“Don’t blame me, I just believe in the Constitution.” This, or some iteration of this, is the usual mantra and foundational bedrock for conservatives standing against everything from transgender-inclusive bathrooms, gay marriage, illegal immigration and so on. Jeff Sessions’ confirmation hearings are just the latest public display in which this philosophy of interpretation is critiqued or celebrated by his opponents and allies respectively.
This much is certain: Jeff Sessions is known best for his dedication to the rule of law. This is considered his strong suit by some and his worst attribute by others. The former see this as a boon because it, at least on paper, allows for a more equal standing for everyone before the law. In their minds, Sessions will apply the same standards to everyone across the board. The rule of law will work as an equalizer. His critics respond by saying this dedication to the supposed rule of law has been perverted to harm specific groups in the past, and can be used as such again.
Let’s, for a moment, remove any blood, sweat and tears from the equation and analyze these philosophies as if no lives were on the line. People like Sessions, Ted Cruz or the late Antonin Scalia claim to see the Constitution, primarily, and laws, secondarily, as staid, immovable things. The slur is that these people are strict constructionists but Scalia rejected this label and I think he was right to do so. The law provides wiggle room for interpretation but only within the realm of its own text. In other words, there’s nothing outside the text including your own political opinions or hopes for the world.
The denigrative term for the other side is judicial activism. The criticism is that so-called judicial activists do not care about what the text of laws themselves say, they only care about spinning them in such a way as to benefit their own political or civic agendas. Some of the most notable court cases regularly charged with being ruled in such a way are Brown v. the Board of Education, Roe v. Wade, Bush v. Gore, Citizens United v. Federal Election Commission and Hollingsworth v. Perry.
That list should return us to reality pretty quick. Cases decided by originalism are pretty status quo because that’s sort of the whole point. It preserves the norms of society as upheld by our current laws. The most momentous court cases, as seen above, are usually the result of a judiciary stretching themselves beyond what’s in the text itself to import their own values or the values of society as a whole into the law. This can be much to the chagrin or delight of both conservatives or liberals, depending on the case. There’s a bit of the so-called constructionist and the activist in everyone, as both strategies can be adopted to pursue personal political goals.
Enter Sessions. Much has been made of his failed flirtation with a federal judgeship position in the Reagan era and his troubling record on race. But like it or not, he has a consistent record with upholding the current laws of the land. As a senator, he was an immigration hawk but his calling card was more centered on pointing out how little we enforced current immigration laws rather than bringing onslaughts of new legislation to the table. In this sense, his new role as a federal enforcer rather than lawmaker is well-suited to his pedigree.
There are a lot of complications with Sessions’ approach to race in the past, and the same can be said of the originalism he espouses. Without instances of judicial or legal activism, African-Americans would still be considered three-fifths of a person, emancipation wouldn’t have ever happened and schools would have remained segregated. Pure originalism prevents the address of consistent social inequities and keeps oppressive structures in place, all in the name of the rule of law.
In the Trump era, one key for resistance will be ensuring everyone stays in their place. We didn’t really do this with Obama, but it’s starting to become apparent we should havve. The velvet glove got stretched big enough to fit an iron fist. The Justice Department under Loretta Lynch and Eric Holder was, for better or worse, a largely activist place. Under Sessions, the opposite should hold true and, when it doesn’t, he should be reminded of his own philosophy. It’s probably going to be more effective to trap everyone in their own logical inconsistencies than to suggest further activism.
There’s some hope for this working as, whether you agree with him or not, Jeff Sessions does seem to have more of a conscience and innate consistency than his boss. His originalist outlook for the rule of law led to prosecuting voting rights cases many now look at as motivated by racism, but this same veneration put a higher-up in the KKK to death. The rule of law in 2017 works for and against all of us to an extent, and we can only hope Sessions’ own commitment to it stands up to any of his more potentially activist impulses.
For Sessions to truly uphold the rule of law in 2017, that would require him to uphold abortion and same-sex marriage with the same intense devotion as any laws prohibiting illegal immigration. Statewide marijuana legalization, in the face of remaining illegal on a federal level, will be one of the more interesting legal issues of the Trump era, considering Sessions is both vehemently against marijuana use and, one would assume, in favor of the Tenth Amendment and its current applications to this situation.
For at least the next two years, Sessions will probably get hold of a lot of laws he has no problem enforcing given the Republican majority in Congress and a president whose views on immigration align with his own. The mass incarceration of African-Americans, the unjust sentences for nonviolent drug offenders and swaths of deportation are going to continue on unimpeded. His originalist philosophy has been the prevailing one for most of U.S. history and, if he holds to it strictly, that’ll freeze us in the current time in terms of social progress but won’t necessarily send us hurtling backward. This is depressing, but who knows what can happen?
Who am I kidding? He’s coming for the weed. We all know he’s coming for the weed. We’re all gonna die.