roberts confirmation and senator arlen specter and judge john roberts and original intent and living constitution

So, Judge Roberts has, perhaps inadvertently, pressed a "hot button" issue merely by mentioning the word "intent." You can see how this is true if you read Senator Specter's response:

SPECTER: Well, when you talk about intent, I think that's a pretty tough interpretation. When the equal protection clause was passed by the Senate in 1868, the Senate galleries were segregated: blacks on one side, whites on the other. So that couldn't have been their intent.

[MY COMMENT: This is a pretty sophisticated response from the Chair. He rushes right to the 14th Amendment, which assures us of "equal protection of the laws." His point is that if the "original intent" of the drafters of this Amendment in 1868 was truly to provide this kind of equality, they wouldn't have supported separation of the races at that time or later (which, of course, happened after Reconstruction ended in 1876). He is implying, of course, that the modern meaning of this phrase, which only began to be "discovered" in the 1940s, to apply to equal access to all accommodations in our society regardless of race, was not an attempt to divine the original intent of the drafters but was an indication of how a subsequent generation could put new meaning into the phrase, a meaning that the drafters may not have even envisioned.]

SPECTER: And the interpretation which occurs later really is captured by Justice Cardozo in the case of Palko v. Connecticut, a case which impressed me enormously back in the law school days.

When talking about the constitutional evolution, he referred to it as expressing values which are, quote, "the very essence of a scheme of ordered liberty," close quote, quote, "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."

Would you agree with the Cardozo statement of jurisprudence which I just quoted?

ROBERTS: Well, the general approach of recognizing the values that inform the interpretation of the Constitution -- it applies to modern times. But, just to take the example that you gave of the equal protection clause, the framers chose broad terms, a broad applicability, and they state a broad principle.

[MY COMMENT: Specter has made his point about the 14th Amendment and then goes on to another "heavyweight" justice, Benjamin Cardozo. But Roberts doesn't want to leave the issue lying like this. He has provoked it by using the word "intent," and Specter has really dismisssed his approach by giving the example of segregated gallery seating in 1868. But Specter's comments are the ones really on Judge Roberts' mind.]

ROBERTS: And the fact that it may have been inconsistent with their practice may have meant that they were adopting a broad principle that was inconsistent with their practice, and their practices would have to change -- as they did -- with respect to segregation in the Senate galleries, with respect to segregation in other areas.

[MY COMMENT: Roberts is not granting Specter his point on originalism. In other words, he seems to be saying that the drafters of the 14th Amendment may have known that the words in the text were inconsistent with the way they lived but were trying, as it were, to put words out there that they would have to "grow into" either in their own lives or in the future generations. Thus, while Specter is trying to drag Roberts along to a "living constitution" view, which doesn't expect the drafters to have knowledge of or even commitment to values that we embrace 137 years later, Roberts will want to hold to the position that the people in 1868 may have anticipated the end of segregation. I don't know if he believes this. I think he is strongly influenced in this approach by McConnell's HLR article of about a decade ago about the historical background to the 14th Amendment. In any case, don't miss the nuances of the exchange. What is at stake is really not Cardozo, but original intent.]

ROBERTS: But when they adopt broad terms and broad principles, we should hold them to their word and imply them consistent with those terms and those principles.

And that means, when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle.

ROBERTS: I depart from some views of original intent in the sense that those folks, some people view it as meaning just the conditions at that time, just the particular problem. I think you need to look at the words they use, and if the words adopt a broader principle, it applies more broadly.

[MY COMMENT: Now you see that original intent really is on Roberts' mind. I read his words to say that he would call himself a sort of 'moderate' original intent person, where the drafters used words and phrases in a "broad" sense and, impliedly, when later generations found expanded meaning in the equal protection clause, the latter day interpreters were really 'discovering' meaning that was already there rather than 'inventing' meaning. Though he hasn't told us everything, Judge Roberts has signalled that he won't be a "hard right" originalist, though he likes to talk in the way they do. But, on the other hand, he seemingly has room for a living constitution or a "broad" view of what an amendment might mean. He is plotting out a middle course. Specter sees that he can really go no farther at this point, and puts his final "spin" on Roberts' words.]

SPECTER: Well, I'll accept that as an indication of your view not to have a, quote, "crabbed interpretation," in applying the broad principles.

[MY COMMENT: Senator Specter will try to claim Roberts as his own, then, even though Roberts seems far more interested in understanding a "living constitution" from the perspective of what the Founders intended than from the perspective of the evolving needs of a growing society].

Conclusion

So understood, this exchange provides a fascinating window into an issue that still occupies the attention of legal scholars today.

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