolving Constitution can decrease as well as enhance existing rights. Living constitutionalists seem to regard the “evolution” of the Constitution’s meaning as a linear progression in which constitutional rights and protections only expand in response to societal changes. However, this not necessarily true. Constitutional rights can potentially come into competition with each other so that enlarging the rights of some individuals or groups diminishes the rights of others. This is not just an abstract possibility. Ominous trends in our society today demonstrate significant hostility toward what have long been considered fundamental constitutional rights. For example, many institutions of higher education are engaged in efforts to suppress free speech that some might find offensive or to limit due process protections for students accused of sexual misconduct. Thus, a living malleable Constitution whose meaning evolves to mirror societal trends can change constitutional rights for the better or for the worse.

The people’s representatives rather than unelected judges should decide when and how the Constitution needs to change to accommodate societal and cultural change. Obviously our legal system needs to evolve in response to changes in societal norms and values as well as countless other changed circumstances. In the final analysis, the key difference between originalists and living constitutionalists comes down to the question of who gets to decide when and how such changes should occur. Originalists favor leaving this decision-making to our democratic processes through the enactment and revision of legislation as well as occasional constitutional amendment if need be. Living constitutionalists seem comfortable assigning this role to judges through reinterpretation of the Constitution. But decisions about when and how shifts in societal and cultural mores justify changes to our law necessarily call for political and value judgments. Leaving this function to judges is undemocratic and tends to undermine public confidence in the courts. A good example is Obergefell, where a subject of intense national political debate was taken out of the hands of the people by the vote of a single jurist.

Of course judges are not expected (nor are they well equipped) to reflect popular opinion. Indeed, it is their responsibility to enforce constitutional rights and protections even where doing so is politically unpopular. This system works well when such rights and protections are firmly rooted in the Constitution. However, it breaks down when the asserted rights are based largely on multifaceted and controversial value judgments lacking a firm foundation in constitutional law that can be clearly articulated in judicial opinions.

Conclusion

Originalism is no magic bullet for deciding issues of constitutional interpretation. Despite its limitations, however, originalism furthers our democratic principles and promotes public confidence in the rule of law. By contrast, living constitutionalism, as advocated today, serves essentially as a justification for unelected judges to override our democratic processes and impose their policy choices on the citizenry. As such, it is deeply flawed in concept. If the living Constitution approach has any legitimate application, it is in its initial formulation of according heightened judicial deference to the judgments of the people as expressed in legislation.[5] Thus, originalism, tempered by substantial deference to legislative judgements, should be followed whenever practical in constitutional adjudication. Also, judicial nominees should be pressed in their confirmation hearings on whether they favor the originalist or living Constitution approach. Those who express a preference for the latter should be regarded with great skepticism.

[1] An illustration of the split among the justices between originalists and living constitutionalists is the Court’s recent decision in NLRB v. Canning concerning the authority of the president to make recess appointments.

[2] The next front may be transgender rights, spearheaded by efforts to redefine traditional concepts of sex from biological fact to gender identity preference. The Supreme Court was poised to decide a major case on this subject this year but remanded the case to the lower courts without a decision on the merits. The case likely will reemerge as a constitutional issue.

[3] The Supreme Court’s 5-4 decision in District of Columbia v. Heller on whether the Second Amendment confers an individual right to own firearms is an example. The justices disagreed sharply both on how the constitutional language itself should be read and on its original meaning. Another example is Brown v. Board of Education. On the issue of whether the Fourteenth Amendment’s Equal Protection Clause was originally understood to outlaw all forms of racial segregation, the Court found the history “inconclusive.” It held on other grounds that allegedly “separate but equal” segregated public schools were unconstitutional. Legal experts are still debating whether an originalist approach to interpreting the Fourteenth Amendment would produce the result in Brown.

[4] Some efforts are underway through a proposed interstate compact to effectively nullify the State-based electoral college process and elect the president by nationwide popular vote. However, these efforts are unlikely to garner enough political support to be implemented and would pose major constitutional issues even if they did.

[5] Arizona State Legislature v. Arizona Independent Redistricting Commission is an example of a decision in which this initial form of living constitutionalism prevailed over a perhaps overly rigid originalist approach.