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Many conservatives (see this op-ed, for example) criticize the tactics being used by the Marjory Stoneman Douglas High School students and other youths in their remarkable campaign for gun reform. These critics accuse the students of engaging in over-the-top rhetoric that demonizes gun rights advocates while offering no workable countermeasures to stem the carnage from guns that seems to be an all too common feature of American life. Gun control issues are complicated, the critics say, and call for reasoned, fact-based debate rather than demagoguery.

The latter point is certainly valid; effective measures to abate gun violence will only come through the good faith, fully informed and thoughtful efforts of many actors. However, for the NRA and its supporters to press this point is beyond hypocritical. They have spent decades doing everything within their considerable powers to prevent any rational, fact-based debate over gun control. They relentlessly attack even the most modest reform proposals as existential threats to Second Amendment rights. They have gone so far as to actively impede federal efforts to conduct research and even to develop and share background data relevant to guns. While they claim to support rigorous enforcement of existing gun control laws, they often work behind the scenes to subvert enforcement of those laws.

To the extent that the campaign by student activists currently elevates hyperbole over reasoned analysis, it simply takes a page directly from the NRA’s playbook. Unfortunately, this approach probably is the only way to focus attention sufficient to initiate substantive action on any controversial subject in today’s hyper-polarized environment. Hopefully, the students’ campaign will prove to be the catalyst so badly needed to generate real discussion and develop meaningful strategies to address our epidemic of gun violence. The tragedy at Stoneman Douglas already has prompted some “baby steps” in this direction but much more needs to be done.

As the attached article points out, an annual appropriation rider sought by the NRA and first enacted in the 1990’s greatly impedes federal research efforts aimed at developing strategies to reduce gun violence. Of all the sorry aspects of our ludicrous gun politics, this one takes the cake. Due to the rider’s restrictions, policymakers currently have little objective hard data to inform what strategies might or might not be effective, and consequently, they are left to consider often radically different approaches largely in a vacuum.

The appropriation rider has received little scrutiny over the years, probably surviving due in part to its obscurity. Surely the time has come to shine the light of day on it. In today’s climate, it’s hard to imagine how anyone (including a halfway savvy NRA representative) could argue with a straight face for its continuation. Reportedly, even the original congressional sponsor of the rider came to regret it. The issues surrounding the causes and prevention of gun violence are complex. In the absence of credible research findings, however, the so-called debate over these issues will continue to default to the mainly fact-free assertions, tendentious political rhetoric, and outright demagoguery of ideologues on all sides and their partisan allies.

If there is any “low hanging fruit” to target in terms of a meaningful bipartisan first step toward addressing gun violence, eliminating this absurd appropriation rider undoubtedly qualifies.

 

How the FBI handled the trove of Clinton-related emails it found on Anthony Weiner’s computer (apparently supplied by his former wife, Huma Abedin) created a monumental uproar on the eve of the 2016 presidential election. The Wall Street Journal and Washington Post now report that senior FBI officials, including Deputy Director McCabe, knew of these emails at least a month before then-Director James Comey notified Congress in the waning days of the election campaign that the Bureau was reopening its Clinton email investigation based on their discovery. Why on earth didn’t the FBI expeditiously analyze these newly-discovered emails during this 30-day period in order to determine whether they materially affected the Clinton investigation? Doing so would have avoided the fiasco that resulted when, within two weeks preceding the election, Comey first  informed Congress of the emails and then several days later said in effect “never mind.” (Once the damage was done by Comey’s initial submittal, the FBI was able to determine within just a few days of intense review that the Weiner emails were not significant.) Understandably, Comey’s actions drew intense scorn from both political sides as well as many objective sources. It’s not clear when during the 30-day period Comey became aware of the new emails.

The subject of this 30-day gap seems to be overshadowed for the moment by the virtual political war over the Nunes memo. However, the Justice Department’s inspector general is said to be focusing on this subject as part of his overall review of the FBI’s Clinton email investigation. There are hints in media reports that whatever McCabe did or didn’t do in relation to the Weiner emails was the real cause for his early departure from the Bureau. The inspector general’s report is expected to be completed within a few months. What it reveals may well prove to have greater and more lasting importance than the bruhaha over the Nunes memo.

The normally routine question of who takes over as acting head of a federal agency when the leadership position becomes vacant has turned into a major political and legal contest in the case of the Consumer Financial Protection Bureau (CFPB). The Dodd-Frank Act, which created the CFPB, establishes the position of CFPB Director as a Presidential appointee subject to Senate confirmation. The Act further  provides for a CFPB Deputy Director “who shall (A) be appointed by the Director; and (B) serve as acting Director in the absence or unavailability of the Director.” On November 24, the last day of his tenure, former CFPB Director Richard Cordray appointed his chief of staff, Leandra English, Deputy Director in order for her to become Acting Director upon his departure pursuant to the quoted Dodd-Frank provision. (Ms. English, who had occupied political positions in the Obama Administration, converted to her career position at CFPB shortly before President Trump took office.)

However, on the evening of November 24, President Trump announced that he was appointing Mick Mulvaney, currently Director of the Office of Management and Budget, as Acting Director of the CFPB pursuant to the Federal Vacancies Reform Act. The Vacancies Reform Act is a statute of broader applicability dealing with the assignment of acting officials to vacancies in executive branch positions, such as CFPB Director, that require Presidential appointment and Senate confirmation (known as “PAS” positions). Among other things, this statute authorizes the President to temporarily fill a vacant PAS position with someone already serving in another PAS position, such as Mulvaney.

At the time Cordray appointed English as Deputy Director he stated that he was positioning her to become Acting Director in order to “ensure an orderly succession for this independent agency,” to “minimize operational disruption,” and to “provide for a smooth transition.” The irony of this statement became apparent on Monday morning, November 27, when both Mulvaney and English reported to CFPB, each claiming to be the rightful Acting Director. English promptly sued Trump and Mulvaney seeking to oust Mulvaney and have herself declared the legitimate Acting Director. (She actually filed her lawsuit on Sunday, November 26.)

The judge assigned to the case denied English’s request for emergency relief but the lawsuit could drag on for some time if English persists. As long as it continues, one can expect great uncertainty to prevail both within CFPB and among those affected by its actions. The dispute also smacks of a well-orchestrated political circus. Mulvaney seems to have seized control at least as de facto Acting Director. However, the doughnuts he supplied for the staff are unlikely to alleviate their stress since his general contempt for the Bureau is well known. Meanwhile, several Democratic Senators posed for grandstanding photos with English and staged protests outside the Bureau’s offices. This sorry episode provides further evidence, if any is needed, of the hyper-partisanship, with its attendant chaos and dysfunction, that seems to define the federal government today.

The legal arguments focus primarily on the interplay between the Dodd-Frank Act and the Vacancies Reform Act: Is Dodd-Frank’s specific provision for the CFPB Deputy Director to become Acting Director the exclusive means of temporarily filling a vacancy in the Director position or does the more general Vacancies Reform Act authority remain available as another option, thereby enabling the President to make his own choice? The competing legal arguments, which debate at length the meaning of the language as well as the legislative and drafting histories of the two statutes, need not be rehashed here. For those interested, the following links lay out the respective statutory arguments in favor of Mulvaney and English.

The Mulvaney supporters appear to have the stronger case based on the statutory interpretation arguments alone. Even the CFPB’s general counsel concluded that Mulvaney is the rightful Acting Director. In any event, I’d submit that two broader considerations remove any doubt and thoroughly undercut the case for English.

First, accepting the argument that the Dodd-Frank provision is the exclusive vehicle for obtaining an Acting CFPB Director leads to an untenable result. By the logic of this argument, there could be no Acting Director at all if a Deputy Director was not in place when a vacancy arose. Under this entirely plausible scenario (English was not named Deputy Director until the day Cordray left), the CFPB’s work would grind to a halt until a new Director was formally nominated by the President and confirmed by the Senate. Congress could not have intended such a result.[1]

Second, this argument not only leads to a potentially absurd result but also one that is patently unconstitutional. Making appointments to executive agencies is a fundamental presidential function under the Constitution. The President’s appointment power is not absolute. In order to protect the Senate’s own constitutional prerogative of advice and consent, Congress may place some restrictions on the President’s ability to leave acting officials in vacant PAS positions. The time limits imposed by the Vacancies Reform Act reflect this. However, Congress surely cannot flatly preclude the President from making any temporary appointment to fill a vacancy in an executive agency PAS position. Yet this is the effect of the position advanced by English supporters and, indeed, their purpose as well. It’s abundantly clear that their primary goal is to prevent President Trump from assuming control over the CFPB through his own appointee(s) for as long as they possibly can. Thus, if Dodd-Frank was construed to preempt the President’s authority to appoint an acting head of CFPB, it would be unconstitutional.

Finally, I wonder whether English even has the requisite standing to maintain her suit. It’s at least questionable whether she can assert a legally enforceable right to the Acting Director position or that she suffers a legally cognizable injury if denied that position.

Eventually President Trump will succeed in putting a new CFPB Director in place. One can only hope that in the meantime English and her supporters will abandon their obstructionist efforts and allow the Bureau to go on with its business. Prolonging this dispute simply forestalls the inevitable, accomplishes nothing constructive, and feeds into the claims of its many critics that CFPB is an unconstitutional and out of control rogue agency.

[1] Perhaps English’s supporters would concede that the President could still exercise his constitutional authority to make a recess appointment somewhat sooner if the opportunity arose. However, this is hardly a satisfactory alternative.

Racist acts in recent years have fueled a campaign to expunge all Confederate monuments and other symbols from public places–except, perhaps, museums. The campaign is expanding to target monuments to a host of non-Confederate historic figures who may be viewed as offending contemporary standards in some way. For the reasons stated below, a more reasonable and measured response would be to focus on removing only those Confederate symbols that have been co-opted by hate groups for use as props in their activities. The rest should remain, leaving members of the public free to draw their own conclusions about them.

Some specific Confederate symbols have in effect been appropriated by racists and, as a result, are now widely identified as objects of hate notwithstanding their more nuanced historical significance. A prime example is the Confederate battle flag. Similarly, hate groups have seized upon certain individual memorials as venues for their activities. An example is the Robert E. Lee statue in Charlottesville, Virginia. After the recent violence there, the city’s mayor proposed that this statue be removed because it had become a “magnet for terrorism” and a potential threat to public safety from hate groups who may revisit it. The same rationale, if based on well-founded concerns, could apply to other monuments used by hate groups. If such monuments are removed, the blame falls squarely on the hate groups.

A case-by-case approach to deciding the fate of Confederate symbols addresses the problems that gave rise to the recent concerns without launching a wholesale movement to censor our history. Such an assault on controversial historical figures, including many with no connection to the Confederacy, is Orwellian and un-American. It also goes far beyond the causes of the current controversy. Hate groups have not tried to enlist memorials to Columbus, Washington, Jefferson, Teddy Roosevelt or the many other historic figures who have nevertheless come under attack.

Background of concerns over Confederate iconography.

There are about 700 Confederate monuments in public places throughout the United States, and a total of about 1,500 Confederate symbols in all. (Symbolism other than monuments includes cities, streets, buildings, and military bases named for Confederates as well as Confederate-themed flags and holidays.) The Confederate monuments are located primarily but not exclusively in the South. They were erected mainly in the late Nineteenth and early Twentieth Centuries.

Most of these monuments stood for generations without attracting much controversy, or perhaps much notice in recent times. What jump-started the current controversy was the Confederate imagery embraced by Dylann Roof, the racist murderer of nine African-Americans in a Charleston church. The reaction to Roof’s horrific crime fueled a campaign to remove the Confederate flag from public display, which spread to statues of Confederate figures and other Confederate symbols. The campaign has intensified in the wake of the recent mayhem in Charlottesville.

Attacks on currently disfavored historic icons are antithetical to an enlightened democracy.

Destroying historic monuments is a hallmark of barbarians like ISIS and the Taliban as well as the totalitarian thugs of Mao’s Red Guards. This is not good company for Americans to keep. Images of a North Carolina mob tearing down a statue of a generic Confederate soldier (not even a slave-holding general) and then kicking and spitting on it are particularly troublesome in this regard. Most nations that are enlightened and secure in who they are deal forthrightly with ambiguous and even notorious symbols of their past rather than sweeping them under the carpet. Some historic icons may have become so reprehensible that expunging them is justified, e.g., the swastika, an ancient symbol of well-being that is now and probably forever linked to Nazism. However, these should be rare exceptions.

The even broader campaign to sanitize our history by targeting a wide range of non-Confederate figures as well smacks of empty symbolism and political correctness. It is promoted by those in academia, the media and elsewhere who regard racism and oppression as the defining characteristics of the United States from its inception until today. They seek to enforce this perspective as the lens through which to view our history and historic figures, to the exclusion of everything else.[1]

Historical rationales advanced to justify mass removal of Confederate monuments are tenuous at best.

While some historians urge caution in evaluating Confederate monuments, many others claim that the monuments were erected for the sole purpose of promoting racism. Typical is an article by Karen Cox, a history professor, captioned “the whole point of Confederate monuments is to celebrate white supremacy.” A similar article, based on interviews with like-thinking historians, claims that the statues were erected only to “further a white supremacist future.” These assertions are long on innuendo but short on corroborating evidence.

As Professor Cox notes, the vast majority of the statues were sponsored by an organization called the United Daughters of the Confederacy (UDC). They were located in cemeteries, on battlefields, and at many other places. The UDC had seven stated goals, none of which is explicitly or implicitly racist. The first goal was to “honor the memory of those who served and those who fell in the service of the Confederate States.”

The historians ignore the UDC’s stated goals, apparently rejecting out of hand hand the possibility that anything but racism could explain the UDC’s work. They seem to regard UDC’s avowed purposes as mere pretext to mask its true racist motives. To make their case that racism actually motivated the UDC monument-building, historians rely on selective inferences drawn from facts that are subject to other interpretations:

• They point out that most UDC-sponsored monuments were built during a time (late 1800’s and early 1900’s) of virulent racism across the South. However, this also was a time when the Confederate dead were still fresh in the memories of their immediate families and surviving veterans were dying off.
• They note that another more modest spike in monument-building occurred during the civil rights era of the mid 1960’s. However, these  were also the centennial years of the Civil War.
• They infer an intent to intimidate African-Americans from the fact that a number of statues were placed in front of courthouses. However, courthouse squares, often found in the center of towns, are a natural location for monuments.

Absent supporting evidence, it is both unreasonable and unfair to conclude that the UDC had no genuine interest in honoring the memories of Confederate soldiers but sought only to advance white racism. It is plausible to conclude that the UDC operated from a variety of motives. For example, there is evidence that part of its agenda was to romanticize the Confederate “lost cause.” However, there is no evidence to rebut the conclusion that the UDC’s efforts stemmed at least primarily from its stated purpose to commemorate Confederate veterans.

Another historical justification some advance is that “traitors” don’t deserve monuments. This is also a dubious rationale for removing Confederate monuments. Importantly, when the Civil War ended Union leaders decided in the interests of reunification that Confederates should not be treated as traitors.[2] Indeed, until very recently many Confederate figures were viewed respectfully rather than as traitors. For example, President Eisenhower kept a portrait of Robert E. Lee in the Oval Office. Ten United States military installations are named for Confederate officers. Branding the Confederates as traitors at this late date appears to be mainly a rationalization offered to differentiate them from other slave-owners such as many of our Nation’s founders whose memorials may be in jeopardy under the “slippery slope” we are now descending. (See below.)

In sum, the glib historical arguments for removing Confederate monuments rest on a tendentious reading of history that stems more from liberal confirmation bias and groupthink than evidence-based scholarship. (See here and here.)

The campaign against Confederate monuments has morphed into a broader assault on American history.

Some express concern that removing Confederate memorials will lead us down a “slippery slope” reaching a wide range of non-Confederate historic figures who run afoul of contemporary standards. Critics initially dismissed this concern as a “red herring.” Clearly it is not; a movement to sanitize our history by exorcising monuments and symbols of all kinds is already well underway. The most strident voices, particularly those who make their living promoting racial strife, reject any distinction between Confederates and slave-owners such as Washington and Jefferson. Proponents of statue-removal have reached even farther to target historic figures who were neither Confederates nor slave-holders but are viewed as offensive in some way notwithstanding their other accomplishments and historic importance. A few of the many additional targets are listed here.

The most extreme example of this approach is New York City Mayor Bill de Blasio’s commission to consider the removal of “all statues and monuments that in any way may suggest hate or division or racism, anti-Semitism–any kind of message that is against the values of New York City.”  Given the ever-evolving “values” of our PC culture, are any historical figures unblemished enough to retain their pedestals under these criteria?

Mass removal of monuments won’t help bridge our racial divides but could widen them.

The most unfortunate aspect of the wholesale campaign against Confederate and other monuments is that it distracts attention from  confronting more serious racial issues. (See here and here.) The monuments have attracted little interest or concern until now. There is no reason to think that their presence has damaged race relations; nor is there any reason to expect that their removal will improve race relations. Regrettably, the current hype over the monuments is typical of many contemporary approaches to race issues. We tend to opt for symbolism and tokenism over the much more difficult work of exploring underlying causes and solutions. This may afford a “feel good” moment of self-righteousness but it accomplishes nothing of substance and ultimately trivializes racial concerns.

Worse still, attacks on the monuments may well exacerbate racial polarization, thereby serving the interests only of extremists on either side who benefit from it. Those who see the United States as fundamentally and irredeemably racist will not be mollified by removal of Confederate monuments. This will only encourage demands for action against other historic figures with racially suspect aspects to their pasts. At the other extreme, white nationalists and their ilk will seize upon removal of monuments as further evidence that white culture is under attack and in need of their version of countermeasures. Fortunately, most people fall between these extremes. However, polling indicates that a majority of Americans do not view Confederate memorials as racist and thus favor their retention.[3] They would likely view removal of the monuments as an unwarranted punitive attack on our history and another example of political correctness run amok. This, in turn, could cause them to look skeptically at more meaningful initiatives to address racial problems.

[1] Some go so far as to suggest that Western civilization in general is racist.

[2] One could maintain that the Confederates did not set out to be “traitors.” Before the Civil War, there was at least a plausible argument that States had a right to secede from the Union. Indeed, certain States in New England were the first to threaten secession. Of course, this argument was effectively put to rest by the Civil War. A Supreme Court decision shortly thereafter confirmed that secession was unconstitutional.

[3] The polls show that African-Americans are ambivalent on the issue. According to the polls, leftist ideologues are the only group to strongly support removal of Confederate iconography.

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.

The latest “bombshell” news regarding President Trump and the Russia investigation is a report, based on leaks from anonymous officials, that special counsel Robert Mueller is now “investigating” Trump for possible obstruction of justice. This is hardly surprising. Allegations of obstruction by Trump are rampant and fall squarely within Mueller’s responsibility. He couldn’t very well simply ignore them. Moreover, there are some factual issues that need to be tied down.[1] But does the investigation pose real danger for Trump? That probably depends on him. Trump likely has nothing to fear from the underlying issues Mueller is investigating. On the other hand, Trump’s conduct as the investigation proceeds could very well bring him down.

Presumably, the two issues Mueller is looking at regarding Trump are possible collusion with the Russians over their election meddling and obstruction of justice. Based on an objective analysis of what’s publicly known so far, particularly former FBI director Comey’s testimony before the Senate Select Committee on Intelligence, there appears to be no basis for criminal charges on either issue, assuming Trump could be charged.[2] Nor are there any credible grounds for impeachment.

Evidently there is not now and never has been anything to the Trump-Russia collusion issue. The cascade of leaks concerning the broad Russia investigation hint that it now focuses on contacts between Trump associates and the Russians that have nothing to do with election-meddling. Even Trump’s opponents seem to have largely abandoned the election collusion issue, concentrating instead on the issue of possible obstruction of justice from Trump’s interactions with Comey.

With regard to the obstruction issue, Comey’s testimony before the Intelligence Committee confirms that Trump repeatedly violated norms of presidential behavior and then lied about it. However, what Comey presented falls well short of making a case for obstruction of justice either on the facts or the law. Mueller probably already recognizes this. Comey reportedly consulted with Mueller in advance of his testimony. It’s hard to believe that Mueller would permit Comey to testify about his interactions with Trump at a public congressional hearing if Mueller thought this subject would be a significant part of his investigation. Also, if Mueller anticipated that the Trump-Comey interactions would be important to the investigation, he might well have declined to serve as special counsel given his close friendship with Comey. While this friendship would not be legally disqualifying, it might present a serious appearance problem for a straight arrow like Mueller.

Mueller’s investigation likely will drag on for a long time and veer off into secondary issues, as special counsel investigations typically do. No doubt it will be a significant distraction for the Trump administration at the least, and it could even lead to charges of one kind or another against persons associated with Trump. However, barring the discovery of striking new evidence, Mueller’s investigation is unlikely to pose any legal or dire political threat to Trump himself—if Trump allows it to run its course and if he cooperates honestly with it.

The problem for Trump is that these are very big “ifs.” Trump has repeatedly proven himself to be a master practitioner of foolish and self-defeating behavior. He’s already started down this road with regard to the Mueller investigation, lashing out at Deputy Attorney General Rosenstein and Mueller. His surrogates are actively challenging Mueller’s objectivity. If Trump continues these tactics, and particularly if he escalates them by firing Mueller and other Justice Department officials left and right, he will likely encounter widespread public outrage and, consequently, existential political problems from both Democrats and Republicans. Clearly, the best strategy for Trump in terms of his own self-interest is to stay out of the way of the investigation as much as possible, say as little as possible about it, and cooperate forthrightly to the extent he must get involved. Given his temperament, all of these things probably represent major challenges for Trump.

The area of greatest legal risk for Trump is the specter of testifying under oath in a deposition before Mueller, or even more dangerously, before a grand jury. A face-off between Trump and Mueller’s forces in such a setting would be a potential disaster for Trump. Trump is an impulsive person whose default option seems to be lying his way out of adversarial situations. He apparently lacks the personal discipline to restrain himself or the sense to take advice from those who seek to restrain him.  If called upon to testify, Trump will need to act completely against all of his instincts and scrupulously adhere to the absolute truth (and in the process contradict many of his prior apparently false statements). This may be an insurmountable challenge for him. Trump has offered to provide sworn testimony in the investigation. He might want to reconsider and offer testimony only if specifically asked. If he is asked and complies, it’s hard to see how this would end well for him.

[1] For example, other reported leaks from unnamed officials allege that Trump requested Director of National Intelligence Daniel Coats and National Security Agency Director Mike Rogers to ask former FBI Director Comey to end the Michael Flynn false statements investigation. At a recent congressional hearing, the two officials declined to discuss their conversations with Trump but testified that they did not feel pressured by him.

[2] The Justice Department has long maintained that a sitting president cannot be subjected to criminal prosecution.