Justice Alito Inaugurates Drexel Law And Waxes Nostalgic

Spring brings birth and renewal, or in the case of Drexel College of Law, a ribbon cutting ceremony. While the inauguration was symbolic (Drexel Law has, after all, been open for business since August and the building opened in January), Justice Alito Amtrak-ed up to Philadelphia yesterday morning to do the honors. (He was joined by Arlen Specter, among others.)

Alito gave a brief speech, talking about his warm feelings for Philadelphia where he sat on the Third Circuit for many years. He said that he liked to think about that hot summer of 1787 when the founders convened to talk about a constitution. He talked of his great interest in the framers whom he described as men of optimism, tolerance and practicality.

His comments suggested a nostalgia for a time 200-plus years ago when a community of men wrote the paper that the Supreme Court has been interpreting – or is it carving up? – ever since. What do we make of these warm memories? I sensed a reverence for the Constitution – a good thing, it seems to me, for any Supreme Court Justice. But reverence doesn’t tell us much substantively. I also heard a subtle claim that that might suggest Alito relies on original intent not simply because it’s required for legitimacy, but also because framers’ intentions were, at core, good public policy. This is a much less apologetic take on framer’s intent than we often hear. Rather than waxing helpless (“sorry we can’t help you, but we’re stuck with the text we’ve got”) his words suggest that he might add “but even if we could change it, we wouldn’t.”

He provided no specifics, of course, and I am reading between the lines. But this does seem to be the logical next step in conservative constitutional jurisprudence: decisions that don’t just sound in the limits of judicial power, but also in good government. In this view, reference to framers’ intent(s) is simply a way of choosing 18th century “practical and tolerant” wisdom over today’s “jaded, short-sighted” opportunism.

In that sense, perhaps Justice Alito is a judicial Ronald Reagan, looking to bring the good old days back to our constitutional law. For him, Philly circa 1787 was that shining city on the hill. Sadly, those cities are never as wonderful – or just – as they appear at a distance.

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10 Responses

  1. It is interesting, as I think Dan’s post suggests, how different conservatives’ comfort level with originalism varies depending on their apparent understanding of and agreement with founding era morality. Methodologically, that could have significant implications–although, in my recollection, such candid uses of history are rare.

  2. Orin Kerr says:

    Justice Kennedy often says this sort of thing, too.

  3. Paul Horwitz says:

    As Jamison and Orin’s comments suggest, and contrary to Dan’s suggestion that we usually hear an apologetic form of originalism, I think this is entirely consistent with the sentiments of many originalists, and certainly of most originalist judges, non-academic lawyers, and laypeople. It may well be the case that they would take the same position even if they thought various provisions of the Constitution were terrible ideas, then or now. But usually they need not make that choice, because they take an entirely heroic view of the choices made by the framers and of their far-seeing wisdom. It seems difficult to me to really assess that wisdom past a certain point. The interpretation and application of the Constitution has itself been so gradually adaptive to changing circumstances (see, e.g., Levinson and Pildes’s article, or Barry Friedman and Scott Smith’s article on the “Sedimentary Constitution”) that it becomes difficult at a certain point to discern whether the Constitution as we understand it, and as even originalists understand it, has been so long-lived because the framers were so far-seeing, or because we have gradually but drastically departed from their own vision.

  4. anonymous, too says:

    It was nice of Alito to come. Why go out of your way to criticize him?

  5. Anon says:

    The “nostalgia” for a time when white men sat together and wrote a document intended to govern the conduct of all genders and races is surely evocative of Trent Lott and his misty-eyed longing for the good old days when Thurmond thundered away. Only some in the legal academy can be so “nostalgic.”

  6. oh, please says:

    Right. As long as there was racism and sexism in the past, we can never praise historical figures or any of their deeds, lest we become accomplices to racism and sexism.

    It’s not nostalgia to suggest that the Founders must have been intelligent people, nor is it s subtle signal of step 5 of the conservative plan to bring back the Constitution in Exile and “Robert Bork’s America.”

  7. Robert says:

    To attempt to extrapolate Justice Alito’s jurisprudence from a handful of pleasant comments uttered at at a ribbon-cutting cermony is akin to predicting the future by reading tea leaves.

    Nice try but don’t you have better things to do?

  8. Scotus hopeful says:

    Doesn’t Breyer harken back to the good ol’ days of the late 1700s as well, with the whole “active liberty” argument? And isn’t the implicit point that encouraging “active liberty” is good public policy?

  9. Scotus hopeful says:

    Doesn’t Breyer harken back to the good ol’ days of the late 1700s as well, with the whole “active liberty” argument? And isn’t the implicit point that encouraging “active liberty” is good public policy?

  10. Scott Moss says:

    Robert —

    (1) Does a law prof have “better things to do” than to try to gather evidence of a new Supreme Court Justice’s jurisprudential outlook? Not really.

    (2) What you call “a handful of pleasant comments” actually is fair to view as praise of originalism, espeically given Alito’s history, on the Third Circuit, of advocating narrow originalist views of the Constitution. E.g., his narrow view of Congress’s power over “interstate commerce” which, in his view, means that Congress was powerless to ban machine guns. In the view of the Cato Institute, this showed that Alito was in fact an originalist. (The following is from a S.F. Chronicle article at the time: http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/11/02/MNG0DFHNR71.DTL):

    “In a lone dissenting opinion as a federal appeals court judge in 1996, Alito argued that the federal ban on possessing machine guns was unconstitutional — a stand described by both admirers and detractors Tuesday as one of the most revealing cases in the lengthy judicial record of President Bush’s nominee to the U.S. Supreme Court.

    ‘He understands the original design of the Constitution as being one of limited government,’ said Roger Pilon, director of the Center for Constitutional Studies at the libertarian Cato Institute.”