Thursday, October 8, 2020

Voting in a Time of Covid: A Question about Judicial “Originalism”

The originalist theory of legal interpretation holds that judges, in reviewing the implementation of a statute, should be guided by the “plain meaning” of its language at the time it was adopted.  This is in opposition to the notion of a “living law”, whose interpretation should evolve as the conditions it addresses evolves.  For instance, originalists are appalled by Supreme Court decisions like Roe v Wade, since nowhere does the Constitution establish a right to bodily privacy, nor could the framers have plausibly thought back in the eighteenth century that the language they drafted encompassed such a right.  It is one interpretation of the living law view, on the other hand, that, as governments increasing acquired the administrative power to regulate our intimate lives, the zone of restriction implicit in the first amendment should be extended to measures that impinge on the freedom to control one’s own body.

Until his death the most vocal supporter of originalism on the Court was Antonin Scalia; now we are looking at the nomination of Amy Coney Barrett, who describes herself as an acolyte of Scalia and a resolute defender of his philosophy.

Here is a case I would bring up if I were questioning Barrett.

The rules governing elections are established at the local and state levels, not federal, but the Supreme Court is the final arbiter of how they might be interpreted.  It is common for jurisdictions to have regulations prohibiting interference with or attempts to influence voters at voting sites.  In every instance I’ve seen this is expressed in terms of physical distance, something like “within 100 yards of the polling place”.  In enforcement this has always implied a radius extending from the door voters use to enter the building in which they will cast their vote.  You can’t hold signs and shout at voters, much less accost them, within so many feet of that door.

But voting has changed during the pandemic.  Social distancing has forced election officials to disperse voting booths, reducing the number of booths per site.  Lines also have to be distanced, and they now stretch out for many blocks, even the better part of a mile, from the door.  Because of this, voters waiting to cast their ballot are often beyond the specific distance specified in the law for prohibition of campaigning.

Should these prohibitions be interpreted according to their plain language, which unambiguously permits campaigning beyond a specified radial distance, or should they be understood more flexibly in terms of the changed circumstances of voting in a pandemic?

There is an easy way out, but on a little reflection it is obvious it doesn’t work.  That is, an originalist could say, “It’s clear that the purpose of the statute is to protect voters during the process of voting, which includes waiting to vote.  With the pandemic, that purpose can and should be served by overriding the numerical stipulation and extending prohibition to the entire voting line, no matter how long.”

Sounds good, but consider that (a) the authors of these laws could have used a qualitative description of the prohibited zone (“in close proximity to voting booths and lines”) but used a quantitative one instead, and (b) this is not the first pandemic; those in a position to write or amend these laws were familiar with the Spanish Influenza of 1918-19, where similar adaptations needed to be made.  Really, only one of two possibilities exist: either the laws should be taken at their word and judges, while they may lament how poorly they were written, can only enforce them literally, or it should be assumed that those drafting them expected that future generations would understand their purpose and apply them flexibly.  In the second possibility, the numerical demarcators were intended to convey a broader intent: you might say “within 100 yards” not to get out the tape measure but to express the idea that the immediate vicinity of the voting site should be differentiated from the community surrounding it.  That’s not a strange way of communicating intent.  Lots of rules parents set for children work that way.  “Be home by 11 pm” means you need to have a good reason to stay out later.  We could interpret voting regulations that way, but that puts us in living law-land.

So I’d ask Barrett about the enforcement of voting interference statutes during the pandemic and ask a follow up question when she tries, as she likely would, to give the easy-but-inadequate response about intent.


2slugbaits said...

Justice Antonin Scalia used to bristle at being called an "originalist." He called himself a "strict constructionist." Granted, he almost always came down on decisions in the same way as Justice Clarence Thomas (who does describe himself as an "originalist"), but Scalia very often arrived at the same destination via a different route. Scalia was pretty well aware of the dangers associated with trying to infer a single original intent because it risked turning a constitutional argument into a history debate. And of course there's the inconvenient fact that there was no single original view in 1787. Finally, the same originalist argument could be applied to some of the Congressional debates surrounding the 14th Amendment, which was something that Scalia would rather have avoided.

Peter Dorman said...

So true about the 14th amendment. The most interesting question for me about originalism is, how has it been utilized when the outcome would be bad for corporations/wealth/property? The same for any judicial philosophy propounded by conservatives.

Sandwichman said...

Folks have been playing Constitutional Calvinball for 230 years. It's the national pastime.

Fred C. Dobbs said...

'Corporations are people' is built on an incredible 19th-century lie

The Atlantic - March 5, 2018

How a farcical series of events in the 1880s
produced an enduring and controversial legal precedent

Somewhat counterintuitively, American corporations today enjoy many of the same rights as American citizens. Both, for instance, are entitled to the freedom of speech and the freedom of religion. How exactly did corporations come to be understood as “people” bestowed with the most fundamental constitutional rights? The answer can be found in a bizarre—even farcical—series of lawsuits more than 130 years ago involving a lawyer who lied to the Supreme Court, an ethically challenged justice, and one of the most powerful corporations of the day.

That corporation was the Southern Pacific Railroad, owned by the robber baron Leland Stanford. In 1881, after California lawmakers imposed a special tax on railroad property, Southern Pacific pushed back, making the bold argument that the law was an act of unconstitutional discrimination under the Fourteenth Amendment. Adopted after the Civil War to protect the rights of freed slaves, that amendment guarantees every “person” the “equal protection of the laws.” Stanford’s railroad argued that it was a person too, reasoning that just as the Constitution prohibited discrimination on the basis of racial identity, so did it bar discrimination against Southern Pacific on the basis of its corporate identity.

The head lawyer representing Southern Pacific was a man named Roscoe Conkling. A leader of the Republican Party for more than a decade, Conkling had even been nominated to the Supreme Court twice. He begged off both times, the second time after the Senate had confirmed him. (He remains the last person to turn down a Supreme Court seat after winning confirmation). More than most lawyers, Conkling was seen by the justices as a peer.

It was a trust Conkling would betray. As he spoke before the Court on Southern Pacific’s behalf, Conkling recounted an astonishing tale. In the 1860s, when he was a young congressman, Conkling had served on the drafting committee that was responsible for writing the Fourteenth Amendment. Then the last member of the committee still living, Conkling told the justices that the drafters had changed the wording of the amendment, replacing “citizens” with “persons” in order to cover corporations too. Laws referring to “persons,” he said, have “by long and constant acceptance … been held to embrace artificial persons as well as natural persons.” Conkling buttressed his account with a surprising piece of evidence: a musty old journal he claimed was a previously unpublished record of the deliberations of the drafting committee.

Years later, historians would discover that Conkling’s journal was real but his story was a fraud. The journal was in fact a record of the congressional committee’s deliberations, but, upon close examination, it offered no evidence that the drafters intended to protect corporations. It showed, in fact, that the language of the equal-protection clause was never changed from “citizen” to “person.” So far as anyone can tell, the rights of corporations were not raised in the public debates over the ratification of the Fourteenth Amendment or in any of the states’ ratifying conventions. And prior to Conkling’s appearance on behalf of Southern Pacific, no member of the drafting committee had ever suggested that corporations were covered. ...

Fred C. Dobbs said...

There’s reason to suspect that Conkling’s deception was uncovered back in his time too. The justices held onto the case for three years without ever issuing a decision, until Southern Pacific unexpectedly settled the case. Then, shortly after, another case from Southern Pacific reached the Supreme Court, raising the exact same legal question. The company had the same team of lawyers, with the exception of Conkling. Tellingly, Southern Pacific’s lawyers omitted any mention of Conkling’s drafting history or his journal. Had those lawyers believed Conkling, it would have been malpractice to leave out his story.

When the Court issued its decision on this second case, the justices expressly declined to decide if corporations were people. The dispute could be, and was, resolved on other grounds, prompting an angry rebuke from one justice, Stephen J. Field, who castigated his colleagues for failing to address “the important constitutional questions involved.” “At the present day, nearly all great enterprises are conducted by corporations,” he wrote, and they deserved to know if they had equal rights too. ...

So, with Field on the Court, still more twists were yet to come. The Supreme Court’s opinions are officially published in volumes edited by an administrator called the reporter of decisions. By tradition, the reporter writes up a summary of the Court’s opinion and includes it at the beginning of the opinion. The reporter in the 1880s was J. C. Bancroft Davis, whose wildly inaccurate summary of the Southern Pacific case said that the Court had ruled that “corporations are persons within … the Fourteenth Amendment.” Whether his summary was an error or something more nefarious—Davis had once been the president of the Newburgh and New York Railway company—will likely never be known.

Field nonetheless saw Davis’s erroneous summary as an opportunity. A few years later, in an opinion in an unrelated case, Field wrote that “corporations are persons within the meaning” of the Fourteenth Amendment. “It was so held in Santa Clara County v. Southern Pacific Railroad,” explained Field, who knew very well that the Court had done no such thing.

His gambit worked. In the following years, the case would be cited over and over by courts across the nation, including the Supreme Court, for deciding that corporations had rights under the Fourteenth Amendment.

Indeed, the faux precedent in the Southern Pacific case would go on to be used by a Supreme Court that in the early 20th century became famous for striking down numerous economic regulations, including federal child-labor laws, zoning laws, and wage-and-hour laws. Meanwhile, in cases like the notorious Plessy v. Ferguson (1896), those same justices refused to read the Constitution as protecting the rights of African Americans, the real intended beneficiaries of the Fourteenth Amendment. Between 1868, when the amendment was ratified, and 1912, the Supreme Court would rule on 28 cases involving the rights of African Americans and an astonishing 312 cases on the rights of corporations.

The day back in 1882 when the Supreme Court first heard Roscoe Conkling’s argument, the New-York Daily Tribune featured a story on the case with a headline that would turn out to be prophetic: “Civil Rights of Corporations.” Indeed, in a feat of deceitful legal alchemy, Southern Pacific and its wily legal team had, with the help of an audacious Supreme Court justice, set up the Fourteenth Amendment to be more of a bulwark for the rights of businesses than the rights of minorities.

Fred C. Dobbs said...

BTW, this peculiar attitude toward corporate rights
seems to have originated in contract law, due to
decisions by Justice Marshall in the earliest
days of the Court, one infamous case
involving Dartmouth College.

Fred C. Dobbs said...

How a clerical error made corporations “people”

... So where do we get today’s assumption that a corporation is fully entitled to the constitutional rights of the American people? It was a mistake!

The mistake came in the writing of a “headnote” to the U.S. Supreme Court’s 1886 decision in an obscure tax case called Santa Clara County v. Southern Pacific Railroad. (I’ll not burden you with any minutiae from this case, which involved, of all things, the county’s right to tax some of the railroad’s fence posts).

... the railroads pushed hard in this unheralded case to get the court to rule that corporations have equal taxation and other human rights under the Fourteenth Amendment. Chief Justice Morrison Waite, a failed Ohio politico and former railroad lawyer, seemed a likely bet to do the corporate bidding—but he did not. The court decided in favor of Southern Pacific on the mundane fence-post matter, but it specifically dodged the immense issue of personhood. It held no open court discussion about it, wrote no opinions mentioning it, and rendered no judgment on it.

But a court reporter, J.C. Bancroft Davis (a former railroad official), wrote the headnote to the decision—a headnote being a summary of the case, for which reporters like Davis received a commission from the publisher of these legal documents. Davis’s lead sentence declares: “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny any person within its jurisdiction the equal protection of the laws.

That’s it. A clerk’s personal opinion, carrying no weight of law and misinterpreting what the court said—this is the pillar on which rests today’s practically limitless assertions of corporate “rights.” Davis later asked Chief Justice Waite whether he was correct in saying that the court had ruled on corporate personhood, and Waite responded that “we avoided meeting the Constitutional questions.”

Corporate attorneys seized on the headnote, quoting it as the law of the land, and it was not long before politicians and judges themselves joined in the farce, either because they were eager to support the corporate cause or were simply too lazy to read the actual case. ...

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