We (Who Are Not) the People: Interpreting the Undemocratic Constitution with Milligan and Ross

Episode Notes

Transcript

Speaker 1:

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Mitch Winick:

Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts La Deans Jackie Gardina and Mitch Winick.

Joy Milligan:

We the people was not we the people. It was a very small subset of the people that got to write and weigh in during the political process of ratification.

Bertrall Ross:

One could imagine that if it were a Supreme Court comprised of mostly women justices throughout its history, I think we would probably be in a different place with respect to the types of rights that would be given and granted protection.

Mitch Winick:

That’s Dr. Joy Milligan and Professor Bertrall Ross. Today’s guests on SideBar

Jackie Gardina:

Mitch. I’ve always talked about the federal constitution and those involved in writing it with a certain amount of reverence. I recognize it’s an imperfect document, but it was revolutionary for its time and identified revolutionary ideas such as a country where the government obtains its power from the people. In fact, the preamble starts with we the people, and when interpreting the constitution, courts have often relied on the idea that the Constitution was ratified by the people and the laws enacted at the time of the founding were the result of a deliberative democratic process. But in reality, they weren’t White male property owners were primarily the only people allowed to ratify the constitution and vote on subsequent laws. White women didn’t have the right to vote until 1920, and black men and women didn’t really have the right to vote, especially in the South until the Voting Rights Act of 1965. So given this reality, an important question is raised. Should the court rely on what the framers thought or what laws were passed in the 18th century to decide 21st century issues?

Mitch Winick:

Jackie, that is a great question. Right now, the conservative majority on the Supreme Court is committed to interpreting the Constitution based on what they are defining as the nation’s history and traditions. Justice Alito and Dobbs. The decision overruling Roe v. Wade reached back to 13th century England in his effort to support the majority opinion that our nation’s history and traditions did not contain a woman’s right to reproductive freedom, arguing that if it didn’t extend to America from British law, it couldn’t exist at the time the Constitution was ratified. My concern is that when he uses the term history and tradition of the United States, he ignores that from 1789 until 1920, more than 130 years, the tradition he celebrates is only white men in elected positions that passed these historic traditional laws that he’s relying on. Furthermore, when Roe v Wade was decided in nineteen seventy three, a hundred and eighty seven years after the Constitution of we, the people was ratified, only seven women had ever served on any level of the federal court and no woman had ever served on the state’s highest court 187 years of only men defining what we the people want. So Jackie, the question we want to explore today is whose history and tradition is Justice Alito really referencing in his judicial decisions?

Jackie Gardina:

And we are very excited to have two guests today who have thoughtfully written about these issues and the court’s recent reliance on history and tradition to interpret the constitution. Dr. Joy Milligan is the Martha Lubin Karsch and Bruce a Karsch bicentennial professor of law, the University of Virginia School of Law. She graduated magna cum laude from New York University Law School. She earned a PhD in Jurisprudence and Social Policy from the University of California Berkeley with a focus on race, politics and legal history. And she holds an MPA from Princeton University and an AB in social studies magna cum laude from Harvard Radcliffe before entering academia. Joy Milligan practiced civil rights law at the NAACP Legal Defense and Education Fund. We also have Professor Bertrall Ross. He’s the Justice Thurgood Marshall distinguished professor of law and director of the Car Center for Law and Democracy. He earned his undergraduate degree in international affairs and history from the University of Colorado Boulder, his graduate degrees from the London School of Economics and Princeton University School of Public and International Affairs and his law degree from Yale Law School. They’re with us to discuss an article they co-authored We Who Are Not The People Interpreting The Undemocratic Constitution. Welcome, join Betrall. Thanks so much for having us. We usually think of the federal constitution as supporting democratic principles, laying the foundation for our constitutional democracy. It has almost a mythical quality, but in the title to your article, you actually say the opposite, that we have an undemocratic constitution. What do you mean by that?

Joy Milligan:

We the people was not we the people. It was a very small subset of the people that got to write and weigh in during the political process of ratification. And that holds true not just in the original document, but of course in areas like the reconstruction amendments and even more modern amendments from step one poking a hole in some of those myths which may sometimes have healthy functions in affirming our desire to be a democratic we the people, but we think we need to be realistic about what the past actually was.

Bertrall Ross:

And the claim ultimately is not that the Constitution is a bad document, the constitution is not a constitution we shouldn’t follow, but it suggests to us it’s something that we need to interrogate more closely when we apply it, particularly when we apply the Constitution in ways that impact communities that were unrepresented at the time that these different constitutional provisions were written. The Constitution’s document itself in its original form in 1789, the Bill of Rights in 1791. And of course the reconstruction amendments are what follows to treat the document as if it were neutrally and inclusively derived is a mistake in our mind. What that mistake can contribute to is interpretations that further exacerbate the exclusions that the Constitution manifests within itself. Our idea is really focused on let’s interrogate this historical past and let’s reflect on what that might mean for constitutional interpretation,

Mitch Winick:

Joy and Bertrall. Not everyone who listens to our podcast has a legal background or even understands how the Supreme Court goes about interpreting the Constitution. We hear terms such as originalist, textualist history and tradition. Can you explain these terms and what they mean in the context of judicial interpretation of the Constitution With

Bertrall Ross:

The Supreme Court as currently constructed, there is a majority in many cases that seeks to interrogate the meaning of constitutional provisions by looking to history. And there’s a couple of different ways you can look to history. One way that different justice I’ve employed over the last three decades at least, is what’s referred to as an originalist methodology under an originalist methodology. You’re trying to get at what was the intent of those who wrote this document? What did they intend for these provisions to mean? How did they expect these provisions to apply? And so you see Justices doing the work of trying to ascertain from the convention notes or from the Federalist Papers, which is a propaganda book, supporting the Constitution to ascertain what did they mean by these different provisions. A second originalist methodology goes to it’s described as original meaning and what they’re doing here is not really looking to what the intent of those who adopted the constitution was, but rather how the people at the time that the constitutional provision was written, how they would’ve understood the terms or phrases in the Constitution.

And you see justices used dictionaries from the 17 18th century to see what did these terms and phrases mean at that particular moment. And recently we’ve seen a third methodology emerge that also relies on history which has been labeled the history and tradition methodology, and here there is some reliance on what the terms and phrases meant at the time that they were adopted, but there’s also reliance on what happens subsequently with respect to particular rights that might be found under the Constitution. And so with respect to the claim and dollars, whether there’s a reproductive right, reproductive women have reproductive freedom, the question that the court interrogated is whether there was a history and tradition of protecting reproductive freedom or was there a history or tradition of regulating abortion? The answer to that question under the history and tradition analysis informs what the Constitution should mean with respect to that, right? If that reproductive freedom has been regulated in the past over time, then it suggests to the court that is not a right entitled to protection of the Constitution. Whereas if it’s something that has been protected in history over time, then perhaps it is something that should be entitled to protection In the history and tradition methodology,

Joy Milligan:

Particularly in the context of abortion rights, we’ve seen history and tradition become a prominent methodology in part because we have a constitution that doesn’t include every right that we might think of as fundamental and we have a long history of a doctrine under the due process clause that protects certain substantive rights associated with family life, the right to rear your children in the way you see fit, rights associated with marriage, other things that we think of as core to kind of individual autonomy and freedom. And there’s a long history in the 20th century of protecting those kinds of rights. That relied to some extent on the idea of a tradition because we didn’t have a text to explicitly support these things, but now it’s come to the forefront because the current more conservative court has really narrowed what they think of as tradition. It’s not this abstract tradition that we’ll look to broad principles. We need to look and find out if there were any laws that actually gave you something like this very specific right? And of course that becomes a problem in a place like abortion rights because there weren’t such laws.

Mitch Winick:

You also talk in your article about this concept of enumerated rights. You suggest that that’s one of the other definitions that should be considered. Talk to us a little more about that.

Bertrall Ross:

You have to remember that the Constitution sets forth in its original form a bill of rights, which includes eight amendments, 10 amendments, but eight amendments that are articulating particular rights. The framers of the Constitution had some reservations about including a bill of rights, and their reservations were based on this idea that if we put forth this bill of rights, then it might suggest that these are the only rights entitled to protection. They did not intend that set of rights to be the exclusive list of rights that are entitled to protection. So they included some catchall phrases in different provisions that perhaps allowed for the inclusion of other rights as being entitled to protect it under the Constitution. Those silences with respect to rights had to be filled in. When the court has gone about interpreting the Constitution over its history, it has filled in gaps in the Constitution by finding that the Constitution, particularly under what joy has already described, the 14th amendment due process clause, that the Constitution does protect these rights that are not enumerated in the Constitution, that they’re not listed in the Constitution but are nonetheless necessary for ordered society that are core components of our liberty and our autonomy.

And so those are the enumerated rights that the court has historically protected. And what’s changed now is that the court, as joyous described, has taken a much more narrow and cramped view of unen enumerated rights. There’s a view that some of the justices share that only the rights that are set forth in the constitution should be entitled to protection with some limited extension of those rights and those justices are uncomfortable with the court engaging in the process of protecting rights beyond those rights that are listed or directly connected to those that are listed in the constitution. We

Mitch Winick:

Are going to take a quick break and then return to our discussion with professors. Joy Milligan and Bertrall Ross

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Jackie Gardina:

I think for people who aren’t court watchers. In 1973 we had a court who said that a woman’s right to choose was protected by the constitution and then almost 50 years later we get a court that says it’s egregiously wrong. When did the history and traditions test in its current form take prominence and what was being used before? I think it’s very confusing for people to have the Supreme Court, which is one entity come out with two very different decisions about the exact same document.

Joy Milligan:

Going back to early decisions from the 1920s, we had to process decisions that were reading in unwritten rights, enumerated rights to things like the freedom to parent your children to broad rights, creating the family as you see fit. They established this idea of a right to autonomy in these decisions about a family. Fast forward later in the 20th century before Roe, we see the court starting to protect things like contraception sometimes in the name of a married couple has the right to not be criminalized if they want to use contraception in the privacy of their bedroom. Again, a pretty traditional concept of a family and who was entitled to production, but the court was starting to broaden this more abstract principle about right to liberty in these decisions about family intimacy, whether to bear children that ventured into contraception. Roe kind of emerges out of that broadening the idea of the right of married people.

We see the court first broaden that to everyone has some sort of right to decisions about contraception, to access to contraception and then broaden it further to the idea that choice about whether to bear children encompass decisions about abortion. That was where we were in the 1970s still with this idea of tradition. What are the concepts say of ordered liberty that underpin our nation, but there were very high levels of abstraction. It’s only later that we see again people like Chief Justice Rehnquist in the late eighties and the early nineties in other decisions about other kinds of enumerated rights start to suggest that the court needed to tamp down and not just use broad principles otherwise. They were confronting cases about say, is there a right to assisted suicide? They didn’t want to just open up a free for all and at the broadest level that one can imagine the rights to make these kind of intimate and fundamental decisions about our lives.

And so the more conservative justices wanted to create a history and tradition approach that would only recognize certain rights and they suggested that these should be ones that have been more specifically recognized protected by law. The response from swing justices like Justice O’Connor or Kennedy at that time was that perhaps some version of that method might work, but Levy v Virginia A. Case that struck down criminal laws barring interracial marriage at the state level, that a case like Le v Virginia had an equality component to it, but it also recognized an un enumerated right this interest in marital freedom and the right to create your family. And they said there was no well-established tradition of allowing interracial marriage. We wouldn’t have that case and that was their objection. But the court has moved away from that kind of centrist view and more towards yes, we just need to only protect the things that have been protected in some other legal form if not explicitly in the text of the Constitution.

Mitch Winick:

As you walk through that decision tree of the court, what I still hear is they found unin enumerated rights when it extended the rights to men marriage, the right of the privacy of the marital home, the marital room, but they seem to have a problem extending enumerated rights if they were only rights that gave benefits to women. Is that too simple of a read on what many of these laws were and now appear to still be,

Joy Milligan:

You still have an all male Supreme Court of course until 1981. So in this era it’s male justices deciding these things, but they do get to row, they do get to an abortion so they see where their logic brings them and that even if the rhetoric say contraceptive cases, if Griswold, the famous contraception case seems to talk about the marital bedroom sort of in that every man’s home is his castle, it does have a gendered rhetoric that you can sense in it. Nonetheless, they extended the logic and we kept pushing that logic forward.

Bertrall Ross:

I think it’s an interesting point to reflect on sort of the evolution of the course jurisprudence and I think there is a desire to create comfort surrounding the protection of the rights that fits within traditional heteronormative concepts of living. You see, with respect to the early family rights or the early enumerated rights that were given protection, those were family rights, that rights that are built around the home, the traditional home you get to contraceptives, it’s about sort of marriage. Even with the ROE decision, it’s a favorable decision in terms of protecting some reproductive autonomy, but it certainly doesn’t go as far as abortion rights advocates would’ve wanted to push it. And so it was kind of a middle ground that abortion rights activists found frustrating in some respects. And then as you see the evolution of that, right with the undue burden test announced in this case called Casey in the mid 1980s, it’s again taken a further somewhat of a cramped view and one could imagine that if it were a Supreme Court comprised of mostly women justices throughout its history, I think we would probably be in a different place with respect to the types of rights that would be given and granted protection.

There’s kind of a superficial appeal, however to the history and tradition methodology that scholars have to wrestle with the history and tradition methodology as argued by the court is a methodology that’s designed to impose some restraint on the courts in protecting enumerated rights and to allow the democratic processes to make these determinations. And the idea being that when the court steps in to protect these rights, they’re limiting the opportunity for legislatures democratic lawmaking bodies to legislate in this space. That’s the appeal that they’re putting forth in cases like Dobbs and other history and tradition analysis, it’s a reason why they seek to narrow the scope of rights that are entitled to protection. But one of the things that it just doesn’t account for is that the reason why unrated or rights generally both enumerated and unrated rights are protected is because of the fear of democratic bodies taking away rights that are particularly important to marginalized minority communities. Often these rights are under threat when they’re exercised by minority disempowered, marginalized communities,

Mitch Winick:

And yet we have critics like Justice Scalia that say You shouldn’t give the power denying unelected judges to interpret the Constitution, but to require we the people to amend the Constitution if we want to change. Yet you have a current court that doesn’t seem to be leaning towards democratic principles. They say on one hand that they want to give the power to the states and yet on the other hand, turn around with a case the next week that says, except when we don’t like what the states do, RA is this just continued to be this struggle of finding a methodology that fits their ideology.

Bertrall Ross:

The democracy that they’re turning these decisions over to is a very distorted democracy, a very distorted democracy in the terms that you’ve described with respect to gerrymander districts in terms of the exclusion of marginalized communities from participation, the fact that they’re underrepresented in the political process and that’s the democratic process that they seek to turn it over to. There’s questions in terms of what the proper role of the court should be in that space. It would seem that it still would be troubling from my perspective to leave the protection of enumerated rights to democratic processes, but it would be maybe slightly less troubling if the court was willing to step in and check and correct these democratic processes and ensure they operate in a way that those marginalized voices can’t have an opportunity to have a say and the laws are passed. It would still run into the challenge and issue with me is that you cannot correct those democratic processes from the past and those democratic processes were very exclusionary, entirely exclusionary in some respects and to rely on those past democratic actions as evidence of what is entitled to protection right now still runs into that huge democratic offset that the court has not properly wrestled with.

Joy Milligan:

Sometimes it just feels like there’s a shifting conception of democracy because we used to see from the conservative justices, we saw a really strong rhetorical commitment to judicial restraint on the theory that we’re going to defer to legislatures and we don’t use the power of judicial review to strike down legislation and it’s a really clear case, but I think the extent to which they’ve become so committed to this method of constitutional interpretation that they believe is objective and carries us back to some purportedly fundamentally democratic moment in which we, the people by super majorities enacted the constitution. I think that now they’re no longer as committed to restraint towards current legislatures, but really only that mode of originalism, which they think of as embodying deference to a very much, much earlier moment of democratic decision. And as long as they’re doing originalism right, they no longer need to worry and especially when they have written rights, say a second Amendment right, they say it’s in the text of Constitution. We can use as blunt and heavy a weapon as we need to enforce these kinds of rights premised on that founding moment.

Mitch Winick:

Let’s be clear, take originalism back to the original point and Justice Thomas would neither have the right to vote or to serve on the Supreme Court. He seems to skip a little past that and find points in time that his originalism fits his ideology,

Bertrall Ross:

And that’s always been the challenge with court applying originalist methodology or the historical methodologies is that there is remarkable inconsistencies even within opinions in which they’re applying the methodology. I think that one of the things that people have to wrestle with is the point that they make, which also sounds quite persuasive on its face. If you don’t like the Constitution, it can be changed. It’s not for us as the court to change the Constitution and they describe the protection of enumerated rights sometimes as changed in the Constitution, which I don’t think it is. I think it’s just filling in the gaps of what the Constitution is meant to protect, but they would argue that you can change it through Article five, which requires of course super majorities and Congress and state legislatures to change and just think of that white property men adopted the constitution and then set up this extremely high bar for change, and now the onus is on those groups who now are included within the democracy to exceed that high bar to secure a change. For me, that’s troubling, that’s problematic, and I think that that’s something that people also need to reflect on.

Jackie Gardina:

It’s interesting because it’s being duplicated in states today with Ohio attempting to raise the threshold to change its constitution before the people were able to vote on whether or not to enshrine reproductive freedom within it. So it’s being repeated joy. You talked about Justice Kennedy and Justice O’Connor being the center, keeping the originalist or history and tradition a little bit more centered, and we had Nina Totenberg on last season and she said this is the first time that she’s been with the court that doesn’t have a center. It’s extreme. You also raised a Second Amendment, which is another place where history and tradition, this test has really wreaked some havoc and I think Justice Jackson did a really good job in a recent argument about what you’re talking about, which is the court picking and choosing the history and tradition or whose history and tradition gets to be looked at.

Just want to give a little bit of a background and then play a clip that we can then talk about. In United States v Rahimi, the court heard oral arguments about whether a federal law that prohibits people with a history of domestic violence to possess a gun is unconstitutional under the Second Amendment. And a big part of the question or the argument was about this idea of history and tradition. They’re looking back to a time where it wasn’t in any way illegal to strike your spouse and in fact in some places actually was seen as appropriate corrective measures. Justice Jackson doesn’t bring up so much the gender issue, but other issues. And so let me just play the clip. This is her talking to Rahimi’s attorney. What about these laws that did restrict people from access to guns in the past?

Speaker 9:

So I guess I’m just trying to understand, maybe this is an aside, but your brief does indicate that you are aware of historical bans, laws banning firearm possession by disc favored categories of people and the government talks about this as well, and so do you agree with the government that those kinds of bans we don’t look at or care about when we’re trying to figure out whether or not there’s history and tradition here? Yes, and I don’t want to speak for my friend. I understood the government’s position to be, we don’t look at those laws in this case it sounds like they may still be on the table for some other person who’s outside the political community. I said you don’t look at them at all because number one, they’re awful. They’re terrible laws. We should not give credence to a suggestion that a legislator in 1870 in the South, so we should not, but we have a history and traditions test. I guess I am a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people’s history counts. So what do we do with that? Isn’t that a flaw with respect to the test?

Jackie Gardina:

How does what you heard from Justice Jackson align from your position on the history and traditions test?

Joy Milligan:

There’s this debate about laws that prevented enslaved people, native Americans, people perceived as disloyal from having guns back in this earlier time. But at a macro level, it bears out our point that we have to look at the reality of the past and choose how we’re going to draw upon that past. We embrace that position. You can’t say, well, the ugliest parts of history and tradition, that’s not what we meant. So when there’s an affirmatively discriminatory law will ignore it, but then say that the absence of laws which may rest on that exact discrimination, the failure to protect particular people that we’re going to embrace the silence of the past as that’s perfectly fine. I think it’s just deeply inconsistent. And our point would be of course you have to look at all of it, not because it was legitimate to enslaved people at all, much less take away their rate as compared to others. But just to say if the whole point of history and tradition is to be consistent and predictable and look to something fixed, selectivity is at odds with the method. And our larger point is just that’s exactly the uglier parts of the past that we have to address.

Bertrall Ross:

I think that Justice Jackson put it sharply in that oral argument and I think that it’s important to highlight those problems with the methodology and I think that Justice Sotomayor and her descent and dos makes a similar point. You described the history and tradition of the people is not the history and tradition of all the people. And so if you’re thinking about sort of the history and tradition that they are relying on, they’re relying on formal sources, laws that were passed as a primary source or sometimes they’ll look to treat as writers from the 18th and 19th century, which were invariably white men to not reflect on the sources of these materials and then to not think, oh, well, do we need to broaden out our sources to identify what the true history and traditions of all our people are or maybe the history and tradition we’re looking for doesn’t reinforce the point that a right is not entitled to protection.

Maybe it reinforce the point that the right is in fact entitled to protection. The fact that white male legislatures consistently and over time deprived women of reproductive autonomy. Maybe that’s evidence that women are entitled to reproductive autonomy because of the democratic process failures that they have failed to protect the rights of those who are not included in the democratic process and therefore we need to establish protections through the Constitution. There’s a need to not look at it collectively as joy describes, but also a choice that needs to be made in terms of what is this history being used for, what does it prove? What does it show?

Mitch Winick:

We are going to take another quick break. When we return, we will continue our discussion about considering the history and tradition of all Americans in the interpretation of the constitution.

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For Trial. You talked about how they selectively appear to be using sources. You talked about the Federalist Papers. In the news right now is the 14th amendment and let me just quote from May 23rd, 1866, which is a reporting from the floor of the Congress which said I should prefer a clause prohibiting all persons who have participated in rebellion and were over 25 years of age at the breaking out of the rebellion from all participation in offices either federal or state throughout the United States. I think such a provision would be a benefit to the nation. This was Senator Jacob Howard, the leader of the successful Republican debate on the Senate floor on May 23rd, 1866. Using your reminder that originalists should be looking at the meaning of an amendment, they don’t seem to be looking to statements like that in the current conservative. Look at why the 14th amendment somehow shouldn’t apply now.

Bertrall Ross:

Yeah, and I think that you’re getting at the political uses of history, the uses of history to serve purposes. When that history does not serve the purpose, you often see it fall out of the analysis where you expect them to engage in a history and tradition of a certain point. It’s just not there. And so when you get into the question of section three of the 14th Amendment and who is disqualified from serving in office in the future based on actions that they may have engaged in, it seems that the history should be central to how the court thinks about this case if they followed their own methodology.

Mitch Winick:

When it first came up, I thought it was a novel argument, but I really didn’t take it seriously until individuals kept writing about it and I actually started reading about it and then I had to say, okay, well maybe this isn’t an issue of novelty. If we truly want to give some credence to the current court’s history and tradition,

Bertrall Ross:

To the extent that the people start to see it that way, it’s a threat to legitimacy of the court. The court relies on the people and their belief in the court as a neutral lawmaking body, a body that’s making decisions on the base of the law rather than values or their own opinions. That’s not engaging in selective manipulative enterprises but is engaging in a true consistent application of law. If that veneer starts to fail, I think the court is in a bit of trouble.

Jackie Gardina:

The legitimacy of the court is really its only weapon to make sure that people follow its mandates and we’re seeing in real time what happens when multiple states simply say no.

Bertrall Ross:

Although Joy and I and disagree with what the court does with respect to different decisions, I think we both agree that it’s a critical checking body within our Republican democracy. I don’t think either of us wants to it fail, but I think both of us think that its success depends on it acting more as a court and more as an institution that is considerate of its role in terms of protecting rights that is acting in a way that can be perceived as neutral and not value driven.

Jackie Gardina:

That brings us to a place that we always try to go to, which is there’s got to be a path forward. And in your article, you guys actually provide a way to even use the history and tradition test if it’s going to remain with the court in a way that’s more inclusive. Joy. Can you talk a little bit about how we can get out of this quagmire

Joy Milligan:

That in some ways is RA’s baby that part of the article? So I think he should definitely expand on it, but I’ll just say we actually as authors sometimes dispute how much work to do in terms of resuscitating the current constitution and current doctrine where he leans more towards salvage operation and I might be the more let’s push forward in a transformative direction. I think we agree on the endpoints we’d like to get to, but we sometimes dispute the nitty gritty.

Jackie Gardina:

When you say transformational, I mean one of my next questions was do you think that we simply need to rewrite the Constitution or at the very least article five?

Joy Milligan:

I think that we need to get to a place where we can actually have a fundamentally inclusive constitutional drafting process. I think we’ve avoided more severe crises of legitimacy and more severe unrest and violent conflict since the Civil War because of the work that the judiciary has done to update the current constitution. I think to the extent it’s a livable document for us with our current norms and the democracy that we think we in broad stokes want, it’s because of judicial updating as well as things like the reconstruction amendments. But I’ll turn back to Bera because I really love how he thinks about the history point.

Bertrall Ross:

I think that what jury describes in terms of that updating function that the court plays is what we seek to have the court do with a different history and tradition and methodology as put forth in the article. The court has a choice that it can make. It could exacerbate the inequalities that are built into the Constitution and its construction or they can ameliorate them and the ways that they can ameliorate them are seen in the court’s interpretation and application of the equal protection clause. The equal protection clause that was developed during court that was much more liberal oriented was also backwards looking. It did rely on history and what they were looking for in history is for a history of discrimination against a particular group as one of the critical factors to ascertain whether that group should be entitled to protection by the court. And so that history that they’re looking for is laws that harmed that group laws that made it more difficult for the members of that group to live their lives and for the court that was evidence that that group needs us to protect them by closely scrutinizing laws that discriminate against members of that group.

And so you can imagine history being used in that way in the fundamental rights domain as well. You could say, look, there are all these laws on the books that are discriminating, they’re harming, they’re depriving individuals of these rights. Those individuals typically have not been representative of the democratic process. And that for us, the court should be evidence that we need to step in to protect those rights. So that’s a history and tradition. You’re looking to pass laws just like the court’s doing, but you’re looking at it for a different reason. So that’s one of the moves that we seek to make. Another move we seek to make is the point that Mitchell was making with respect to a much more capacious use of sources. And that Justice Jackson implicated in her excerpt that she shared with us that we need to look to more capacious. Let’s look into the history of all the people. The challenge is many of those people that are part of our history, their voices have not been recorded. They weren’t part of lawmaking bodies. We don’t have laws that they passed. They were suppressed, some enslaved, they were subordinated. And so it’s a little bit more difficult to do that work, but if it’s possible to do that work, that’s another move that we should make. And then we get to Joy’s point, which I think is the more revolutionary point

Joy Milligan:

If we’re talking about democratic legitimacy, is there work by the court or possibly other branches? This doesn’t have to be through judicial interpretation of the Constitution entirely. It might be led through Congress drafting statutes using its constitutional powers, but that we may need to think more broadly just about what substantive rights are necessary for egalitarian democracy. Maybe there are these baseline substantive rights that just need to be found in the constitutional framework to get us to democracy.

Mitch Winick:

What words of advice would you give to all of us, not just the lawyers and judges, as to what we should be doing to move forward these constitutional principles that give us our rights?

Bertrall Ross:

It’s been heartening since Dobbs to see the democratic process at work. What you see is that people are deeply engaging these questions. They’re making these questions a part of what they should be advocating for, and it’s not just something that they see as left to other institutions to do. And so I think part of the step forward in terms of protection of rights is to see these within ourselves as a personal responsibility to be the advocates for our rights, to be pushing the boundaries, to be part of governing when those opportunities arise and when those opportunities are not arising to be part of the constituents of people that are going to be pushed back against unfair distortive democratic processes. It’s just engagement is key.

Joy Milligan:

I would just echo what Al said. I think that also thinking about the many ways of engagement are important.

Jackie Gardina:

That’s a really great place and joy and Bert Patrol, thank you so much for joining us today. Your article is really thought provoking and we’ll put a link to it on our website so any listener can access it as well. Thank you.

Joy Milligan:

Thank you.

Bertrall Ross:

It’s been a true pleasure to be here. Thank you so much,

Jackie Gardina:

Mitch. There’s two things that really jumped out at me. We started this podcast in part because we wanted to educate people that kind of those fundamental rights that they hold. There’s a point in the podcast where Joy was talking about the idea that they’ve changed the history and tradition test to a much more cramped test at this point in time. It’s eliminated abortion, but just as Clarence in his concurrence also took aim at contraception, same sex marriages, declaring criminalization of sodomy, unconstitutional, all of those things that were about the personal autonomy and decisions that people get to make around family and relationships are potentially on the chopping block. Given their new approach to history and tradition,

Mitch Winick:

Jack ie, I thought Joy and Bertrall were very careful and cautious and fair in their description of what the court’s doing. Selectively using the history and traditions test, I would have a hard time looking at the same conversation and not use the term hypocritical because I find that the court is selectively using these tests to merely justify the opinions they want to make given their ideology. And we’re seeing the bias that is a white male Christian ideology that this court has charted for itself. This was a 50 year campaign to get ideology of this nature reestablished by the court. What we learned today is there is an analytical process by which one could justify it, but it’s just not being applied in a manner that I think is intellectually honest.

Jackie Gardina:

But I do want to point out that there are judges who do work that is about the rule of law and upholding that rule of law and making sure that the law is working for people. We’ve seen it even with the more controversial election cases and the January 6th defendant cases where judges have spoken quite passionately about our democratic system, about the importance of the rule of law and the judiciary. So I don’t want people to only see the flaws. I want them to recognize it’s an imperfect system with a lot of people doing really good work. Once again, I want to thank everyone who joined us today on SideBar and as always Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

SideBar would not be possible without our producer, David Eakin, who composes and plays all of the music you hear on SideBar. Thank you also to Dina Dowsett who creates and coordinates sidebar’s. Social media marketing.

Jackie Gardina:

Colleges of law and Monterey College of Law are part of a larger organization called California Accredited Law Schools. All of our schools are dedicated to providing access and opportunity to a legal education to marginalized communities.

Mitch Winick:

For more information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.

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