Yesterday, former Supreme Court Justice John Paul Stevens spoke at the Chapel as part of the Georgia Law Review’s symposium on the Constitution 50 years after the resolution of New York Times v. Sullivan. Brian Underwood attended the event. Below is a summary, accompanied by his thoughts.
While I imagine that the symposium hosted by the School of Law was a low-key event through most of the day, the Chapel filled to capacity well in advance of former Justice Stevens’s keynote address to a crowd composed of professors, former Supreme Court clerks, attorneys, members of the public and students. The final group, I will note, showed a wide variety of dress, ranging from my full suit and bowtie (in honor of Justice Stevens’s favorite neckwear) to my friend’s “jeggings,” large T-shirt and cardigan.
Amusingly, as Justice Stevens came on-stage I saw several students turn the wrong way in their seats, attempting to capture “selfies” with the former member of the High Court.
Stevens was introduced by Prof. Sonja West, an associate professor at the University of Georgia School of Law and a former legal clerk for Justice Stevens. Professor West reviewed a list of noteworthy facts about his life and career, including his presence in Wrigley Field during Babe Ruth’s famous called homerun in 1932, his service in the Navy during World War II as a cryptographer, for which he was awarded the Bronze Star and (less honorably) his antitrust legal practice.
Stevens was appointed to the Seventh Circuit Court of Appeals by President Richard Nixon, and then to the Supreme Court by Gerald Ford. During his tenure on the Supreme Court, West noted that Stevens was the only justice in the history of the court to write the first draft of his opinions, and the only justice at the time who would ask his clerks for recommendations on which cases should be heard before the court.
THE EDITORS: Spell check is having a fit over “Originalism,” 27 years after Scalia’s nomination and 26 after the Great Borking. The philosophy has a long way to go.
Justice Stevens began his address by candidly admitting that he had not read the topic of the symposium (“The Press and the Constitution 50 Years After New York Times v. Sullivan”), and instead had prepared an address on the topic “Originalism and History.”
He repeated the solemn purpose of the judiciary — that is, to faithfully interpret the meaning of the Constitution and the law as the Founders (and authors of later amendments) carefully and deliberately crafted them.
He continued by iterating his disagreement with the Court’s rulings in both District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), which declared a constitutional right to possess small arms for personal defense and incorporated that right to states and municipalities, respectively.
Recounting a story from his childhood, Justice Stevens noted an occasion when he was in Atlanta and his father purchased tickets to see Gone with the Wind in theaters. He recalled a scene involving the destruction of Atlanta and the playing of the song “Dixie” that caused an intense emotional response among the moviegoers — so intense he was afraid to so much as whisper lest his accent betray him as a Chicagoan. This drew laughter from the crowd. He went on to say that, later, a friend told him he had misremembered the scene, although Stevens remained confident in his memory of the emotional response. He used the point to exemplify how there are limits to appealing to history when issuing legal rulings, as even eyewitness testimony can be flawed.
Continuing with the Gone with the Wind motif, Stevens noted how author Margaret Mitchell’s statements on the election of Reconstruction Republican Rufus Bullock (which were not kind) to Georgia’s governorship over Democrat and former Confederate General John Gordon (which were glowing) conflicted with more recent historical accounts of both men. Bullock, who was charged with corruption and driven to resign, was later exonerated of all corruption allegations and became one of Atlanta’s most renowned citizens as the head of several businesses and president of the Atlanta Chamber of Commerce.
Gen. John Gordon, on the other hand, is now suspected to be a leader of the Ku Klux Klan in Georgia at the time, although Mitchell counted him as one of Georgia’s most “beloved” citizens. Again, Justice Stevens made the point that history is a limited source for interpreting the law, as a result of differing accounts from the time period.
Stevens explained that, were history and the original intent of the law the only standards for interpretation, the Bill of Rights would not likely have been incorporated to the states, and that many times the Court must take the principles of the law and apply them to similar cases beyond the original intent of the law itself.
To elucidate the point, Justice Stevens quoted one of his most famous opinions from Wallace v. Jaffree (1985), which struck down an Alabama statute requiring a moment of silence in public schools “for meditation or silent prayer” as a violation of the Establishment Clause:
“Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed of the majority. At one time, it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.”
Conceding that the historical argument rested with the dissenters, he maintained that while that was not the original intent of the Establishment Clause, it can be extrapolated to produce a different ruling.
Justice Stevens then returned to Heller and McDonald, arguing that, historically, the Founders did not intend for the Second Amendment to cover firearms for home defense, that incorporation was not an issue in Heller and that United States v. Cruikshank (1876) correctly concluded that the Second Amendment only applies to the federal government and does not guarantee a right to own firearms.
Broadly speaking, Justice Stevens appeared to conflate “original intent” with “originalism” wholesale, or else focused only on one particular theory within originalism. He was, I noticed, careful to only use the words “original intent” throughout his address, which is but one form of originalism that most originalists reject. He did not address — directly anyway — “original meaning theory,” which interprets the law based on how reasonable persons living during the time of its drafting would have read and understood it. This second form of originalism is more closely related to textualism, and is the theory to which Justice Scalia and most mainstream originalists subscribe. And, despite how variably Justice Stevens has been ideologically classified, he himself appeared to be a sort of originalist. The notion that the law establishes certain principles that may extend beyond the law’s original intent and purpose, for which Justice Stevens advocated, is a form of “framework” originalism.
Justice Stevens concluded his address to a standing ovation and proceeded to field questions:
- When asked whose opinions he thought were most well-written (Stevens was an English major), Justice Stevens said he liked former Justice Potter Stewart’s the best.
- When asked a question related to the recent ruling on the Voting Rights Act, Justice Stevens said the majority made a compelling argument that the portions of the law struck down were no longer necessary, but that it should be the legislature that determines the issue.
- When asked about the dissenters’ appeals to tradition and history in the recent DOMA ruling, Justice Stevens clarified that he did not believe history could not inform a decision, only that it could not determine it.
- When asked if he thought Heller signaled a move away from originalism, Justice Stevens said that he did not and believed that originalism would be around for some time, though both advocates and critics of orginalism have questioned the basis of the ruling.
The questions concluded with another standing ovation. Exeunt omnes.
—Brian Underwood is a senior studying political science and history
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