The Legal Impact: The Constitution and Democracy in Troubled Times


Thursday, February 18, 2021

John Greabe

Professor John Greabe discusses whether a textualist-originalist approach to constitutional interpretation actually serves democratic interests, as many of its proponents claim. Produced and Hosted by A. J. Kierstead

Read his article:https://www.concordmonitor.com/Constitution-and-democracy-in-troubled-times-38650415 

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Legal topics include constitution, originalism, textualism, civil rights, voting, gerrymandering

Read the Transcript

A. J. Kierstead:

Professor John Greabe talks about his recent article on the constitution, democracy in troubled times. This is the legal impact weekly podcast presented by the University of New Hampshire, Franklin Pierce School of Law. Now accepting applications for JD graduate programs and online professional certificates. Learn more and apply a law.unh.edu. Opinions discussed are solely the opinion of the faculty or host and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire.

A. J. Kierstead:

So John, this podcast is centered around your recent constitutional connections article that was in the Conker Monitor titled The Constitution, Democracy in Troubled Times and that you lay out the difference between the textualist originalist view of interpreting the constitution versus a more modern lens in order to fix the issues with our government. Can you kind of lay out the difference between these two different viewpoints before we dive in deeper into specifics?

John Greabe:

Yeah. I'm happy to. First of all, the different viewpoints, I guess, are necessitated by the way in which a majority of the court that is sort of signed on to the textualist originalist enterprise has interpreted the document. And so the basic conundrum that I tried to surface in this column is this, the argument for textualism and originalism and a textualist originalist approach to the constitution is justified by democracy. We have a democratic form of government. Although many parts of the constitution are anti-democratic. The default is to be a democracy. And yet we give the power of final say about the meaning of our constitution to the least democratically accountable branch of the federal government, which is the judiciary, which holds its appointment for life so long as it doesn't engage federal judges and Supreme court justices, have their judicial appointments for life unless they engage in high crimes and misdemeanors.

John Greabe:

And we've seen recently how hard it is for Congress to find that. And that's, again, that's because we don't want judges to be sort of usurping we the people's prerogative to be the ultimate lawmakers under our constitutional order. And that's a really powerful argument, I think. And I'd like to acknowledge there are different types of textualism and originalism and all sorts of different approaches, but the approach that's ascendant right now has led, in recent years, to a number of efforts to address perceived problems with our democracy being held unconstitutional. All right. So perhaps the most obvious example of this is the interpretation of the first amendment that has been handed down over recent decades. That makes it very, very hard to regulate money in politics.

A. J. Kierstead:

And that's specifically around the case citizens United?

John Greabe:

That's right. And related cases.

A. J. Kierstead:

Yeah.

John Greabe:

That's exactly right. But legislatures, be it Congress or state legislatures, have very little room to maneuver if they want to regulate and limit the amount of money in politics. Another example is the voting rights act. So the voting rights act was first passed in 1965 and it sought to address the fact that the African-American vote was suppressed in parts of the country and it imposed rather unusual requirements that states, which failed to meet certain benchmarks, had to get approval every time they tried to change their election law. Well, the pre-clearance provisions as those approval provisions are called, those were struck down as unconstitutional about eight years ago.

John Greabe:

And what we immediately saw is renewed efforts in some parts of the country to change voting laws and many would say to change voting laws to make it harder for people to vote. That precedent though, I think, stands as a powerful barrier to use of the voting rights act to actually deal with the fact that there are legislatures that are trying to suppress the vote among African-Americans.

John Greabe:

Now the reason they're doing that, they would be the first to admit, is because African-Americans tend to vote along partisan lines. In fact, being African-American is a greater indicator of a likelihood to vote for a democratic candidate then being a registered Democrat is. So it's not surprising in these partisan times that we would see that. Nonetheless, I think it would be difficult for Congress to re-enact the pre-clearance provisions in light of the opinion in that Supreme court case.

John Greabe:

Similar story with respect to partisan gerrymandering. Couple of years ago the Supreme court basically said federal courts can not be involved in claims of partisan gerrymandering and they came within one vote of actually holding that ballot initiatives cannot circumvent the legislature and put redistricting into the hands of independent redistricting commissions. And I suspect that changes on the court since that decision came down probably mean that there are a majority of justices on the court right now who would say that a ballot initiative to sort of bypass the state legislature in terms of redistricting are unconstitutional.

John Greabe:

Now whether the court will revisit that, that's a separate question. And then finally, we have examples from the '90s where the Supreme court struck down term limits in Congress as unconstitutional and also struck down the line item veto. Now I'm not saying that any of these decisions is wrong, but what I am suggesting is that on the one hand we have this default towards democracy for a reason and that's what makes the textualist originalist argument a powerful one. It serves democratic interests in the abstract, but the way in which textualism and originalism are actually being put into practice, at least by a majority of this Supreme court, is quite regularly leading the court to say no to legislative majorities who are trying to experiment with various measures that they think might help relieve some of the pressure that our democracy clearly is under right now.

A. J. Kierstead:

I mean, this is kind of an existential crisis. I've made no bones about it with previous discussions with Buzz over similar topics where I'm a little skeptical on both sides of this topic, but I mean, it's kind of an existential crisis where what would the founding fathers ultimately say about the ways of interpreting it? Would they say, "No. The constitution comes first," or would they say, "No. The democratic process comes first."

John Greabe:

You know, we tend to think that the founding fathers were of one mind on some of these basic issues-

A. J. Kierstead:

Yeah.

John Greabe:

But the reality is they weren't. There's-

A. J. Kierstead:

Definitely not.

John Greabe:

Divided as we are. And that's actually part of the argument within textualism and originalism about how one ought to do it. Again, the ascendent methodology says that constitutional text needs to be understood as it would have been understood at that point in time that it became law. This is the original public meaning of the law. And again, that is justified by reference to democracy. There are some textualist originalists who say, however, that the founding fathers, especially when they spoke in abstract language, should be understood to have invited future generations to pour their own meeting into constitutional text. There's nothing, in other words, in the constitution that makes clear that the constitution should be understood to be time dated and they have lots of arguments why it would be better for we the people of 2021 to be able to give meaning to what we think equal protection of the law requires or due process or free speech.

John Greabe:

So that's a debate that's been-

A. J. Kierstead:

Yeah. I mean-

John Greabe:

Been with us forever and it probably would have been reflected had the founders ever debated textualism and originalism. There would have been a difference of opinion among them on that very question.

A. J. Kierstead:

I mean, wouldn't a valid argument be by the founding fathers that we gave you the amendment process.

John Greabe:

That is an argument and it's true and we have amended the constitution only 17 times since 1791. The first 10 amendments came in a chunk when the bill of rights were added to the constitution, 1791. Again, it's a very reasonable point that is made in response. The reality is that the process of amending the constitution is so arduous that it's somewhat difficult, but never say never, but it's somewhat difficult to see constitutional amendments being adopted right now because of the super majoritarian requirements for doing so. You need two thirds of both houses of Congress to sign off on our proposed constitutional amendment and then you need three quarters of state legislatures to approve it. There's almost always going to be a sizeable interest that is benefiting from the status quo that's going to be opposed to any constitutional amendment. And it just doesn't take very much to block an amendment to the constitution.

A. J. Kierstead:

I don't mean to be pushing too hard against you on this, but-

John Greabe:

No, no.

A. J. Kierstead:

It's super interesting to me. I mean, isn't there a kind of inherent problem with consistent interpretation of the constitution if every 50 to 100 years we make considerable changes into the way we view the constitution.

John Greabe:

You know, there's absolutely a downside because I think there's a lot of force to this is a position that justice Scalia argued in favor of why you need to understand the text in a time dated way because it's like taking your finger out of a hole in a dam or opening the door. Once you open it, you inevitably invite judges to pour their own values and pour their own meaning into the constitution. And the judges who will do so at the top of the heap, the United States Supreme court, are not judges that we can recall through the electoral process. So if they're imposing values on the rest of us that we don't share through constitutional interpretation that can be extraordinarily frustrating in a political society that is at bottom supposed to be a democracy. So it is, it's a very, very powerful argument and it may well turn on how comfortable one is with judges exercising power.

John Greabe:

The argument you can make back against that is that those who get appointments to the US Supreme court are not typically highly marginal characters. I mean, they have to be-

A. J. Kierstead:

Yeah.

John Greabe:

Appointed by the president, they need to be confirmed by the Senate. These are very, very high stakes nominations as we've seen recently. So it's not likely that we would see someone appointed to the Supreme court who would suddenly say, "I think we should reinterpret this whole thing from scratch." That's unlikely to happen, but again, back and forth we go, the argument goes round and round.

A. J. Kierstead:

And there's been a lot of, it seems like a lot of the important decisions that go on the more modern interpretation or civil rights oriented like gay marriage, going back to Jim Crow laws going away, things like that must have been more in the modern interpretation as opposed to a strictly textualist originalist view I'd imagine.

John Greabe:

Yeah. The big question is Brown vs. Board of Education-

A. J. Kierstead:

Right.

John Greabe:

There is a pretty strong argument that Brown versus Board of Education it would have been inconsistent with the understanding held by a majority of the people who were alive and following the issue at the time that the equal protection clause became law. Now there are originalists and textualists who have said that Brown was correct from an originalist textualist position. And then there are critics who say, "Well that just proves the limitations in the textualist originalists enterprise because it proves that you can get to where you want to go while purporting to be a textualist and an originalist." It is the facts that those are the issues that have been most salient and that people care the most about for really understandable reasons right now.

John Greabe:

And so in making this argument that we ought to think of democracy not just in the abstract, but actually in terms of what this method of constitutional interpretation leads to in terms of the Supreme court throwing up stop signs to majority's today who are trying to include things. Again, I'm not arguing that any of these decisions are wrong, but just about every decision that I listed or made reference to in when I was talking to you was a five four decision except for one, which was a six three decision. That was the [inaudible 00:12:53] case.

John Greabe:

So these are not slam dunks. These are cases where nobody would say that you just look at the text of the constitution and the answer is totally obvious. And what I'm suggesting is maybe building a presumption into constitutional interpretation that says that we ought to really defer to legislative majorities today who are trying to address obvious problems with our democracy and should not be too aggressive in deploying judicial review to say, "Sorry. We can't do that."

A. J. Kierstead:

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