A Note On Jill Lepore's New Yorker Essay, Weaponizing The Past

3/31/17

A long note On Jill Lepore's essay in the New Yorker on Weaponizing The Past:

Friend A, not a lawyer:

...There is an essay in this week's New Yorker (March 27) on the use of historical accounts of beliefs of earlier times, from the Greeks on, in making legal judgments.   Judges on both sides of the liberal-conservative divide appeal to historical precedents (in the non-legal sense of the term).  I had not heard of this.  

Friend B, not a lawyer...

....It's this: "Weaponizing the Past", and it seems to be largely a hit at Gorsuch via Scalia and so-called "originalism". As she's done before, I think the author, in her focus on "the past", here misses the point, which is the idea of applying a law that it's not the business of judges to make. Problems arise, granted, when a made law must be judged in terms of a higher law, which is either written, as in a Constitution, or unwritten, as in Common Law, and this is where history comes in. But the history only becomes "weaponized" when it's wielded not to determine the meaning of the higher law but to force it to fit some prior agenda or purpose -- i.e., to change the law...

Then along came Jones, me:

....I didn't know that LePore, with whom I have only an occasional familiarity, having read her occasional journalism occasionally, had "done this before", but I can believe it. I read this essay at least in part as tendentious, to put the subtle boots to Gorsuch. 

I'm not so familiar with the history test, with which she seems happy enough, if I read her rightly, when it yields results she likes; and she poo poohs its use for conservative ideological ends. I don't get from her, unless I missed it being a child of the 21st century with a declining attention span, a definitive thumbs up or thumbs down on the test. I note though she speaks laudably of Stone's book, and I infer from that thumbs up for more history, going way way back the better, if, again, she likes the yielded conclusions. 

I am familiar with some SCOTUS reasoning that talks about long held innate traditions of basic rights deeply embedded in the common law, the rights of which are left with "We the people," unless otherwise specified by the Constitution, as in the enumerated powers given to the federal govt. Despite that familiarity I wasn't familiar with the "history test" as formal doctrine. 

She, in the part that's subtly tendentious and subtly anti Gorsuch/anti Originalism, contrasts the ostensibly cramped, crimped nature of Originalism as a method of historical judicial analysis confined to only a few founding texts, and prone to ideological manipulation, with the good Stone like, Kennedy like use of history to come to good conclusions, i.e., liberal/progressive ones. But her critique is flawed by a minor point: in large measure she doesn't know what she's talking about on matters Originalist large and small. Or she's intellectually dishonest. 

For example, she mistakes and mistates its basic premise, her ignorance or dishonesty glaring in missing the profound theoretical shift in the early 2000s from intention Originalism to public meaning Originalism. LePore ignorantly or dishonestly  asserts the former as if it's still good theory and says 0 about the latter. A sure sign that someone doesn't know their brief is discussing the older theory. 

Originalists decry trying to get at the founders' intentions or answering how the founders would rule in present cases. The theory now has it that the general provisions of the Constitution must be understood by the public legal meaning the terms had when enacted. The principles behind this insistence being fairness comprised in due notice and being the separation of powers. Giving modern meaning to original terms is an act of amendment robbing citizens of fair notice of the law and allowing unelected appointees to usurp the legislature. 

For example, she slags Gorsuch as backward looking, her euphemism for reactionary. Worse, she selectively quotes him as though he concedes that about himself. But as he made clear in the hearing, Originalism is, for him, a forward looking theory that respects original public meaning in order to respect the unelected judiciary's limited role in U.S. democracy and in order to give fair notice but is applied, when original public meaning of itself isn't dispositive, even after putting that meaning in context of the structure of the law and language-derived purpose the words are aimed at, by analogically reasoning to present cases. In a nutshell it's a theory of properly determining the law and applying it. 

For example, she doesn't acknowledge that there's an Originalist case to be made that Plessy was both wrongly decided on and is, in effect, in its error, an example of errant living document theory. And she similarly doesn't acknowledge that there is a case that Brown can be read to have been decided on originalist grounds. It's not that she has to agree with these arguments. It is that she's silent about them in effect asserting they don't exist.

For example, so eager is she to decry Originalism as conservative gobbledygook to yield preferred judicial outcomes, that she pays no attention to a whole school of Originalism that sees in original public meaning the seeds for liberal interpretations of the Constitution. 

For example, she omits that it's now malpractice to argue in appellate courts without presenting, along others, originalist arguments.

Finally, for example, not that what I'm saying is exhaustive, she makes no reference to Textualism, a kind of New Critical legal theory that says legislative intent is to be derived solely from the text, seen in itself and in context with its statute, regulation or executive order as a whole, (bracketing precedent for the moment.) Originalism is a subset of Textualism. 

The more I wrote this, the more critical I became of LePore here. And the less subtle do I think is her hidden agenda...


http://www.newyorker.com/magazine/2017/03/27/weaponizing-the-past