We all have our favorite memorials. Even memorials that are not our favorites include inspirational quotes and sayings that we can use to bash folks we disagree with. Donald Kettl aims some Jefferson Memorial engravings at Justice Amy Cony Barrett and the late Justice Scalia. but his swing is way off the mark. https://www.marketwatch.com/story/thomas-jefferson-has-a-clear-message-for-the-supreme-court-about-the-constitution-and-originalism-11603988774 Even though I believe that text requires context, and believe that Congress does organize itself in committees and does include legislative reports, I don’t think the arguments of textualists and originalists should be mischaracterized. Therefore, a blog post is warranted. Mr. Kettl, I see your Jefferson engravings and raise you dolphins and a water crane.
Disposing of Donald Kettl’s Mischaracterization of Originalism
Before I go on my favorite memorials tangent, I should say Kettl’s topic is Constitutional interpretation. Kettl criticizes originalists like Scalia and his former clerk, the recently confirmed justice Barrett. As characterized by Kettl, the originalists have too much reverence for the Founding Fathers, and as a result prevent Constitutional change. This locks the country in outmoded laws and ways of life. If Kettl is correct, the originalists would have us trapped in the Constitution as written in 1787 by misogynist racists. Except Kettl is not correct.
I was raised in the city in which the Constitution was drafted, and this was how I was trained to address Donald Kettl’s argument.
Yo, Donald Kettl, read Article V. Or, should I say read the original Article V?
That little twist emphasizing the term ‘original’ is pure Philadelphia. Oh, wait, no – I am wrong. That twist is a common human exclamation. It was snarky and inappropriate. Like Article V itself, consider my impolite expression changed to “Please see Article V for methods to amend the Constitution.” In this case, the original writer (me) was not trapped. Often, the best way to change meaning is to change words. Here is an excerpt of Article V of the Constitution.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;
An originalist who reads Article V of the Constitution recognizes that the Constitution can change with the times, or even ahead of the times. An originalist does not believe that our Constitutional provisions are trapped in 1787. New sections can be added, old sections can be removed, and the entire document can be replaced. There can even be a new Convention. We are not trapped by the scribblings of long dead misogynist racists after all. Article V provides for two different methods to change the Constitution, neither of which refers to a majority vote among the justices of the Supreme Court.
I refer the historically curious to Hamilton’s Federalist #85 for confirmation that the Founders knew their Constitution was imperfect and included provisions for amendment. I challenge Donald Kettl et. al. to find an example of an originalist rejecting Article V, or refusing to apply the subsequent 27 amendments on the grounds that they were not part of the original document in 1787.
** Claiming that existing words are dead is not the same as claiming existing words can’t be changed.
Jefferson Memorial Tangent: Kettl’s Chosen Quotes are Good Quotes
In making his erroneous critique, Kettle invokes the Jefferson Memorial in ways that should be amplified. Jefferson and the Founding Fathers believed in the power of the human mind to reason, to direct one’s own life, to progress, and to change. Those sentiments are engraved in stone overlooking the tidal basin in Washington DC, which I encourage everyone to visit, especially during the annual Cherry Blossom Festival. Kettle should be rewarded for praising Jefferson in the current intolerant climate. It is all too likely that the accusation “He quoted Jefferson!” will be enough to brand Kettl a racist. Here are the two Jefferson quotes he chose.
“I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.”
“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind.”
Jefferson and his contemporaries believed in changing the Constitution. In addition to Article V discussed above, more than one state made ratification of the Constitution conditional upon it being amended to include a Bill of Rights, the first 10 amendments.
Nor was the founding generation content to defer to evolving interpretations of the Supreme Court justices. For example, the 11th amendment revised the text of the Constitution to invalidate the Supreme Court’s interpretation in the case Chisholm v Georgia. Later generations followed suit. The 14th amendment’s citizenship clause invalidated justice Taney’s reasoning in the Dred Scott case. In both examples, Chisholm and Dred Scott, Congress and the states used Article V to correct what they considered invalid Constitutional interpretations by the Supreme Court.
Court Packing? What Happened to Article V?
Frustrated with Supreme Court interpretations in high profile cases, some Progressives intend to ‘pack’ the Supreme Court if they attain power. The term packing refers to expanding the size of the Supreme Court so that the current president and Senate can add a sufficient number of justices to change selected Court decisions.
Packing the Supreme Court is Constitutional. It may or may not be wise, but the size of the court is set by statute and is subject to change through standard legislative procedure.
Packing the court is not a resilient way to change Constitutional interpretation. Since 2004, the United States has had (a) Republican President and Republican both chambers of Congress, (b) Republican President and Democratic Congress, (c) Democratic President and Democratic Congress, and (d) Democratic President and Republican Congress. If one party packs the court through statute when it controls the presidency and Congress, the other party can simply re-pack the Court through statute when it takes power. By 2035, we could have 33 seats on the Supreme Court.
Using Article V to change Constitutional interpretation is more difficult but more resilient. The Constitutional text is established by a super-majority (more than 50%) and takes a super-majority to amend.
Twenty-seven times Congress has passed Constitutional amendments by supermajority, which have been ratified by a super-majority of states. In some cases, such as Chisholm v Georgia, the amendments have been directed at specific Supreme Court interpretations that a super-majority of Congress and the states disagreed with.
Partisans have their Supreme Court rallying cries. Throughout US history, Constitutional interpretation affected politics. In the early days of the Republic, partisans differed on the Constitutionality of a national bank, the authority of Congress to legislate slavery in territories, and even Congress’s power to raise taxes on imports when revenues already exceeded expenses.
Current Politics and the Court
Some of the current partisan rallying cries focus on Supreme Court decisions related to abortions, guns, and campaign finances. The problem with textual originalists, some believe, is that they will focus on the Constitution as written. But that is also their virtue. Because Kettl is wrong and neither Scalia nor Barrett would look to 1787 to interpret the 25th amendment, which was proposed and ratified during the 1960s, the originalists can be directed to change their interpretation by changing the text. Use article V.
A common objection I get when suggesting Article V is interest group politics. The late Justice Stevens, who dissented in the Supreme Court’s Heller case recognizing an individual right to own guns, wanted a Constitutional amendment to address the issue – use article V. When Stevens explained that an amendment is simple, he meant the method is clear, well known, and has been shown to be effective. Many anti-gun partisans object that the money of the National Rifle Association thwarts the super-majority in favor of “common sense” gun control. Nowhere do the anti-gun activists admit that the reason they don’t try to use Article V is that the number of pro-gun people is larger than they want to admit. https://www.npr.org/2018/03/27/597259426/retired-supreme-court-justice-stevens-calls-for-repeal-of-second-amendment
For example, I happen to be for gun control. Use Article V. As per the late justice Stevens, I suggest the following amendment and encourage readers to make suggestions. – (delete the 2nd amendment) Section 1: the military is subordinate to and governed by the civilian power. Section 2: Congress may pass laws governing the production, distribution, sale, ownership, and usage of arms. Section 3: No law may discriminate in the regulation of arms based on suspect classifications including but not limited to religious belief, race, or gender.
Consider the NRA too powerful for my suggested amendment? See my favorite memorial.
The Temperance Fountain: My Favorite Memorial
My favorite memorial is the obscure centerpiece of a skateboard park. At the corner of 7th and Indiana, NW, there is a small monument which appears to be to kind fishermen. Walking three sides of it, one sees statues and reliefs of dolphins and fish topped by a crane, all themed with water. The crown is inscribed on those three sides with the words Faith, Hope and Charity. This is one of the few Cogswell fountains remaining in the United States. Its fourth side reads ‘Temperance’ and it was built to memorialize Henry Cogswell’s temperance army, which not only inspired people to drink water instead of alcohol, his army managed to insert the 18th amendment in the Constitution banning the sale of alcohol.
To make a long story short, my favorite Memorial is to the 18th Amendment which banned alcohol. The 21st Amendment repealed the 18th Amendment on December 5, 1933. There was a sports bar on Indiana Avenue across from the Temperance memorial, and I have been known to wander over on December 5th to toast the good intentions of Cogswell’s Temperance Army while watching the Capitals or Wizards on big screen TVs.
Make no mistake about it, advocates of Temperance believed they embodied Kettl’s first quote from Jefferson. Kettl wants us to remember that Jefferson was against any tyranny over the human mind. Temperance reformers “…declared independence from the tyranny of ‘King Alcohol'” They cloaked prohibition in terms of the Fourth of July, the Revolution, and emerging science of social health. https://www.mdhistory.org/king-alcohol-temperance-and-the-4th-of-july/
Inspiration? Consider what Cogswell’s army was up against! Not only was Temperance opposed by every tavern that sold beer, many American governments relied on excise taxes on alcohol. Think about that. The Temperance Leagues defeated an alliance of alcohol producers, local governments, and Joe Sixpack.
By most accounts the 18th Amendment was a dismal failure. Alcohol distribution was taken over by organized crime. Organized crime in turn corrupted local governments charged with enforcing the Amendment. On the individual level, there is evidence that casual drinking declined but binge drinking increased, in part because higher alcohol-content drinks tended to replace lower alcohol drinks.
That brings us to the second Jefferson quote that Kettl recommends. “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind.” Yes, Jefferson might approve of the 18th Amendment experiment, given changes in our understanding of alcohol and social health. But, is progress a straight line?
The 21st Amendment repealed the 18th. American governments could again regulate alcohol distribution and sales, or not. But think again about what the advocates of the 21st Amendment were up against. In order to repeal Prohibition, they had to defeat a lobby that included organized crime, the corrupt politicians allied to or intimidated by organized crime, and several major organized religions.
Conclusion
The Constitution is not perfect. As Kettl points out, Thomas Jefferson believed that the Constitution should be amended with advancements in human knowledge. For confirmation that other Founders agreed with Jefferson, see Hamilton’s Federalist 85, or just read Article V of the Constitution. Originalists like Scalia and Barrett have read both documents. If you think that the NRA or some other interest group is too powerful to rely on Article V, consider (1) your complaint might just be that you don’t have the votes, and (2) the Temperance League defeated a combination of the alcohol lobby and local governments. But most importantly, consider that you might be wrong.
Maybe you just want to bash Conservative justices. I am happy to bash everyone. Please join me in complaining that textualists, including most originalists, underestimate the value of committee reports and other context that prioritizes definitions. Ask me how terms like Collateralized Debt Obligation or Covered Bond have been used in securities contracts compared to how those terms have been used in proposed legislative text. But don’t try to tell me Barrett is stuck in 1787; that is a lie.
To tell me I am wrong, or just to watch the Capitals play the Rangers, I recommend meeting at the sports bar across from the Temperance memorial at 7th and Indiana, NW on December 5th. We will toast the Cogswell’s Army and Article V. Or bring your skateboard during the day. (Not during Covid – I really hate 2020)
https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xi/interps/133
https://constitutioncenter.org/interactive-constitution/full-text
https://avalon.law.yale.edu/18th_century/fed85.asp
https://constitutioncenter.org/interactive-constitution/amendment/amendment-xxi
Independent Perception 