Judicial minimalism seeks to have the court reach "narrow" and "shallow" opinions. Narrow opinions are ones that "do not wish to resolve other, related problems that might have relevant differences." (Cass R. Sunstein, Testing Minimalism: A Reply, 104 MICH. L. REV. 123 (2005)) Another statement of narrowness is “If it is not necessary to decide more to a case, then in my view, it is necessary not to decide more to a case, ...." (John Roberts address to Georgetown University law graduates 2015).
Shallow opinions are ones that "do not take a stand on the foundational debates in law and politics. Ibid 123. Thereby, leaving the fundamental question to the other branches of government for resolution.
In Baker v. Carr, the court held that "... complaint's allegations of a denial of equal protection presented a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision." The decision is both narrow, not addressing other past or possible cases, and shallow in that the lower court's decision was reversed and the case remanded for further action not inconsistent with the findings of the Court.
The Court might have held that the State of Tennessee was in violation of its Constitution and stated that state legislatures are empowered and limited by state Constitions, subject to determinations of the State Supreme Court regarding the meaning of the state constitution. Such a ruling would have been both broad and deep, affecting a number of questions not currently before the Court.
Judicial minimalism provides guide to choosing between which of these two possible holdings the Court should reach. Judicial minimalism does not provide a method of deciding the fundament question: "Is the state legislature bound by the state consitution's meaning as determined by the state supreme court."
A theory of constitutional interpretation would provide a heuristic or method for deciding the fundamental question in Baker.
Akhil Reed Amar defines intratextualism as "read a contested word or phrase that appears in the Constitution in light of another passage in the Constitution featuring the same (or a very similar) word or phrase." Amar Intratextualism 748 (emphasis added) Intratextualism limits itself to the specific text contained within "four corners of the document". Intratextualism focuses on comparing specific words or phrases, not concepts.
Roe v. Wade uses intratextualism, if it uses intratextualism at all, to determine whether or not their is a right to privacy and whether or not that right "encompasses a woman's decision whether or not to terminate her pregnancy." Ibid 153.
Roe cites a number of previous decision, each referring to one or more portions of the Constitution, in support of its finding of a right to privacy. Blackmum appeals to the concepts embedded in the text and not the specific words or phrases cited. By referring to the concepts and not the words or phrases, Blackmun does not use intratextualism to reach the finding of Roe.
[Those willing to accept the validity of the statements above may forego reading the detailed presentation below.]
"The Constitution does not explicitly mention any right of privacy." Ibid 152. Blackmun finds that the right to privacy stems from "a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891)". Botsford ruled that a person may not be compelled to submit to a "surgical examination" in a civil action for an injury. "No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law." (emphasis added) Botsford finding is based on the common law. The case does not appeal to the text of the Constitution for the "right of every individual to the possession and control of his own person" but rather to Cooley on Torts 29. Cooley on torts and the common law are not are not within the abmit of Amar's intratextual examination. The only reference to the Constitution in Botsford concerns the Seventh Amendment right to trial by jury. Botsford 256.
The other cases in which "the Court or individual Justices have, indeed, found at least the roots" of a right to privacy are: Stanley v. Georgia, 394 U. S. 557, 564 (1969), Terry v. Ohio, 392 U. S. 1, 8-9 (1968), Katz v. United States, 389 U. S. 347, 350 (1967), Boyd v. United States, 116 U. S. 616 (1886), Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting). An alternate source is the Ninth Amendment: Griswold v. Connecticut, 381 U.S. at 486 (Goldberg, J., concurring) or in the "concept of liberty guaranteed by the first section of the Fourteenth Amendment, , see Meyer v. Nebraska, 262 U. S. 390, 399 (1923)." Roe 152.
To determine if Blackmun is using intratextualism in finding a right to privacy, it is necessary to examine if and how the text of the Constitution is used in each of the remaining cases.
Stanley v. Georgia: "the Constitution protects [in the First Amendment] the right to receive information and ideas" and "Moreover, in the context of this case -- a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home -- that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy." 564. (emphasis added) While not stated explicitly, the Constitutional words and phrases are: "freedom of speech, or of the press" contained in the First Amendment.
Katz v. United States: "For the Fourth Amendment protects people, not places. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." The Constitutional text is "the right of the people to be secure in their persons, houses, papers, and effects".
Terry v. Ohio: "We have recently held that 'the Fourth Amendment protects people, not places,' ... and wherever an individual may harbor a reasonable 'expectation of privacy,' id. [Katz v. United States, 389 U. S. 347, 351 (1967)] at 361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable governmental intrusion." The Constitutional text cited one paragraph earlier is "the right of the people to be secure in their persons, houses, papers, and effects" contained in the Fourth Amendment.
Boyd v. United States: "a compulsory production of a party's private books and papers ... is within the spirit and meaning of the [Fourth] Amendment." "Constitutional provision for the security of person and property should be liberally construed." Boyd 617. The Constitutional text is "the right of the people to be secure in their persons, houses, papers, and effects".
Olmstead v. United States: "To protect that right [the right to be let alone], every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." The Constitutional text is "the right of the people to be secure in their persons, houses, papers, and effects".
Griswold v. Connecticut: "In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion." In "NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the 'freedom to associate and privacy in one's associations,' noting that freedom of association was a peripheral First Amendment right." 483 (emphasis added) The Constitutional text may be "freedom of speech" or "right of the people to peacefully assemble". As noted later "The right of 'association,' like the right of belief (Board of Education v. Barnette, 319 U. S. 624), is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means." 483 Furthermore, " Various guarantees create zones of privacy. ... The right of association ... [noted above] ... The Third Amendment, in its prohibition against the quartering of soldiers 'in any house' ... is another facet of that privacy. The Fourth Amendment [as noted above] .... The Fifth Amendment ... enables the citizen to create a zone of privacy .... The Ninth Amendment provides ... rights ... retained by the people." 484
In Blackmun's statements in Griswold, the concept of the right of privacy underlies the Constitutional text of each Amendment referenced. But the Constitutional text is neither cited nor compared from one passage to another. The word that is noted repeatedly is privacy, a word that does not appear in the Constitution. Without same words or phrases being cited from two or more places in the Constitution, intratextualism is left without the raw material upon which it is to operate. Therefore, Roe is not an example of intratextualism.
Original Intent Originalism places judges in a difficult position. They must be able to determine:
Shifting the perspective from original intent to original public meaning may help address the first problem by appealing to a "public" intent rather than that of specific individuals. However, in doing so, it sharpens the second problem, for now we cannot consult the writings of specific individuals for unimpeachable testimony as to their intent. Should we turn to the law of the period for the expression of public intent, then the third problem becomes all the more acute. Public meaning originalism saves us from being devoured by Scylla only to be drowned by Charybdis.
One might look to Richard Posner's assessment: "Originalism is not an analytic method; it is a rhetoric that can be used to support any result a judge wants to reach." Posner, Overcoming Law, 1995 at 251 or Thomas Jefferson statement as to the Framers' valuation of their own intent formed "without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, where they to rise from the dead." Rakove, Original Meanings, 1996 at 367.
The Constitution can be view as divided into two distinct sets of statements: those that are specific rules and those that are "majestic generalities and ennobling pronouncements are both luminous and obscure." Brennan The Great Debate, October 12th, 1985 at 3. Constitutional interpretation focuses on this second set of statements; their ambiguity "calls forth interpretation, the interaction of reader and text." Brennan's understanding of that interpretation, public, obligatory, and consequentialist determine that "When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought." Therefore, "the Justices must render constitutional interpretations that are received as legitimate." Ibid.
"For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs." Ibid 6. The application of the Constitution's text was "Until the end of the nineteenth century, .... property relationships formed the heart of litigation and of legal practice ..." Ibid 7f. That focus has now changed: "Now hundreds of thousands of Americans live entire lives without any real prospect of the dignity and autonomy that ownership of real property could confer." For Brennan, a core, perhaps the core, of the Constitution is its "promise of self-governance by facilitating-indeed demanding-robust, uninhibited and wide-open debate on issues of public importance. ... such discussion is a political duty, it is the essence of self government." Ibid 11. The process does not end a particular point in time, be that 1791, 1868, or today. Rather "We are still striving toward that goal, and doubtless it will be an eternal quest." Ibid.
It is the requirements of preceived legitimacy, uninhibited and wide-open debate, and the effects thereof on the Court, that constitutes "contemporary ratification.”
Ely in Democracy and Distrust (1980) develops a process theory of constitutional interpretation of the Constitution consisting of two elements.
"... by structuring decision processes at all levels to try to ensure, first, that everyone's interests will be actually or virtually represented (usually both) at the point of substantive decision, and second, that the processes of individual application will not be manipulated so as to reintroduce into practice that sort of discrimination that is impermissible in theory." Ibid 101.
This first can be described as protecting and enhancing the provisions "ensuring broad participation in the processes and distributions of government." Ibid 87. The Fifteenth, Seventeenth, Nineteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth Amendments and the Reapportionment Cases ensure the broadening of the participation of the citizenry of the nation in the processes of government. (See Ely 99.) The amendments extended the franchise to portions of the citizenry previously excluded based upon color, race, previous condition of servitude, gender, residence, wealth (poll tax or other tax), and age.
The Reapportionment Cases examined districting of and representation in state legislatures determined, inter alia, that scheme of representation in the United States Congress is unique to the Federal Government and is unconstitutional at the state government level. State government representation must be based upon population, not administrative entities such as counties. The Court found that the state constitutional requirement of "each county shall be entitled to at least one representative", mirroring the United States House of Representatives in which each state shall be entitled to at least one representative, unconstititutional. Reynolds v. Sims, 377 U.S. 533, 539 (emphasis added) To reach the decision in Reynolds, the Court had to make a substantive, not procedural or process determination, that the "representation-reinforcing approach" required a distinct method of apportionment in the state legislatures as compared to the federal legislature. "The system of representation in the two Houses of the Federal Congress .... is inapplicable as a sustaining precedent for state legislative apportionments." Ibid 377 The first of Ely's two parts, as process, is unable to distinguish between the constituationality of non-population based aportionment at the federal level and the unconstitutionality of the same at the state level.
The second part, that of preventing the majority, or their representatives, from "denying that minority the protection afforded other groups by a representative system." requires the courts to intervene when the political branches of government disadvantage some minority or fail to address existing discrimination.
To implement the second part of Ely's vision, one must have a standard against which to compare the existing situation. Only through comparison with a suitable condition is it possible to determine that the existing situation is or is not sufficiently protective of a minority. Creating a reference standard requires substantive decisions as to what constitutes a system of government and representation that conforms to the required presevation of liberty. Ibid 100. This is the question that the Court is currently facing in the redistricting cases in Alabama, Georgia, Louisiana, and North Carolina. The situation in the states mentioned may be compared usefully with that in Massachusetts where the approximately 30% to 40% of the population votes Republican, yet is unable to elect a single Republican to the United States House of Representatives. (Moon Duchin, Locating the Representational Baseline: Republicans in Massachusetts, 2018 at 1)
In assessing the constitutionality of apportionment, one must determine the weight, if any, to be assigned to matching electoral districts boundaries with county or city boundaries. Similarly, are polling places to be distributed according to the distance that a voter must travel to reach their assigned polling place or to the number of voters per polling place or the number of polling places per county or electoral district without reference to distance or population? Choosing among the alternatives is a judgement call that proceeds the procedural or process evaluation that Ely advocates.
Consequently, Ely's process theory is unable to address significant questions of constitutional interpretation unless augmented by substantive determinations.
Alexander M. Bickel in his book The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1962, defines the counter-majoritarian difficulty as: "... when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not on behalf of the prevailing majority, but against it. ... it is the reason the charge can be made that judicial review is undemocratic.” Ibid at 16f.
Given that the Supreme Court has declared itself the final arbiter of constitutionality via. Only such laws “which shall be made in pursuance of the constitution shall be the supreme law of the land.” Marbury v. Madison 5 U.S. (1 Cr.) at 180. The political branches, legislature and executive, that are chosen either directly by the people or by electors duly appointed by the people, have no recourse, short of Constitutional amendment to reverse a decision of the Court. The Eleventh Amendment ratified in reaction to Chisholm v. Georgia has constrained the jurisdiction of the Court and thereby resolved the counter-majoritarian difficulty.
The same is not true regarding Congressional legislation. In reaction to Scalia's opinion in Employment Division v. Smith 1990, Congress passed the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIP) seeking to overturn Scalia's opinion. Both RFRA and RLUIPA were the direct expression of the will of the people through their elected representatives. The Supreme Court responded in City of Boerne v. Flores, 521 U.S. 507 (1997) declaring "The case calls into question the authority of Congress to enact RFRA. We conclude the statute exceeds Congress' power." Ibid 511. The counter-majoritarian difficulty remains unaddressed.
Short of a Constitutional Amendment, the court's assertion of powers is unchecked. Given the extreme unwieldiness of the Article V process and the ability of 4% of the national population (thirteen least populous states prevent ratification by three-quarters of the states per the 2020 census) to thwart the will of the remaining 96%, the counter-majoritarian difficulty constitutes a severe problem.
One choice is to view Brown as a decision to address a prevasive problem of unequal educational opportunity manifested in the educational facilities and staff provided to minority students as compared to those provided to majority students. Per this view, the decision can be seen as an implementation of the second element of Ely's process view of Constitutional interpretation. (See 5 above.) In this sense the decision is remedial, not aspirational. The documented failure to implement the "separate but equal" holding of Plessy v. Ferguson compelled to Court to after an interval of decades to address the states' failure to comply with Plessy. Such a reading of the decision focuses on the actions of the school boards and not on the effects or results of the boards' actions. Both Plessy and Brown sought to realize an "equality of opportunity".
Alternaively, Brown can be viewed as focusing on the student and the student's perception of their treatment by the school boards. In providing significantly less valuable education opportunities as expressed by the staffing and facilities which minority children were required to attend. This second understanding of the decision more closely matches the text: "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group." Brown v. Board of Education of Topeka, 347 U.S. 483, 494. Brown I did not decide upon a remedy to the unconstitutional condition. The remedy decided upon in Brown II (Brown v. Board of Education of Topeka, 349 U.S. 294) was desegregation of public schools and assigned the task of implementing that remedy to the schools (school boards) themselves. In Green v. County School Board, the Court dicated the timing and the method of realizing desegregation.
Brown aspired to eliminate one consequence of a slave caste system that had endured for the first ninety years of the Republic.
Originalism articulates either an intent (1.0) or public meaning (2.0) believed to be embodied in the Constitution and the Bill of Rights. Among the views expressed by the Framers and the ratifiers are those concerning freedom of conscience or religion. Numerous states codified such freedoms in their bills of rights and the constitutions of their representative governments. Examples include: the Constitutions of Maryland (1776), New Jersey (1776), North Carolina (1776), Pennsylvania (1776), New York (1777), Vermont (1777), etc. (See The Founders Constitution 1987.
Common Good Originalism as explicated by Vermeule and Hammer does not align with the system of representative government held by the Framers in drawing up the Constitution, or the ratifying conventions. While these groups embraced a certain level of paternalism, none envisioned that "Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them--perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them." Vermeule Beyond Originalism 2020. (emphasis added)
Vermeule's Common Good Constitutionalism has a conception of freedom and liberty adopted from "a better conception of liberty as the natural human capacity to act in accordance with reasoned morality." based upon the Papal Encyclical Libertas issued June 20th, 1888 (URL in the original linking the italicized words to the encyclical) which denies freedom of conscience: "30. Another liberty is widely advocated, namely, liberty of conscience. If by this is meant that everyone may, as he chooses, worship God or not, it is sufficiently refuted by the arguments already adduced."
Hammer's concept of Common Good Originalism looks to the "seven enumerated ends of government in the Preamble ... represents the statesman’s view and description of the common good of the nation as a whole." Hammer Common Good Originalism 2021, 929. Hammer denies that representative government can arrive at decisions that are both constitutional and at odds with his views: "state-sanctioned abortion is itself unconstitutional, regardless of what plebiscitary majorities purport to decide." Ibid 951. Futhermore, Hammer adopts John Eastman's position "against Fourteenth Amendment-mandated birthright citizenship" without stating explicitly his views of Common Good Originalism extend to nullifying the first sentence of the Fourteenth Amendment. (Ibid 951). Hammer shares "Veremule's belief that solipsistic citizens’ 'own perceptions of what is best for them' are, for all intents and purposes, constitutionally irrelevant." Hammer, Common Good Originalism, 2021 at 952
Common Good Constitutionalism or Originalism is in direct conflict with both Original Intent (1.0) and Original Public Meaning (2.0) Originalism as demonstrated by their denial in part of the First and Fourteenth Amendments.
Jack Balkin's 2019 article The Recent Unpleasantness: Understanding The Cycles of Constitutional Time posits that there are three cycles at work in American politics. The three cycles are: the rise and fall of political regimes; polarization and depolarization; and decay and renewal of republican government. Ibid 257. The durations of these cycles are not fixed.
The first cycle, political regimes, is adapted from the work of Yale's Stephen Skowronek. The second cycle, polarization, is treated lightly in the article. While Balkin notes the peaks of polarization at the outbreak of the Civil War and the current ongoing response to the Civil Rights Movement via the Republican Southern Strategy, and the intervening periods of depolarization, he declines to speak of causes. Balkin'a article focuses on the third cycle, the decay of republican government which he "constitutional rot" consisting of three dimensions and four basic causes.
Currently, the nation is experiencing both the difficulties of an end of the Reagan regime Ibid 265, peak polarization Ibid 270, and constitutional rot. Ibid 279. It is the simultaneity of the three that makes the current political and social environments so fraught. Note: Balkin published in 2019, two years before January 6th, 2021.
The Ninth Amendment, along with the others in the Bill of Rights, resulted from a promise made by Madison at the Virginia ratification convention. Virginia ratified with 40 recommended amendmdents, half of which enumerated rights, the other half being changes to the document itself. New York ratified and included 30 amendments. Other states provided their own lists of amendments to the Constitution. Madison selected from among the amendments submitted and crafted a set of "nine amendments ... which would be added to or incorporated within the body of the Constitution ...." Maier Ratification 2011 at 447. The House of Representatives replaced these with amendments to be appended per the motion of Roger Sherman. Ibid 453. A set of seventeen proposed amendments was transmitted to the Senate. In the end, twelve were adopted by Congress and transmitted to the states for ratificatio.
In reducing the number of amendments to the dozen submitted to the states for ratification, the Ninth was created as "a definitive solution to the ratificationists' problem of how to enumerate the rights of the people without endangering those that might be omitted." Levy Origins of the Bill of Rights 2001 at 249. The Ninth allowed each state to read into the proposed list of amendments those additional rights that the particular legislature required to be included.
Ryan Williams' suggestion that the Ninth be read as a rule of construction to prevent negative inferences, such as Scalia did in Callins v. Collins, does not comport with the federalist and anti-federalist literature, published during the ratification period, arguing over the need for and wisdom of a list of enumerated rights in the Constitution. Ryan Williams The Ninth Amendment as a Rule of Construction 2011 at 559. That dispute, which nearly scuttled ratification and threatening a Second Constitutional Convention, was resolved through the Ninth's guarantee of unenumerated rights.