Friday, May 08, 2009

Douglas Kmiec, Now vs. Then

Douglas Kmiec, now:
Based upon his own teaching at the University of Chicago, look for Obama to favor a nominee who is not afraid to challenge either result-oriented liberal judging or the incompleteness of the conservative method that has dominated the Court since Nixon appointed Warren Burger to the bench in 1969. Burger, and especially his successors William Rehnquist and Antonin Scalia, have plied the notion--so-called Originalism--that it’s not up to them to do justice, since they are just following the plain, public meaning of the words ratified two hundred plus years ago.

Plain public meaning is a beguiling idea, until one actually looks for it. Conservatives intone that it virtually delivers itself like the morning paper. (Remember those?) But like far too many departed dailies, it is often not to be found. There was no single public mind in 1787 any more than there is now. Back then, public meaning was no doubt very much like it is today: an admixture of both shared and different conceptions of what a given constitutional phrase was intended to accomplish. Obama’s task is to find a jurist who not only comprehends the limits of James Madison’s dictionary, but also appreciates how real wrongs can be made right with words that have a meaning in the here and now.
Notice the scorn for the "incompleteness of the conservative method" and for "so-called Originalism."

But that's now. This was then:

Douglas Kmiec, October 2007, stating that we shouldn't have a President who doesn't fully agree with "conservative legal thinking":
At the same time, the debate revealed how, despite his protestations to the contrary, Giuliani is not really a supporter of conservative legal thinking.
* * *
The times and circumstances facing our country do not permit us a president who can so easily be misled. We cannot afford to have a president faked out by bogus constitutional arguments. More directly, we cannot afford a president who is only faking his attachment to conservative legal principle.
Douglas Kmiec, in a lengthy 2007 article praising Romney for being committed to appointing originalist judges:
Do "we the people" really have sufficient confidence that the justices will objectively seek out this original meaning and apply it? Unfortunately, because some members of the judicial branch have imposed their personal will in the past, there is legitimate doubt as to whether America today still lives by the rule of law.
* * *
Governor Romney recognizes that the best way to respect the Second Amendment - like other protections in the Bill of Rights - results when, but only when, the justices are fairly guided by the original meaning of the constitutional text.
* * *
I am confident that when the people of Iowa and New Hampshire have spoken, my fellow travelers promoting original understanding, limited government, and human freedom will rally to the side of the best candidate.
Douglas Kmiec, in yet another 2007 article, proudly noting his association with Romney, precisely because of Romney's belief in originalism:
Mother always told me to be careful about the company I keep.

In this case, Mitt Romney is in the company of the most erudite exponent of the original understanding of the Constitution bar none, Justice Antonin Scalia, and Ronald Reagan who knew that the three most important words in the Constitution were “we the people.”
Douglas Kmiec, August 2005, arguing that the Court should have been "faithful to the original understanding" of the Constitution:
As a matter of law, IJ was right to ask the Court to observe the actual words of the Fifth Amendment: "Public use" means what it says - public, not private use. And the Court should have said so.

This bright line rule would have supplied needed reassurance to homeowners and viable small stores and shops, been faithful to original understanding, and kept the Court out of the sticky business of second-guessing municipal judgment.
Douglas Kmiec, May 2005, heavily criticizing those who are opposed to the "original understanding of the Constitution":
Almost any nominee for the Supreme Court who is serious about observing the original understanding of the Constitution and a restrained judicial role can be expected to be caricatured as "out of the mainstream" and trigger the Democrat's "extraordinary circumstance" pretext to filibuster anew.
Douglas Kmiec, in a 2005 article honoring Ed Meese:
“Ed Meese was the founding father of original understanding,” says Douglas Kmiec, professor of law at Pepperdine University and former dean of Catholic University of America’s law school. “Everyone on the Supreme Court today is an originalist,” Kmiec argues. “That was not the case,” he says, “prior to Ed Meese.”
Douglas Kmiec, Feb. 2004, arguing that the Establishment Clause should be interpreted according to the "original understanding":
I don't think it's radical at all because I think it's based on the original understanding and I think the Court itself is returning to the original understanding. Where it went wrong was to adopt a metaphor of separation of church and state, a metaphor that Thomas Jefferson used in private correspondence, not with regard to the establishment clause but with regard to free exercise, where he was comforting Baptists who were being prosecuted and persecuted and physically assaulted because of their religious beliefs. And of course, that was a violation he said of free exercise. The Supreme Court has actually in my judgment, in the last two decades, understood better the Establishment Clause than it had done in the 1940s and '50s when some of these problematic tests first emerged in terms of our jurisprudence.
Douglas Kmiec, testifying before the U.S. Senate in 2001, arguing that judges are "simply to enforce the Constitution and laws as they were written, according to their original understanding":
Hamilton responded to this criticism by emphasizing that it was not the job of judges to make law, that their role under the Constitution was simply to enforce the Constitution and laws as they were written, according to their original understanding. By doing so, Hamilton explained, federal judges would be acting as agents of the sovereign people themselves, and would do their part in implementing the rule of law. It was true that judges might sometimes be called upon to declare statutes invalid because of the dictates of the Constitution, but this was the role envisioned in those specific, and one might hope, rare cases. . . . Sadly, this is forgotten far too often today. Courts are casually discussed as merely alternative policymakers.
Douglas Kmiec, 2004, praising Reagan for changing the outlook of the federal judiciary:
"Faithfulness to the original understanding of the Constitution is now an acceptable methodology, as is a reaffirmation of federalism and separation of powers," [Kmiec] says. "President Reagan turned a system dominated by party courtesy and patronage into a systematic process that was an extension of his policies."
Also worth noting are some of Kmiec's articles:

Douglas W. Kmiec, The Original Understanding of the Free Exercise Clause and Religious Diversity, 59 UMKC L. Rev. 591 (1991)

Douglas W. Kmiec, The Original Understanding of the Taking Clause is Neither Weak Nor Obtuse, 88 Columbia Law Review 1630 (1988).

Douglas W. Kmiec & John O. McGinnis, The Contract Clause: A Return to the Original Understanding, 14 HASTINGS CONST. L.Q. 525 (1987).

13 Comments:

Blogger Bryan said...

I've been so puzzled about Kmiec and have been trying to figure what happened with him. Was it Iraq? I just don't get it.

9:29 PM  
Blogger Thomas More said...

Sadly, I think it is a combination of some of his family being big Obama supporters before he came out in favor of Obama, a loss of mental clarity due to Parkinsons' and the medication needed to keep it in check and frustration at the lack of a judgeship.

Please pray for him.

10:45 AM  
Blogger Michael Drake said...

Perhaps it's too early to judge, but it does at least appear that Kmiec has changed his mind. (I have it that people do that from time to time.)

I don't see any evidence of Parkinson's or medication-induced infirmity in the most recent statement quoted, but the concern expressed for Kmiec's mental clarity is heartening.

12:02 PM  
Blogger Stuart Buck said...

Everyone has the right to change their minds, but epiphanies like this are usually due to something a bit more substantive than having found out that one backed the wrong horse in a political race.

1:49 PM  
Blogger Michael Drake said...

I don't get it. Kmiec was backing the right horse as of March of 2008.

3:21 PM  
Blogger Stuart Buck said...

But immediately before that, he was working for Romney's campaign, in which regard (as noted above) he was writing articles praising Romney precisely for his commitment to originalism. And before that, Kmiec had been one of the most prominent defenders of originalism for the last 20 years. But the instant that McCain beats out Romney and Obama looks like a winner, suddenly Kmiec has a sincere change of heart as to originalism? A bit convenient, no?

10:59 PM  
Blogger Michael Drake said...

In October 2007, Kmiec praised Romney for his originalism.

In early February (not March, as I said above) of 2008, with Romney out of the Republican race, Kmiec endorsed Obama, but on other grounds.

More than a year later, by May of 2009, Kmiec is expressing scorn for originalism.

I think Kmiec's apostasy is odd and largely nonrational, but I think most apostasies are odd and nonrational, and the career of Kmiec's apostasy fits the standard profile. Apostates in either direction routinely wind up declaring fervently things a year before they would have characterized as BSI.

More importantly, the cynical explanation doesn't really make sense: What exactly would have been the benefit in endorsing Obama in February of 2008, when both Hillary and McCain were in the running and it was far from clear that Obama would win? Furthermore, if Kmiec's was only motivated to go with the winner, why didn't he switch parties in 1993? Questions like these could be multiplied.

9:24 AM  
Blogger Stuart Buck said...

Fair points, but this isn't the first sign of a complete reversal on constitutional issues (check out this post, which cites Kmiec writings as of March 2008). It's very odd, as if Laurence Tribe had suddenly come out in support of originalism, pro-life judges, etc.

9:53 AM  
Blogger Michael Drake said...

Definitely odd.

8:02 PM  
Blogger Mike said...

I think that, after Raich, a lot of people became disillusioned with originalism. I sure did. I no longer take it seriously.

Before Raich, there was Sabri. I talked to Kmiec the day Sabri came out. He disappointingly said, "Not even a single no vote?"

When you see so-called Originalists perverting it, it's easy to lose one's faith. How many Catholics lost their faith after the Church's handling of priest molestation?

Similarly, I was a Republican until George W. Bush et al. perverted the party. I would be embarrassed to call my a Republican or conservative. I didn't support Obama, though I was damned close. Indeed, up until Obama's connections with Fannie Mae and Freddie Mac became public, I supported him. Of course, McCain was mobbed up with Fannie-Freddie, too.

A lot of damage has been done to the GOP and originalism. I don't think every heresy has as its basis Machiavellianism.

8:44 PM  
Blogger Stuart Buck said...

But the point is that I understand your philosophical journey . . . whereas I don't understand the supposed philosophical journey of someone who was fervently arguing for conservatism and originalism while working on Romney's campaign, but then suddenly became disillusioned with those positions the instant that Romney was out of the race.

11:42 AM  
Blogger Mike said...

Disillusionment, like enlightenment, often occurs over night.

It could also be that Kmiec was having doubts during the Romney campaign. In today's society, it's unpopular to express doubts. You must pick a side. So it's not as if Kmiec could have kept us informed about where on the continuum he was on any given year.

12:02 PM  
Blogger Francis J. Beckwith said...

But the question is really: who is the original Kmiec?

7:01 PM  

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