The Living Canvas: Part 1
By Steven J. Colby & Michael H. Feinberg
What do interpretations of the Constitution and of art have in common? Many leading authorities in the legal and art historical fields believe that a text or image should be interpreted through the lens of its creator or its original public meaning. For them, this method ensures that an objective interpretation is achieved because it can be universally understood by all. However, we argue that this belief is a misnomer. By reviewing the historiographies of legal and artistic study, we will show that there is no objective way to interpret legal texts and artistic imagery because there is no universal vocabulary that can capture the interpretive process. The very act of reading a text or viewing an image is itself a subjective experience. Thus, even those who claim to be objective by taking on the role of a creator ignore the ways in which their own biases and assumptions shade their interpretations.
Self-identified “Originalists” who are often aligned with the political right, assert that relying upon the original meaning of the Constitution results in an objective legal interpretation. Criticizing liberal-leaning judges who subscribe to the idea of a “Living Constitution,” Originalists believe that a Living Constitution leads to judges applying their subjective views. Reviewing judicial decision-making in key cases, with consideration of the Enlightenment era Framers’ understanding of the judicial role and a changing society, we show that it is impossible to disentangle the self from decision-making.
Likewise, art historians often aim to completely remove the self from their interpretations. While scholars apply a diverse array of methods such as biography, historical context, psychoanalysis, and iconography, the main purpose is often to take the art object as a primary object to understand a cultural or subject who produced it. What frequently escapes art historical analysis is the way in which the art object appears in the interpreter’s conscious mind. Scholars miss the crucial moment in which an art object appears to the conscious mind before interpretation can take place. Our article will show how an artwork’s appearance may actually be quite removed from the art object itself.
Enlightenment era thinkers of art, including the pioneering art history Johann Winckelmann (1717–1768), directly pointed toward this Winckelmann’s study of art included tracing the origins of beauty to Greek sculptures of naked and young white boys. As much as Winckelmann studied the statues in terms of Greek democracy (at least for white boys), Winckelmann’s history of the statues also included what we might call a sensual or subjective relationship. [1]. Historiographers of art take Winckelmann’s analysis of the statues in terms of a split between objective historical analysis and his subjective experience as a viewer. [2]. This split demonstrates how interpretations of art are not only undergirded by an emotional attachment that exceeds the artwork itself, but also that art objects must appeal to the senses and excite the passions of those who would view the artwork years after creation. Many artists during Winckelmann’s time were inspired to employ antiquity in their projects. Art historians and artists continue to think along the lines of Winckelmann’s perspective.
We propose that Winckelmann’s analysis gets at a larger problem that art historians and legal theorists often face: a longing for a fantasy that is embodied by the Originalist viewpoint. The imbrication of one’s emotional affinity with a text or image contests the posited assumption that there is only one position from which a text or image can be viewed. Winckelmann’s struggle with this is best demonstrated by his analysis of beauty in non-European cultures. For example, Winckelmann argued that white bodies are the most beautiful because they best reflect the rays of light. He concluded his analysis of beauty in different cultures by writing, “we are not able to account for them all.” [3]. To attempt to create a universal position from which beauty can be perceived is to ignore or even violently cast out the ways in which beauty performs in other localities and temporalities. Similarly, in the legal context, the Originalist views of the Constitution fall short due to the fantasy that there is only one objective answer to a legal question.
Following the idea of the “Living Constitution,” as applied in the legal context, we use the term “Living Canvas” to embody the ways in which art mattered and continues to matter in different moments and places. Just as the meaning of the Constitution is shaped by the interpreter’s experiences and changing meanings of the text over time, a spectator’s view of art is impacted by his or her own experiences and the passing of time and changes in society.
Originalism
A prominent champion of Originalism was the late Justice Antonin Scalia, from whom many Originalists draw inspiration. According to Justice Scalia, “the Great Divide with regard to constitutional interpretation is . . . between original meaning (whether derived from Framers’ intent or not) and current meaning.” [4]. To Justice Scalia, judges who look to the current meaning of the text have turned the courts into a legislature, imposing their subjective views of the text’s current meaning in order to reach the result the judge desires. [5].
Proponents of the Originalist approach often accuse supporters of the “Living Constitution” of wanting judges to “legislate[] from the bench.” [6]. What do their comments about not legislating from the bench actually mean? Originalists suggest that they do not place their policy preferences before the intent of the Framers of the Constitution or a legislature enacting a law in the case of statutory interpretation, and therefore reach an objective result. Appointing judges who do not “legislate from the bench” and apply a neutral, may be a good idea in theory. In practice, however, Originalism often does not produce objective results.
Ironically, in some cases, the Originalists seemingly insert their own policy preferences. In fact, in reviewing the current state of the Court, it appears most closely decided cases are decided based upon political preferences, rather than an objective judicial philosophy. [7]. The same Justices who claim to be seeking objective results appear to in fact be expressing their own opinions about a wide range of issues such as gun control, abortion, gay marriage, free speech, and voting rights.
Notably, just as seeking to find the original meaning of art is a predominant view in the art history field, Originalism is likely to be a mainstay on the Supreme Court for decades. In fact, due to the current conservative-leaning makeup of the Supreme Court and federal judiciary, and strong potential of additional vacancies under the current President, particularly given liberal Justice Ruth Bader Ginsburg’s bout with cancer on her pancreas, conservative Justices professing to be Originalists will almost certainly be in the majority on the United States Supreme Court for decades to come. [8].
John Locke & Originalism
How might the philosophers who inspired both the Framers of the Constitution and art historians of the Enlightenment era think of Originalism and art history in context as objective tools of interpretation? The Framers were inspired by works of Enlightenment philosophers, including John Locke’s understanding of the separation of powers and checks and balances. [9]. In fact, in a recent Supreme Court dissent, in the case Gundy v. United States, 588 U.S. __, __ (2019), Justice Neil Gorsuch, an Originalist, joined by Chief Justice Roberts and Justice Thomas, cited to John Locke, as “one of the thinkers who most influenced the framers’ understanding of the separation of powers.” However, we do not believe the Originalist jurists are fully faithful to Locke’s overall views.
Would Locke support the proposition that looking to the original intent of the Framers or the original understanding at the time of the Framers would create an objective standard free from the experiences and political biases of individual judges? We think not. For Locke, “all our ideas take their beginnings from those two sources — external material things as objects of sensation and the operations of our own minds as objects of reflection.” [10]. Locke believed that judgement depends on altering the appearances of impressions and modifying apprehended ideas. [11]. Rooted in Locke’s understanding of judgement and sensibility may also be a suggestion that an objective, Originalist view of the Constitution is not always possible. Just as Winckelmann seemingly understood that art is perceived through the lens of the individual viewing the art, it would appear that Locke understood the impact of the perceiver’s experiences. Later, we will discuss how the Framers themselves could not have foreseen the development of the role of the Court centuries later.
I. Originalism in the Legal Context:
Next, we analyze the role of Originalism in the legal context. Specifically, we argue that a search for original intent will often not lead to an objective result. First, we will discuss how individuals on both sides of an issue can use an Originalist analysis to reach conflicting results, using the example of the Second Amendment. Second, we will review how in many areas of the law, those professing Originalism appear to be inconsistent in their approaches to reading the scope of the Constitution, and Justices instead may be influenced by underlying ideologies. Third, we will discuss how the Constitution and role of judges has changed over time and the Framers likely could not have foreseen how the role of the judges would evolve or how the text would be interpreted years later.
A. Originalism Can Be Used to Support Conflicting Results
Originalist analysis can support conflicting positions. One example of this phenomenon is Second Amendment caselaw, in which both supporters and opponents of an expansive Second Amendment right to bear arms used original meaning to support their conflicting positions. Where, as here, there are multiple plausible readings of original intent, and thus no definitive answer, that leaves a void for Justices’ own biases or preference to play a role in determining the outcome.
The Constitution’s Second Amendment provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Notably, until recently, the Second Amendment was interpreted rather narrowly. In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court reviewed the constitutionality of the National Firearms Act, which prohibited the transport in interstate commerce of certain firearms other than pistols or revolvers with barrels of less than eighteen inches of length capable of being concealed. The Supreme Court determined that the National Firearms Act was not unconstitutional in the absence of evidence showing that the possession of such a firearm “has some reasonable relationship to the preservation or efficiency of a well regulated militia.”
Moreover, the Court concluded that the Second Amendment should be viewed as an attempt by the Framers to “assure the continuation and render possible the effectiveness of such [militia] forces.” The Court noted that at the time the Second Amendment was adopted, “[t]he sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia — civilians primarily, soldiers on occasion.” In discussing the historical context of militia, the Court noted “that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
In the landmark decision District of Columbia v. Heller, 554 U.S. 570 (2008), a five-Justice majority read the Second Amendment more expansively, concluding that the Second Amendment protects more than the right to “possess and carry a firearm,” and in fact “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Justice Antonin Scalia, writing for the majority, found that the prefatory clause regarding the well-regulated militia, while providing a purpose “for which the right was codified: to prevent elimination of the militia,” did not “suggest that preserving the militia was the only reason Americans valued the ancient right [to bear arms]; most undoubtedly [Americans] thought it even more important for self-defense and hunting.” Despite the fact that the Second Amendment did not explicitly extend to the right to self-defense, Justice Scalia cited the Pennsylvania’s and Vermont’s state constitutions, adopted around the time of the ratification of the Second Amendment, which provided that the right to bear arms extended both to defense of those States and of themselves.
In Heller, the majority attempted to argue that its decision was not inconsistent with Miller. Specifically, Justice Scalia wrote that Miller did not limit the right to bear arms based on whether the firearms were used for military or non-military purposes, rather the distinction was made based on whether the type of weapon issued was eligible for Second Amendment protection. The majority cited Miller for the proposition that the “sorts of weapons protected were those ‘in common use at that time,’” and concluded that the District of Columbia’s total handgun ban was unconstitutional because the handgun was “the most popular weapon chosen by Americans for self-defense in the home.”
In dissent, Justice John Paul Stevens, joined by three liberal colleagues, concluded that the Second Amendment was adopted to “to protect the right of people of each of the several States to maintain a well-regulated militia,” and was not meant to protect the right of individuals to use firearms for non-military purposes such as hunting and self-defense. Justice Stevens wrote that the Court’s decision in Miller, subsequently relied upon by hundreds of judges, interpreted the Second Amendment as aimed at protecting the right to keep and bear arms for military purposes, and not as curtailing the right of legislators to regulate the non-military use or ownership of weapons. Justice Stevens attacked the majority’s opinion, stating that the majority failed “to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text.” In other words, to the dissent, the original meaning of the Second Amendment’s text, supported a much narrower reading than the majority’s interpretation.
Justice Stevens reviewed various proposals regarding the right to bear arms that had been advanced at the time the Second Amendment was ratified, and concluded that the Second Amendment was modeled based on “the distinctly military Virginia proposal,” and did not adopt other proposed formulas that “protected civilian use of firearms.” Moreover, Justice Stevens found further support in an early draft’s inclusion for an exemption for conscientious objectors that allowed them to avoid bearing arms as part of the militia for religious reasons, for the proposition that the Second Amendment was meant to protect only military use of weapons.
Writing separately in dissent, Justice Stephen Breyer concluded that the Second Amendment protected militia-related, and not self-defense-related, interests. According to Justice Breyer, at the time Second Amendment was adopted, Boston, Philadelphia, and New York, the three largest cities during the period, all restricted firearm usage to some degree. These laws, among other colonial firearms regulations, did not expressly provide for self-defense exceptions.
Two issues undetermined by the Supreme Court are whether States can limit citizens’ right to carry concealed weapons in public, or can restrict semiautomatic weapons. Justices Neil Gorsuch and Kavanaugh, the most recent appointments, already suggested that they will find many, if not most, gun control laws to be unconstitutional. In his confirmation hearings, Justice Gorsuch stated that the standard in determining whether gun restriction laws are permissible is whether the weapon is in “common use for self-defense,” which is a standard that is echoed by opponents of gun control. [12]. Under this standard, States would be unable to restrict the sale of even military style weapons, once they have been produced in sufficient numbers, regardless of public safety concerns or how dangerous such weapons. Justice Gorsuch also joined Justice Clarence Thomas in dissenting from the Court’s decision not to hear a challenge to California’s restriction on carrying concealed guns in public, strongly suggesting Justice Gorsuch believes such a law is unconstitutional. [13]. When he was a member of the District of Columbia Court of Appeals, Justice Kavanaugh would have struck down the District of Columbia’s ban on semi-automatic weapons, concluding such weapons were in “common use.” [14].
In the absence of a definitive objective answer, it appears that the Justices’ own biases play a role in shaping their view of the extent of the Second Amendment. For example, Justice Scalia was an avid hunter. [15]. Justice Elena Kagan had never owned or fired a gun before she was nominated to the Supreme Court. [16]. Under constant questions about her views on the Second Amendment, and opposition from the National Rifle Association to her confirmation, Justice Kagan promised that she would go hunting with Justice Scalia, apparently to assuage Republican Senators. [17]. Despite going on the hunting trips, Justice Kagan has a narrow view of the Second Amendment, as demonstrated by her joining the dissent in McDonald v. City of Chicago, 561 U.S. 742 (2010). This is as one might expect from a Democratic nominee who did not grow up owning a gun.
While the case is discussed more fully later, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), is another example of a case where Originalism does not necessarily result in an objective determination. In fact, the liberals, normally associated with the “Living Constitution,” may have had the better Originalist argument. In Citizens United, the Court held that limitations on corporate independent expenditures violated the corporation’s free speech rights. The dissent cited evidence that the Framers would not have wanted corporations to have the same rights as natural persons, including the Framers’ concern about corruption and the fact that corporations were viewed with disfavor by some of the Framers. Moreover, the dissent looked to the writings of the philosophers who inspired the Framers, including Locke, for the idea that free speech rights were reserved for individuals. The majority opinion responded that there is “no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations,” even if the Framers “may not have anticipated modern business and media corporations.” The majority, however, did not provide any further support regarding the views of the Framers.
In sum, the Supreme Court Justices’ dueling views of the original intent of the Second Amendment did not lead to an objective result. Rather, both sides could find historical evidence to support their conflicting views of the Constitution, which were apparently based on their own backgrounds and political preferences. Conservatives tend to take an expansive view of the Second Amendment, limiting the federal and state governments’ abilities to regulate gun ownership, no matter the potential harm that can occur from use of dangerous weapons. On the other hand, liberals, who also have historical support for their position, would permit restrictions on civilian use of guns should policy makers choose to pass gun control laws. Similar arguments regarding the inability to find an objective result using Originalism can be made regarding other areas of the law, including First Amendment restrictions on campaign finance laws. In thinking with Winkelmann, a judge’s subjective perception plays an important role in understanding his or her interpretation, particularly where there is no one definitive answer to original meaning or intent.
B. Seemingly Ideological Results
In this section, we focus on how proponents of Originalism on the Supreme Court have inconsistently interpreted different provisions of the Constitution, in terms of scope and weight, often reverting to what appears to be personal preference. This means reading certain Constitutional provisions narrowly, and others more expansively, as well as differing approaches to statutory interpretation, seemingly based on the outcomes.
LGBTQ Rights
First, we will look at civil liberties and rights in the in the context of LGBTQ Rights. The Fourteenth Amendment, ratified in 1868, includes the “Due Process” and “Equal Protection” Clauses, which says that no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdictions the equal protection of the laws.” These provisions have generally been used by proponents of women’s rights, LGBTQ rights, and minority rights to expand civil rights and liberties for various groups who have been discriminated against. When it comes to civil rights and liberties, Originalists offer a narrow view of the Fourteenth Amendment. Good examples of this narrow view are the Originalist Justices’ opinions and dissents in cases involving discrimination against the LGBT community.
In Bowers v. Hardwick, 478 U.S. 186 (1986), a 1986 decision, the United States Supreme Court considered the constitutionality of a Georgia statute criminalizing sodomy. The respondent in this matter had been charged with a criminal offense after engaging in a consensual sexual act with a same-sex partner in the privacy of his own home. Justice Byron White, writing for a five Justice majority, concluded that there was no “fundamental right to homosexuals to engage in acts of consensual sodomy” in the Constitution. Justice White claimed that anti-sodomy laws had “ancient roots,” sodomy was “a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights,” and that upon ratification of the Fourteen Amendment, “all but 5 of the 36 States in the Union had criminal sodomy laws.”
The Supreme Court subsequently reversed Bowersin 2003, in Lawrence v. Texas, 539 U.S. 558, 562 (2003), a case in which two men were again criminally prosecuted for engaging in consensual sexual acts. Writing for the six Justices in the majority, Justice Anthony Kennedy wrote that “[l]iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
In a dissent, Justice Scalia noted his disagreement with the gay rights movement. He wrote that Lawrence was “the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Justice Scalia’s terminology indicates that he let his personal ideas influence his Constitutional interpretation.
Recently, in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), a five-to-four decision, the Supreme Court determined that same-sex couples have a fundamental constitutional right to marry protected by both the Due Process Clause and Equal Protection Clauses of the Fourteen Amendment. In dissent, Chief Justice John Roberts asserted that “marriage” historically referred only to a union between one man and one woman, and that marriage “arose” as a way of “ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.” The Chief Justice also expressed concern that “people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage — when, for example, a religious college provides a married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.”
In a separate dissent, Justice Antonin Scalia approached the issue of same-sex marriage, applying prototypical “Originalist” analysis, by looking to the public meaning at the time of ratification. Justice Scalia noted, “[w]hen the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” According to Justice Scalia, “it is unquestionable that” those who ratified the Fourteenth Amendment did not understand it to prohibit laws limiting marriage to opposite-sex couples.
In sum, to the Originalist Justices, Fourteenth Amendment protections do not extend to protect LGBTQ Americans from criminal sanction for engaging in consensual same-sex intimate acts, or to protect their right to marry. The various opinions of Originalist Justices often cited to the anti-gay views of Americans at the time the Fourteenth Amendment was ratified. Or, as in the case of Justice Scalia’s dissent in Lawrence, some Justices did not even attempt to hide their subjective moral opposition to LGBTQ rights.
First Amendment
While it appears that the Originalists have limited the meaning of certain Constitutional provisions, such as the Fourteenth Amendment, they have a particularly expansive view of the free speech, free exercise of religion, and right to bear arms provisions found in the First and Second Amendments. The Originalists’ interpretations of these provisions demonstrate an inconsistency with their narrow interpretation of the Fourteenth Amendment.
The First Amendment provides free speech rights, protections for free exercise of religion, as well as a prohibition against the government establishing a religion. With regard to the First Amendment’s Free Speech Clause, Originalists on the Supreme Court have shown a propensity to view the text broadly, and to side with corporate interests against campaign finance restrictions and protections for unions.
The Constitution’s First Amendment states that “Congress shall make no law . . . abridging the freedom of speech . . . .” For decades, the Court had permitted campaign finance restrictions due to the threat that corporate and large donors could corrupt the political process. In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court addressed the constitutionality of financial contribution to political candidates, against First Amendment challenges. The Court in Buckley held that “the weighty interests served by restricting the size of contributions to political candidates” were sufficient “to justify the limited effect upon First Amendment freedoms” caused by such limitations, given the potential for corrupting influence by large donors.
In Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990), the Court held that a Michigan state campaign finance law that prohibited corporations from using money from the corporate treasury to make independent expenditures in support of or in opposition to political candidates, was constitutional, noting that “Corporate wealth can unfairly influence elections when . . . deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.” In McConnell v. FEC, 540 U.S. 93 (2003), the Supreme Court addressed the constitutionality of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), upholding BRCA’s requirement that electioneering communications be included in the disclosure requirements because such disclosure “bears a sufficient relationship to the important government interest of ‘shed[ding] the light of publicity’ on campaign financing,” and was thus constitutional.
In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Court overturned Austin and McConnell, striking down core provisions of BCRA, amid a challenge by a group aiming to promote an anti-Hillary Clinton movie within thirty days of a presidential primary. Justice Anthony Kennedy, writing for a five-Justice majority, wrote that the First Amendment’s protections extend to corporations in the context of political speech. The Court held BCRA’s restrictions on corporate independent expenditures — a ban on electioneering communications within thirty days of a primary election and sixty days of a general election — to be an unconstitutional restriction on free speech.
Writing for the four dissenting Justices, Justice Stevens wrote that the difference between a corporation and a human speaker is significant — corporations cannot vote or run for office, and their interests may conflict with the interests of eligible voters. Moreover, “[t]he financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures to guard against potentially deleterious effects of corporate spending” in national and local elections. Justice Stevens noted that Congress had long placed significant limitations on campaign spending by corporations dating back to 1907.
According to Justice Stevens, at the time the First Amendment was adopted, corporations were conceptualized as quasi-public entities (albeit few corporate entities existed). He noted that corporations were closely scrutinized so as to meet the needs of the public welfare, and Framer Thomas Jefferson “famously fretted that corporations would subvert the Republic.” Justice Stevens continued, “The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare,” and unlike the majority, the Framers “had little trouble distinguishing corporations from human beings, and when they [adopted] the First Amendment, it was free speech of individual Americans that they had in mind.”
Justice Clarence Thomas, writing separately, would have held BCRA’s disclosure requirements to be an unconstitutional restriction on free speech. Notably, in May 2017, newly appointed Justice Neil Gorsuch joined Justice Thomas in seeking to hear a case that would remove campaign contribution limits to political parties, suggesting that Justice Gorsuch takes a similar approach to Justice Thomas on campaign finance issues — namely, unlimited power of the wealthy and corporations to spend on elections. [18]. Justice Brett Kavanaugh has suggested he finds any campaign finance restrictions to be Constitutionally problematic. [19].
The Originalist Justices’ expansive view of First Amendment rights extends beyond campaign finance laws, to the area of collective bargaining and unions. In recent years, Republicans have increasingly supported and passed so-called “right to work,” legislation, that permits workers to opt-out of union dues. [20]. Many believe these laws have weakened labor unions, which has in turn hurt Democrats, who often benefited from union support. [21]. The Supreme Court in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), held that a requirement that public sector employees pay a union fee toward collective bargaining passed constitutional muster, although an employee could prevent a union from spending a part of the required fee on ideological activity outside of the collective bargaining process.
In Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), in a 5–4 decision, the conservative-leaning Justices on the Supreme Court overruled Abood, holding that the union fee requirements violated the employees’ First Amendment rights. Writing in dissent, Justice Elena Kagan accused the majority of ignoring the principle or stare decisis, or precedent, and “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Justice Kagan continued, that the majority was choosing “the winning side” despite twenty-two States having mandatory union dues, and in doing so “has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.” She warned that “almost all economic and regulatory policy affects or touches speech” including in the employment, health care, and securities trading spheres, and that if the conservative Justices continued on that path, “at every stop are black-robed rulers overriding citizens’ choices.” To Justice Kagan, the First Amendment was “meant for better things” than to be used “to undermine . . . democratic governance.”
These First Amendment rulings suggest that those professing to be Originalists are not completely objective, and these Justices seemingly let their own biases impact their interpretation of the Constitution to seek results they personally agree with. Importantly, taken to an extreme, this expansive view of the First Amendment’s free speech protections together with a broad view of the First Amendment’s free exercise protections, may allow individuals to discriminate against LGBTQ individuals, as well as potentially other minorities.
The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In Employment Division v. Smith, 494 U.S. 872 (1990), Justice Scalia, writing for the majority in a 6–3 decision, held a State may prohibit peyote use and deny unemployment benefits to persons discharged for such use, despite such use being a part of religious practice, because neutral laws of general applicability do not violate the First Amendment’s Free Exercise Clause. Recently, in a denial of certification, Justices Alito, Thomas, Gorsuch, and Kavanaugh suggested that they believe Smith“drastically cut back on the protection provided by the Free Exercise Clause” and should be reconsidered. [22].
According to conservative-leaning Constitutional scholar Eugene Volokh, a Professor at UCLA School of Law, the more expansive view of the Free Exercise Clause had historically been supported by liberals and opposed by conservatives. [23]. Volokh noted that in recent years, an expansive view of free exercise protections has become “more broadly endorsed by conservatives, and criticized by liberals.” [24]. To Volokh, this could lead to a situation in which the Supreme Court will choose the winning side in cultural wars regarding virtually any law, not just “marriage, or free speech, or sexual autonomy,” but also “health insurance laws, employment laws, public accommodation laws, and much more.” [25].
In Masterpiece Cakeshop, LTD, v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), the Supreme Court ruled in favor of a baker who challenged a Colorado Civil Rights Commission (“Commission”) charge that he violated Colorado’s anti-discrimination law by refusing to create a wedding cake for a same-sex wedding due to his religious opposition. The majority found that the Commission’s consideration was not religiously neutral, and thus, violated the baker’s First Amendment Free Exercise Clause rights.
Taking this principle further, as Volokh noted, if the Supreme Court continues in the current direction, it is likely that an individual could use his or her religion as a shield to anti-discrimination laws, such as health insurance coverage for women or LGBTQ, protections for openly gay employees, or laws prohibiting landlords from refusing to let to LGBTQ or other minorities. In other words, the First Amendment would be viewed so expansively so as to permit individuals the right to discriminate, so long as those individuals claim that discrimination is based on a sincerely held religious belief.
In other words, the Originalists’ expansive view of the First Amendment’s Free Speech and Free Exercise Clauses, is in stark contrast to their narrow approach to the Fourteenth Amendment. While the Originalists’ narrow view of the Fourteenth Amendment could limit judicial protections for those groups targeted for discrimination, the expansive view of the Free Speech and Free Exercise Clauses would result in increased corporate power, and likely limit the ability of legislatures to protect LGBTQ Americans (and possibly other minorities) due to purported sincerely held religious beliefs.
Second Amendment
This brings us to another area where Originalists view one Amendment much more expansively than others: the Second Amendment. Previously, we addressed how both the majority and dissent in Heller used the Originalist approach to reach contradictory results in interpreting the Second Amendment. Now, we address how expansively the Originalists may push the Court to interpret the Second Amendment. As we noted previously, two unanswered questions are whether one has the right to a gun outside the home, and whether an individual has a Second Amendment right to a semi-automatic weapon. Regarding semi-automatic weapons, the Originalist camp suggests that they find any bar on a class of weapons that has achieved “common use” (widespread distribution among civilians) to be unconstitutional, regardless of how dangerous that class of weapons is, or whether such weapons were in use or foreseeable at the time of the Framers.
The AR-15 has been the weapon of choice for many of the deadliest mass shootings in recent American history. [26]. The AR-15 was originally created for the military in the 1950s, and was rarely purchased by the American public until 1989, when a school shooter in California used the weapon. [27]. The AR-15 is much more lethal than a handgun, and was banned in the United States from 1994 to 2004. [28]. Since the ban expired, the AR-15 has become increasingly popular in the United States. [29].
If the Supreme Court decides that any ban on the AR-15 is unconstitutional because the weapon has reached “common use” status, regardless of the danger posed to the American public, the Originalists would be deciding that the Framers intended to protect a class of weapons not in use until approximately 200 years after the creation of the Second Amendment. This is in stark contrast to the Originalist’s approach to Equal Protection Clause treatment of LGBTQ Americans, in which the Originalists found that same-sex couples were not entitled to protection under the Equal Protection Clause because they did not think the Framers in the 1860s envisioned such protections, despite the subsequent evolution in society. In other words, the Originalists would consider evolution of technology and society in the Second Amendment cases in order to expand gun rights, but would ignore similar changes in determining whether to protect minorities under the Fourteenth Amendment.
Interestingly, shooters used semi-automatic weapons to murder twenty-six at a church in Texas in November 2017, and eleven at a synagogue in Pittsburgh, Pennsylvania, in October 2018, among other such incidents at religious institutions. [30]. In rejecting stricter gun control laws, President Trump suggested that the Pittsburgh shooting may not have happened if the synagogue had armed security officers, despite the fact that it took Pittsburgh police twenty minutes to end the shooting and four armed officers were injured in the process. [31]. One wonders how Originalists would respond to the argument that prohibiting States from regulating these weapons places a substantial burden on the First Amendment guarantee of free exercise of all religions, while at the same time holding that discrimination against LGBTQ-Americans can be deemed acceptable as free exercise of religion.
Voting Rights
While the focus of this part of the paper is mainly Constitutional interpretation, Originalists have also taken conflicting approaches to statutory interpretation, including interpretation of the very same statute: the Voting Rights Act. The Voting Rights Act is meant to protect voting rights of minority voters, whose voting rights have historically been discriminated against. However, the Originalists have recently struck down provisions of the Voting Rights Act that restricted voter discrimination, while reading the statute’s enforcement powers broadly in an instance where the Trump Administration was attempting to limit the voting power of minorities.
In Shelby County v. Holder, 570 U.S. 529 (2013), the Supreme Court struck down Section 5 of the Voting Rights Act of 1965, which had required that covered jurisdictions receive “preclearance,” or federal approval from the United States Department of Justice prior to implementing changes in those jurisdictions’ election laws in order to combat discrimination against minorities’ right to vote. The covered jurisdictions composed states that had a voting test in the 1960s or 1970s, and less than fifty percent voter registration or turnout. In 2006, the Voting Rights Act had been reauthorized for an additional twenty-five years by a Republican Congress and Republican President. [32].
Justice Ruth Bader Ginsburg, writing on behalf of four dissenting Justices, began her dissent by noting that in the majority’s view, “the very success of [Section 5] of the Voting Rights Act demands its dormancy. Congress was of another mind.” According to Justice Ginsburg, Section 5 remained a necessity. The Department of Justice continued to decline some proposed changes to voting laws arguing the changes would erect a barrier to minority voting. Justice Ginsburg asserted that Congress had compiled a voluminous record to support its reauthorization, including widespread intentional discrimination that persisted in covered jurisdictions since the previous reauthorization, as well as continued efforts to discriminate against minorities voting rights. To Justice Ginsburg, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
In a recent case, at oral argument, in Department of Commerce v. New York, 588 U.S. __, __ (2019), the Originalists appeared willing to uphold the addition of a citizenship question on the 2020 Census, which is used to allocate federal funding, as well as the number of congressional districts and Electoral College votes to the States. [33]. The Trump Administration argued that the question was necessary to enforce the Voting Rights Act. [34]. After oral argument, but before the decision was released, it came to light that a deceased Republican strategist who was an architect behind many gerrymanders favoring Republicans, urged the Trump Administration to add the citizenship question because he concluded, after conducting a study, that the question would result in underreporting of Democratic-leaning Hispanics and thus “would be advantageous to Republicans and non-Hispanic whites.” [35]. Ultimately, the decision to include the citizenship question was only rejected in Department of Commerce, because Chief Justice Roberts joined four liberals in determining that Trump Administration’s reasoning was pretextual, over the dissent of the four other conservative Justices. Thus, the Voting Rights Act, which was passed to protect the voting rights of minorities, was interpreted by at least four Originalists in a way that suppresses minority voting rights.
The Originalists have also upheld various voting restrictions that critics say are aimed at suppressing minority groups. [36]. In fact, in multiple States, including Wisconsin, Pennsylvania, North Carolina, and Florida, Republicans have admitted that their voter identification laws were aimed at suppressing Democratic-leaning voters. [37]. Nevertheless, in a 5–4 decision, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018),the conservative-leaning Justices on the Supreme Court upheld an Ohio voter purging law. In her dissent, Justice Sotomayor argued that the Ohio law violated the National Voter Registration Act of 1993 (“NVRA”), particularly in light of the fact that NVRA was adopted against the backdrop of voter suppression targeting low-income and minority voters. Finally, in Rucho v. Common Cause, 588 U.S. __, __ (2019), the five conservative Justices ruled partisan gerrymanders to be nonjusticiable, no matter how extreme.
In sum, despite Originalists professing to be objective, it appears that one’s personal views and experiences inevitably shapes legal interpretation, including review of Congressional legislation. Not only can Originalism lead to conflicting results, such as with the Second Amendment, but Originalists often approach various provisions of the Constitution differently. Originalists tend to view certain Constitutional provisions narrowly (i.e., Fourteenth Amendment), and other provisions more expansively (i.e., Second Amendment, and some parts of the First Amendment), seemingly based on the outcome of the cases. Even in the context of interpreting election laws, Originalists have an inconsistent approach that is seemingly based on the Republican Party’s preferred position, then on an objective approach to legal interpretation.
C. Constitution Performs Differently Over Time
Next, we argue that Constitutional provisions perform differently over time and that the Framers could not have foreseen the evolution of American society and the law. Moreover, we believe the Framers would not have supported how powerful the Judiciary has become.
The Framers viewed the Judiciary as the least powerful branch of the government, less powerful than Congress and the President. Specifically, in the Federal Paper No. 78, Framer Alexander Hamilton argued that the Judiciary would be the “least dangerous branch to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them,” as it has neither purse nor sword. [38]. In fact, Hamilton quoted Enlightenment philosopher, Baron de Montesquieu for the proposition that of the three branches of government, “‘the judiciary is next to nothing.’” [39]. To Hamilton, federal judges needed lifetime tenure, in “good behavior,” so as to serve as a “barrier to the encroachments and oppressions of the representative body, and to secure “impartial administration of the laws.” [40].
But as we have seen, the Supreme Court has become increasingly political, wading into some of the most divisive social and political issues. And, in doing so, has arguably become the most dangerous branch, not the least. [41]. The political nature of the Supreme Court was exacerbated by the Republican Senate’s refusal to even holding a hearing for President Obama’s nominee for a Supreme Court vacancy created in February 2016. Article II, Section 2, of the United States Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.”
After Supreme Court Justice Antonin Scalia died in February 2016, President Barack Obama nominated Merrick Garland, a moderate jurist who served as chief judge on the United States Court of Appeals for the District of Columbia, and had previously been praised by influential Republican Senators. [42]. Senate Majority Leader Mitch McConnell and Senate Republicans refused to even hold a hearing, arguing that the American people should decide who would fill the vacancy. [43]. Ultimately, President Donald Trump was able to fill the February vacancy occurring during President Obama’s presidency. [44].
Moreover, while the Framers may have foreseen political parties, it is unlikely they foresaw such politicization of the confirmation process and involvement of outside groups. Not only did the Framers believe the Judiciary was the least dangerous branch, and should remain independent, but they also believed that the structure of the government would best prevent or mitigate the danger of factions. In the Federalist Papers, James Madison stated that factions, which he defined as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community,” were a threat to liberty. [45].
The politicization of the judiciary is not only seen with hardball played by factions in terms of political parties, but also from factions in terms of the influence of and spending by outside groups. For example, sensing the importance of the Supreme Court vacancy caused by the February 2016 death of Justice Scalia, the National Rifle Association, which opposes efforts to enact gun control laws, spent millions opposing Merrick Garland. [46]. Further, the powerful Federalist Society, an organization of conservative attorneys, have aided Trump in picking young, conservative jurists, of an Originalist perspective. [47]. The less powerful and less established liberal-leaning Demand Justice, is trying to influence future Democratic administrations by calling on Democrats to not appoint former partners at law firms from judicial appointments. [48]. These referenced groups are just some of the many interest groups involved in influencing the Judiciary. In other words, the Judiciary is being influenced by factions in support of an agenda. Framers likely did not foresee how powerful the judiciary would come and the danger its decisions could pose to the balance of powers between the branches of government.
Moreover, the Framers could not have predicted how society would evolve hundreds of years into the future. As Justice Ginsburg remarked in 1988, prior to her Supreme Court appointment, when the Constitution was created, in 1787, non-landowners, women, and slaves did not have political rights. [49]. To Justice Ginsburg, strict focus on original intent “seems . . . unworkable, and not what Madison or Hamilton would espouse were they with us today,” as the Framers “never dreamed” of women of having the rights they have today, for example. [50].
Originalism is premised upon the idea that one can objectively determine what individuals over 200 years ago felt about problems that they could not have foreseen. Yet, as we can derive from the conflicting opinions discussed previously, we do not know whether the Framers believed free speech rights extend to corporations, particularly in light of their concern about the dangers of corporations and factions. We also do not know for certain whether the Framers would have viewed the Second Amendment rights as extending to civilians, much less to ownership of weapons that are many times as powerful and deadly as those available when the Constitution was formed. Thinking along the lines of Winkelmann, these are just some examples that demonstrate judges, as perceivers, shape text in a matter consistent with their own subjective understandings. Thus, those who are alive now, are shaped by their own experiences and the evolution of society, and cannot always determine definitively what the Framers had in mind.
As individuals cannot know definitively what the Framers meant, it appears that the Justices instead are impacted by their experiences and biases. There are differences in reading the Constitution’s text, but perhaps the difference is not based on original meaning versus the “Living Constitution.” Instead, the text lives differently in each of us, based on our own experiences and biases. Our own experiences in a society that has greatly changed since 1787 appears to be vital in analyzing judicial decisions.
D. Summary
In sum, Originalists assert that one can only objectively interpret the Constitution by looking to the original meaning of the Constitution’s text. We believe that such an approach does not necessarily yield an objective approach. Even those professing to search for the original meaning are shaped by their own experiences and biases. First, as we addressed in the context of the Second Amendment, opposing sides can use sources from the time of the Framers to support their dueling views. Second, Justices, even those who profess to be Originalists, interpret some parts of the Constitution more broadly and others narrowly, seemingly based on ideology and not an objective measure. Finally, the Constitution’s text performs differently than it did to the Framers, as society was different. Moreover, the role of the Judiciary is likely not what the Framers imagined.
Citations:
[1] Winckelmann, Johann trans. by Henry Fusseli. Reflections on the Painting and Sculpture of the Greeks. London: A Millar, 1765.
[2] Davis, Whitney. “Winckelmann Divided: Mourning the Death of Art History.” Journal of Homosexuality27, no. 102 (2010): 141–60.
[3] Id.at 37.
[4] Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, Princeton University Press (1997), at 38.
[5] Id.at 38–39.
[6] See, e.g., Robert Post and Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, 50 Yale L. Rev. Pocket Part 38, 50 (2006).
[7] See, e.g., Id.; Originalism’s Misplaced Fidelity: “Original” Meaning Is Not Objective, 26 Const. Commentary. 1, 4, 28–35, 55–57(2009) (arguing against Originalism, asserting that Originalism is not an objective methodology).
[8] See, e.g., Nina Totenberg, “Justice Ruth Bader Ginsburg Treated Again For Cancer,” NPR, https://www.npr.org/2019/08/23/753699013/justice-ruth-bader-ginsburg-underwent-another-round-of-cancer-treatment-this-sum (Aug. 23, 2019).
[9] See, e.g., Jonathan Turley, Madisonian Tectonics: How Form Follows Function in Constitutional and Architectural Interpretation, 83 Geo. Wash. L. Rev. 305, 315–26 (2015) (discussing the impact of Enlightenment philosophers on Framers, such as James Madison); Saikrishna B. Prakash and Michael D. Ramey, Foreign Affairs and Jeffersonian Executive: A Defense, 89 Minn. L. Rev. 1591, 1630–38 (2005) (discussing the influence of philosophers such as Locke and Montesquieu on the Framers).
[10] Locke, Essay on Understanding, 19.
[11] Id.at 34.
[12] Adam Skaggs, Neil Gorsuch May Have Revealed Second Amendment Views with gun Lobby Phrase, Us News (Mar. 16, 2016), https://www.usnews.com/opinion/civil-wars/articles/2017-03-23/neil-gorsuch-may-have-revealed-second-amendment-views-with-gun-lobby-phrase (Mar. 23, 2017).
[13] David G. Savage,Supreme Court won’t hear a California gun case, leaving in place the state’s strict limits on concealed weapons, L.A. Times, http://www.latimes.com/politics/la-na-pol-court-handguns-california-20170626-story.html (June 26, 2017).
[14] Heller v. District of Columbia,670 F.3d 1244, 1287–88 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). Interestingly, the circuit court’s majority opinion upholding the ban was written by Judge Douglas Ginsburg, who was nominated by Ronald Reagan for the Supreme Court seat Justice Kavanaugh now sits in, before withdrawing over prior marijuana use. See, e.g., Pete Williams, Justice Kennedy to retire; Trump can cement court’s conservative majority, NBC News, https://www.nbcnews.com/politics/supreme-court/justice-kennedy-retire-trump-can-solidify-court-s-majority-conservative-n887066 (June 27, 2018).
[15] See, e.g.,Lyle Denniston, President’s tributes to Justice Scalia, Scotus Blog, https://www.scotusblog.com/2016/02/presidents-tribute-to-justice-scalia/l (Feb 14, 2016).
[16] Bill Mears, Kagan hunts with buddy Scalia, bags deer, CNN, https://www.cnn.com/2013/07/02/politics/kagan-deer-hunting/index.html(July 2, 2013).
[17] Ibid.
[18] Paul Blumenthal,Neil Gorsuch Shows His Hand on Money in Politics as Court Turns Down Big Case, Huffington Post, http://www.huffingtonpost.com/entry/neil-gorsuch-campaign-finance_us_59231990e4b034684b0e7c63 (May 22, 2017).
[19] Stephen Dinan, Kavanaugh believed campaign finance limits likely unconstitutional: Emails, Washington Times, https://www.washingtontimes.com/news/2018/sep/1/kavanaugh-campaign-finance-limits-likely-unconstit/ (Sept. 1, 2018).
[20] See, e.g., James Feigenbaum, Alexander Hertel-Fernandez, and Vanessa Williamson, Right-to-Work Laws Have Devastated Unions — and Democrats, NY Times, https://www.nytimes.com/2018/03/08/opinion/conor-lamb-unions-pennsylvania.html (Mar. 8, 2018); Dave Jamieson, Republicans Want to Pass a National Right-to-Work Law, Huffington Post, https://www.huffingtonpost.com/entry/republicans-pursue-national-right-to-work-law-while-they-hold-the-reins-in-washington_us_5891fb30e4b0522c7d3e354d(Feb. 22, 2017).
[21] Ibid.
[22] Joseph A. Kennedy v. Bremerton School District(Statement of J. Alito), available at https://www.supremecourt.gov/orders/courtorders/012219zor_8759.pdf(Jan. 22, 2019).
[23] Eugene Volkh, Will the Court Read the Free Exercise Clause as Often Mandating Religious Exemptions from Generally Applicable Laws?, Reason, http://reason.com/volokh/2019/01/22/will-the-court-read-the-free-exercise-cl(Jan. 22, 2019).
[24] Ibid.
[25] Ibid.
[26] See, e.g., Daniel Brown, The Pittsburgh synagogue shooter was reportedly armed with an AR-15 — here’s how it became the weapon of choice for America’s mass shooters, Business Insider, https://www.businessinsider.com/ar-15-semi-automatic-history-why-used-mass-shootings-2018-2(Oct. 27, 2018).
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30]See, e.g., Jack Date and J.J. Gallagher, Texas shooting suspect got assault weapon despite apparently domestic violence conviction, ABC Newshttps://abcnews.go.com/US/texas-church-shooting-suspect-assault-weapon-domestic-violence/story?id=50956032 (Nov. 6, 2017) (church shooting); Nick Allen and Rob Crilly, Pittsburgh synagogue shooting: Gunmen kills 11 people in ‘deadliest anti-Semitic attack in US,’Telegraph,https://www.telegraph.co.uk/news/2018/10/27/pittsburgh-synagogue-shooting-leaves-multiple-casualties/ (Oct. 28, 2018).
[31] Ibid.; Caroline Kelly, Ray Sanchez and Liz Stark, Trump says Pittsburgh synagogue should have had armed guards,CNN, https://www.cnn.com/2018/10/27/politics/trump-jba-death-penalty-pittsburgh/index.html (Oct. 28, 2018).
[32] See, e.g., Roll Call Vote 109th Congress — 2nd Session, H.R. 9, https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00212 (last visited May 23, 2017); Bush signs Voting Rights Act extension, Associated Press, http://www.nbcnews.com/id/14059113/ns/politics/t/bush-signs-voting-rights-act-extension/#.WST9BFKZOgQ (July 27, 2006).
[33] See, e.g., Jessica Levinson, The Supreme Court knows the citizenship census question is likely bogus. It doesn’t care, NBC News, https://www.nbcnews.com/think/opinion/supreme-court-knows-citizenship-census-question-likely-bogus-it-doesn-ncna1012546 (May 31, 2019); Michael Wines, How the Supreme Court’s Decision on the Census Could Alter American Politics, NY Times, https://www.nytimes.com/2019/04/23/us/noncitizens-census-political-maps.html (Apr. 23, 2019).
[34] Ibid.
[35]See, e.g., Michael Wines, Deceased G.O.P. Strategist’s Hard Drive Reveal New Details on the Census Citizenship Question, NY Times, https://www.nytimes.com/2019/05/30/us/census-citizenship-question-hofeller.html (May 30, 2019).
[36] See., e.g., German Lopez, Supreme Court’s conservative justices uphold Ohio’s voter purge system, VOX, https://www.vox.com/policy-and-politics/2018/6/11/17448742/ohio-voter-purge-supreme-court-ruling(June 11, 2018).
[37] Michael Wines, Some Republicans Acknowledge Leveraging Voter ID Laws for Political Gain, NY Times, https://www.nytimes.com/2016/09/17/us/some-republicans-acknowledge-leveraging-voter-id-laws-for-political-gain.html(Sept. 16, 2016).
[38] Alexander Hamilton, Federalist №78, Yale Law School, available at https://avalon.law.yale.edu/18th_century/fed78.asp(last visited Sept. 23, 2019).
[39] Ibid.
[40] Ibid.
[41] See generally, David A. Kaplan, The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution(2018) (arguing that the conservative Supreme Court has become too political).
[42] See, e.g., Ron Elving, “What Happened With Merrick Garland in 2016 and why it Matters Now,” NPR, https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now (June 29, 2018).
[43] Ibid.
[44] Ibid. Notably, a Republican Senate has not confirmed a Democratic President’s nominee since the turn of the Twentieth Century. Ibid. During that time Democratic Senates have confirmed a number of the Supreme Court nominees of Republican Presidents, including, most recently, Anthony Kennedy in 1988, an election year, and Clarence Thomas, in 1991. See, e.g., “Myths vs. Facts on Filling the Supreme Court Vacancy,” Alliance For Justice, https://www.afj.org/myths-vs-facts-on-scotus-vacancy (last visited Sept. 30, 2019). Notably, now that there is a Republican President and Senate, Senator McConnell has indicated that he would fill a vacancy created in 2020 and not leave it open for the American people to decide. See, e.g., Jordain Carney, “McConnell: GOP would ‘absolutely’ fill Supreme Court seat next year,” https://thehill.com/homenews/senate/459715-mcconnell-gop-would-absolutely-fill-supreme-court-seat-next-year(Sept. 3, 2019). Moreover, Republicans have filled four of the last six Supreme Court vacancies occurring since 2000, despite Democratic candidates winning the popular vote in all but one of the five presidential elections occurring during this period. See, e.g., Lawrence Weschler, “How the US Supreme Court Lost Its Legitimacy,” The Nation, https://www.thenation.com/article/how-the-us-supreme-court-lost-its-legitimacy (Sept. 17, 2018).
[45] James Madison, Federalist №10, Yale Law School, available at https://avalon.law.yale.edu/18th_century/fed10.asp (last visited Sept. 30, 2019).
[46] Nick Gass, NRA blasts Garland over Second Amendment, TIME http://www.politico.com/story/2016/03/merrick-garland-supreme-court-nra-guns-220892 (March 16, 2016).
[47] See, e.g., Lawrence Baum & Neal Devins, “Federalist Court: How the Federalist Society became the de facto selector of the Republican Supreme Court justices,” Slate, http://www.slate.com/articles/news_and_politics/jurisprudence/2017/01/how_the_federalist_society_became_the_de_facto_selector_of_republican_supreme.html (Jan. 31, 2017).
[48] Brian Fallon & Christopher Kang, “No More Corporate Lawyers on the Federal Bench: The next Democratic president should try nominating judges who haven’t been partners at big law firms,” Atlantic, https://www.theatlantic.com/ideas/archive/2019/08/no-more-corporate-judges/596383/(Aug. 19, 2019).
[49] Honorable Ruth Bader Ginsburg, “Remarks on Women Becoming Part of the Constitution,” 6 Law & Ineq.J. 17, 17 (1988).
[50] Ibid.