t is a rare and sobering thing to see a roomful of people rendered speechless, as if punched in the solar plexus by a proposition so terrible and true that it leaves them seeing stars. I saw it happen in the summer of 2015 when I joined a group of attorneys, scholars, and government officials in Colorado for a seminar on the constitutional doctrine of the separation of powers.
Our teacher was none other than Supreme Court justice Antonin Scalia. “You are not going to learn anything that will make you any money,” he told us as we convened. “You’re here to be good lawyers. You’re here to be learned in the law.”
After talk of Montesquieu and Madison, Hamilton and Tocqueville, we got down to cases: Supreme Court cases, to be exact, each one relating to the relationship between freedom and the structural constitution. But when we got to U.S. v. Windsor, the controversial 2013 case in which a 5-4 majority struck down the Defense of Marriage Act (DOMA), the room tensed. Justice Scalia had written a blistering dissent in the case, taking the majority to task for agreeing to hear the matter in the first place. “The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case,” he had written.
Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?
It was a good question. The procedural history of the case was utterly bizarre. President Obama had instructed the Department of Justice not to defend DOMA from constitutional challenges because he believed that the statute was unconstitutional. Yet at the same time, the president had instructed other executive agencies, including the Internal Revenue Service, to continue enforcing DOMA’s provisions. It was at this point that a small group within the House of Representatives—the Bipartisan Legal Advisory Group, or BLAG—filed an amicus brief attempting to defend the constitutionality of the law.
According to the majority, this brief enabled the BLAG to adopt the very cause the executive branch had abandoned on the steps of the courthouse. It was an unprecedented procedural move that enabled the majority to inject the high court into a volatile and sensitive political debate. But, Scalia assured the seminar’s participants, we need not worry too much about the long-term implications of Windsor. The holding was of limited precedential value. The majority got what it wanted—it killed DOMA—and there was little by way of a rule of law that emerged from the case.
From the back of the room, I asked Justice Scalia whether, notwithstanding Windsor’s limited precedential value, the threat to the separation of powers from “executive non-enforcement” had grown critical. In the wake of Windsor, had it become easier for the president not only to decline to defend laws that he found objectionable, but to decline to enforce laws that he found objectionable? It is, after all, one thing for the president to refuse to defend a law because he considers it unconstitutional. It is quite another for the president to refuse to enforce a law because he considers it bad policy—which is precisely what President Obama has tried to do with respect to federal immigration and drug law. Was there any basis, I asked, upon which the Supreme Court might rule on the constitutionality of executive non-enforcement?
It all depends on Congress, Justice Scalia responded—and “if Congress doesn’t do its job and challenge the president,” he said, “what we have is a failed democracy.” The blow landed. The room fell silent. The moderator called for a break.
Justice Scalia’s remark has haunted me since last August. One’s blood runs cold at the thought that the American experiment might well be failing. And with Antonin Scalia’s sudden passing last month, one wonders whether one of the republic’s last lines of defense, the separation-of-powers doctrine, will be overcome by a Court that is growing increasingly unmoored from the text of the Constitution. For the originalism he espoused is more than just an interpretive method: it is a philosophy of government. And Justice Scalia was one of its leading proponents, practitioners, and defenders.
Originalism is preoccupied with what it means to live in a government of laws and not of men. It asks who, precisely, is doing the governing and by what constitutional authority. The Constitution is the most fundamental of our laws. It is also a fundamental law over which the governed exert substantial control. It was framed in a closed room in Philadelphia, but it was ratified by We the People and has been amended 27 times. In this important respect, We the People are the architects of the frame of government within which we live. Through its political branches, we create the laws by which we are ruled. In the United States, constitutional government is the very essence of self-government.
Originalism privileges the will of the people over the will of individual judges on the ground that there is no higher expression of the popular will than the text of the Constitution itself.
To Hamilton, the legislature posed the greatest threat to liberty while the judiciary was “the least dangerous” branch. For this reason, he wrote:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void….It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents.
Nor, for that matter, could judges substitute their will for the act of judging—that is, interpreting the laws—without encroaching upon the lawmaking function.
The trouble, of course, is that judges may be tempted to construe the law not as it is, but as they wish it to be. The interpretive enterprise invites abuses of discretion, and so the manner in which judges decide cases is essential to preserving the separation of powers. “To avoid an arbitrary discretion in the courts,” Hamilton wrote, “it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”
As a judicial philosophy, originalism seeks to bind judges to strict rules of interpretation. As a philosophy of government, it privileges the will of the people over the will of individual judges on the ground that there is no higher expression of the popular will than the text of the Constitution itself. To the originalist, this text should not be interpreted in light of changing times and changing circumstances. Rather, it should be interpreted in accordance with the original meaning of the text.
Originalism is committed to the proposition that the Constitution means what it says and says what it meant when it was written. The Constitution is neither a dead letter nor a living document. It is an enduring frame of government. It is the function of the judge to recover, interpret, and apply the original meaning of the text of the Constitution no matter what novel situations arise. This is no semantic game. It is an enterprise that cuts to the very essence of political legitimacy.
As Justice Scalia explained in Reading the Law,
Originalism is the only approach to text that is compatible with democracy. When government-adopted texts are given a new meaning, the law is changed; and changing a written law, like adopting written law in the first place, is the function of the first two branches of government—elected legislators and (in the case of authorized prescriptions by the executive branch) elected executive officials and their delegates.1
The approach is not perfect, but it offers something that no other interpretive approach can offer: a fixed criterion by which to interpret laws and judge cases.
The only alternative to this approach is to invite judges to rule us—and in the realm of equal-protection jurisprudence, they do. Scalia once called the area “an embarrassment to teach,” filled with decisions “tied together by threads of social preference and predisposition.”2 This is particularly evident, Scalia wrote, in the Court’s affirmative-action jurisprudence, where judges effectively designate “debtor races” and “creditor races” in the interest of restorative justice. From college admissions to government contracts, the courts have allowed entire groups of people to be treated differently on the sole basis of their race. Here, judges have created an Orwellian line of decisions that tortures the very notion of equal protection of laws in order to secure preferred societal outcomes. Their logic is, in essence, this: All people are entitled to equal protection, but some groups are entitled to protection that is more equal than others.
It is by constitutional design that federal judges are neither representative of nor accountable to the electorate. The political appointment of life-tenured judges is meant to preserve the independence of the judiciary from the political branches, not to render the federal judiciary a governing committee in black robes. Originalism demands that judges be mindful of this. It demands judicial restraint because the integrity of the structural constitution can be maintained only by the scrupulous preservation of the separation of powers. A flexible approach to the separation of powers is as hazardous to liberty as a flexible approach to the structure of a house is to the safety of its inhabitants.
The very text of the Constitution carves out a limited role for the federal judiciary. Article III confers upon it jurisdiction over cases or controversies—that is, authority to provide injured parties with judicial remedies against the person or authority responsible. Sometimes, in the course of exercising this power, the Court must determine the constitutionality of a law. Oftentimes the Court does this only incidentally. For example, in Marbury v. Madison, which recognized the very power of judicial review essential to Hamilton’s characterization of the judicial branch, the question of whether Congress could pass a law that violated the Constitution was secondary to the question of whether the plaintiff, William Marbury, had a right to the particular court order he sought.
The Constitution does not confer upon the federal judiciary a free-roaming charter to police the executive and legislative branches. The judiciary is neither a babysitter to the president nor a homework checker to Congress. The Constitution’s grant of power to the courts is modest and determinate: It grants them the authority to decide cases or controversies that exist only when litigants possess “standing” to make the claim that they have been harmed.
Some injuries, however, are neither direct nor personal. A law that allows people to eat their pets, for example, may strike people as morally repugnant, but moral repugnance does not give rise to standing no matter how irked the claimant is. To these injuries, the separation of powers offers a different remedy: participation in the political process. Other injuries may arise because the Constitution is insufficient to the task, which is inevitable in a system of limited government. In these cases, the separation of powers demands that the people alter the text of the Constitution by amendment, not the judiciary by interpretive fiat.
As the electorate grows increasingly frustrated with the ineffectuality of Congress, it grows more acquiescent in allowing courts to fill the vacuum.
Judicial restraint cuts all ways, though. The standing doctrine may well prevent the Supreme Court from deciding the merits of a current challenge to President Obama’s refusal to enforce federal immigration law. In United States v. Texas, which the Supreme Court will likely decide this spring, 26 states are challenging the constitutionality of the president’s proposed deferred-action program. The program would allow more than 4 million illegal immigrants to remain in the country and work here legally. The Fifth Circuit Court of Appeals ruled that of the 26 claimants, at least one—the state of Texas—had standing because it demonstrated it would have to issue drivers’ licenses to illegal immigrants within the state at a financial loss. The court barred the president from implementing his policy pending the final disposition of the case. The executive branch, the same branch that played fast and loose with the doctrine of standing in Windsor, has appealed the Fifth Circuit’s ruling on the ground that the claimants lack standing.
It is unclear how the Court will rule on the standing question in U.S. v. Texas, but in a sense it does not matter. The states should not be in this alone. The Constitution provides clear recourse in such a situation: Congress must rouse itself and defend its legislative authority against nullification by the executive. History reveals the frailty of the executive branch whenever Congress calls it to task. It was Congress, not the president, that designed and implemented Radical Reconstruction in the post-bellum South. And it was Congress, not the courts, that brought the Nixon administration to its knees during the Watergate scandal. Congress has the constitutional authority to sue the president over his refusal to uphold his responsibility under the Constitution’s Article II to take care that the laws of the United States be faithfully executed—but Congress is not exercising that authority.
This is why Justice Scalia’s lifework remains so vitally important. By abdicating its constitutional interest in defending its laws, Congress is also abdicating its political responsibility to the people who elected its members. And as the electorate grows increasingly frustrated with the ineffectuality of Congress, it grows more acquiescent in allowing courts to fill the vacuum. Political leaders are taken off the hook, and judges are allowed greater freedom to decide cases not in accordance with the text of the law but in accordance with the discretion of the judge. Judicial power is transformed into something quasi-legislative.
This is, I believe, what Justice Scalia meant when he said, “If Congress doesn’t do its job and challenge the president, what we have is a failed democracy.”
With Justice Scalia’s passing during an election year, the nation finds itself face to face with a choice of historic proportions. The Senate is unlikely to approve a successor to Scalia until after the election; and when it does, that justice will likely shift the balance of ideological power on the deeply divided court. Not since 1788 has the nation faced an election in which all three branches of government were on the line. Voters will decide who controls the presidency, the Senate, and the Supreme Court. If ever there was a time for a renewed commitment to original principles, it is now. Otherwise, Antonin Scalia’s warning will become prophecy, and we will have a failed democracy.
1 With Bryan Garner, pp. 82–83
2 The Disease as Cure, Washington University Law Quarterly 147 (1979)