Judgifying I don’t Like

by Henry on November 1, 2005

An addendum to the previous post: when Zywicki says that:

I think this cultural temperament may reflect itself in a anti-elitist streak rebelling against the arrogance of the Supreme Court and the federal judiciary and a humility in the face of the common-sense of citizens as reflected through democratically-elected legislatures.

he’s setting himself up for more trouble than he’s bargained for. Consider this recent NYT article.


We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more “liberal” – Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens – vote least frequently to overturn Congressional statutes, while those often labeled “conservative” vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

Whatever conservative justices are showing here, it sure ain’t “humility in the face of the common-sense of citizens as reflected through democratically-elected legislatures.” But as Atrios says, the conservative critique of “Judicial Activism” usually reduces down to a rather less impressive sounding hostility to “Judgifying I don’t like.” If Zywicki genuinely thinks that lack of judicial deference to Congress is a fundamental problem, he should take the obvious next step – start pushing for a new Justice along the lines of Ginsburg or Breyer rather than Thomas or Scalia. Need I say that I’m not holding my breath?

Update: Orin Kerr and others in comments make a good point that I hadn’t considered. To the extent that conservative legal thought is more skeptical of federal law and left wing legal thought more skeptical of state law, Golder and Gewirtz’s analysis (which deals only with rulings overturning federal law) probably stacks the decks. But while this may mean that the snark in my final two sentences was unjustified, it doesn’t give a free pass to conservatives by any stretch. The conservative expressed preference for state law over federal law is hardly unrelated to the fact that (a) the state laws at issue are frequently substantively closer to conservative preferences than are federal laws, and (b) that a strong emphasis on states’ rights makes various forms of economic and political regulation much less feasible in an interconnected economy of 50 states. So too for liberals of course, but the point is that humility in the face of democratic legislatures isn’t the driving force here – it’s calculations about substantive outcomes. The political science literature here has very strong evidence indeed on how judges’ ideologies affect their rulings – Epstein and Segal’s Advice and Consent finds that justices’ ideology is a “remarkably good predictor” of how they will vote on the Supreme Court. And indeed when issues of state law versus federal law collide with the substantive ideological desires of judges, the latter frequently lose, as witnessed by Bush v. Gore which Epstein and Segal correctly describe as a “thinly veiled attempt on the part of the Court’s conservatives to put George W. Bush in the White House.”

{ 125 comments }

1

Brendan 11.01.05 at 11:15 am

Cough cough….yes….

‘Brendan,
You believe that crap about Miers not being far right enough? Was there any doubt that the only issue the far right is concerned about, Miers would decide in their favor and was perfectly acceptable in that regard?’ (jet)

‘However the question remains: with his base turning against him, and with the American (and let’s not forget, Iraqi) people turning against his demented invasion, is it more likely that Bush’s next nomination for the court will be

a: a moderate centrist? or

b: a bug eyed, slack jawed, religion crazed, ultra right wing moonbat?

Posted by Brendan · October 27th, 2005 at 9:20 am ‘

I notice incidentally, that that alleged ‘libertarian’ Glenn Reynolds is throwing his weight behind Alito, yet more evidence (if it was needed) that most libertarians in the States will compromise their deepest beliefs (small government, social liberalism) and throw their weight behind a big government extremist Christian conservative if they think it will lead to more power and influence for them and theirs.

So long Roe vs Wade it was good to know yuh….

Oh go on, tell me why i’m being too pessimistic and that the aggressive massed hordes of the Democrats will put a stop to it…..

2

Villaveces 11.01.05 at 11:34 am

I think it’s clear that activist legislatures would be prone to having their laws struck down by constructivist constitutionalist Judges, but this does not necessarily mean that Thomas or Scalia are more ‘activist’. Furthermore, there is something much more important to be measured than the percentage of decisions to strike down x or y law, but rather the impact of the precedent of the decision, which I’ve never seen measured. That is to say, a judge could make the sole decision, to give an example, to revoke the US Sentencing Commission’s powers to bind judges leeway in deciding court cases, and as a result you could send the entire Court system into a tizzy for years, freeing millions from the nation’s prisons. The only thing that the Supreme Court should be doing is interpreting the Constitution, if this means striking down legislation, so be it.

3

Adam 11.01.05 at 11:40 am

What makes any one think that Alito’s jurisprudence will be unacceptable to libertarians? The theory goes that he’s not supposed to be a legislator.

4

KCinDC 11.01.05 at 11:48 am

Villaveces, how does that fit with “humility in the face of the common-sense of citizens as reflected through democratically-elected legislatures”? Are these “activist legislatures” (now I’m even more convinced that “activist” is just a general-purpose insult with no real meaning) somehow not democratically elected?

5

Mona 11.01.05 at 12:04 pm

Well, the criticism of Zywicki is superficially valid, but not when one digs a bit deeper. We libertarians who think well of the Alito nomination are perfectly pleased to see the SCOTUS rein in Congress when it exceeds its authority, which all too often has the consequence of invalidating the laws enacted by state legislatures. A justice who will not read the Commerce Clause to mean that Congress has unlimited purview is fine by me, and one can expect such justices to find that, e.g., the Constitution does not permit Congress to tell the people of California or Oregon that they may not pass laws permitting, respectively, the medical use of marijuana or to allow physician-assisted suicide for the terminally ill. (Saclia sometimes disappoints, here, but Thomas less often.)

So, I’d be curious to know, wrt the percentages given, how often Scalia, Rehnquist etc. were declining to uphold federal law that would trump state law? And how often Ginsburg et al. were pleased to allow Congress or an administrative agency to do so?

6

Brendan 11.01.05 at 12:04 pm

‘What makes any one think that Alito’s jurisprudence will be unacceptable to libertarians? The theory goes that he’s not supposed to be a legislator.’

Yeah but he’s quite a strict Catholic and according to his mother he is ‘of course’ anti-abortion. It seems to stand to reason that he will be firmly anti-drugs and pornography too, although I don’t of course know this for certain.

7

Sebastian Holsclaw 11.01.05 at 12:14 pm

“Villaveces, how does that fit with “humility in the face of the common-sense of citizens as reflected through democratically-elected legislatures”? “

When the legislature clearly violates Constitutional precepts, it is properly overruled by judges. That isn’t activism, that is the proper role. If Congress outlawed all guns, you would engage in an activist reading of the Constitution to NOT overrule it.

The conservative critique of activist judges is aimed toward the creation of novel Constitutional precepts not found in the text and then overruling legislatures on THAT basis.

Ignoring clear constitutional precepts in not overruling a legislature or creating new ones so you can overrule a legislature are both forms of judicial activism–letting your personal political beliefs control the outcome in spite of the actual law. Counting the number of times a Congress has been overruled tells you very little about which party (Congress or the Court) is being activist by going beyond their respective Constitutional boundaries.

Both branches should be humble enough to stay in bounds. Neither actually are.

8

Chris Bertram 11.01.05 at 12:30 pm

Mona’s comments are rather puzzling. On the one hand she rejects Henry’s criticism of Zywicki as “judgifying I don’t like” as merely “superficially valid”, on the other she makes it perfectly clear that a good judge, by her lights, is one who is prepared to find her values in the US Constitution (rather than one who is not).

From the outside there’s really something weird and morbid about the way Americans handle really basic questions of the rights they ought to have. Instead of sitting down together (or having legislators do it for them) to decide whether basic rights to freedom of speech (for example) entail unlimited rights to view hardcore porn (for example). Or whether a right to privacy entails a right to abortion etc etc. Matters on which adults in a democracy can reasonably disagree, you do … what?

You get a bunch of political appointees (of varying eminence and none) to wrangle over the wording of some 18th century documents. Since those documents (unsurprisingly) don’t actually say anything directly about hardcore porn, abortion, gay marriage, medical marijuana, minimum wage etc etc there’s room for disagreement about what, if anything, they imply. So the pressure is on to pick a bunch of people (for life!) who will decide things your preferred way.

And then there are the jobs for the “legal scholars” to provide window dressing and ideological cover for this side or that.

OK, so I’m just channelling Jeremy Waldron here, but this really isn’t a sensible way to sort these things out.

9

Brett 11.01.05 at 12:36 pm

Activism is a bit of a nonsense word. I don’t know Zywicki’s views, but I doubt that he wants judges who are more deferential toward congress on principle. In Scalia’s case, the deference runs along well-worn lines: restrictions on obscenity, public expressions of religion, support for private religious schools, attempts to criminalize homosexual sex and prohibit anti-discrimination ordinances favoring gays and lesbians, restrictions on abortion, to name the first that come to mind.

The structural provisions of the constitution require a different approach for folks like Scalia, apparently. And there is a genuine, live question of the limits on congressional commerce power and the role of the Supreme Court in enforcing it.

If you look at the machine gun case, for example, Alito casts his arguments as a straightforward application of Lopez, the case in which the Supreme Court ruled that the guns-free school zones statute oversteps congressional commerce power, and recommends precisely what the Court recommended in Lopez: add a jurisdictional hook linking the person or the gun to interstate commerce. That’s not hard, and it’s precisely what Congress did with the school zones.

You can make the argument that the Supreme Court should leave enforcement of the outer boundaries of the commerce clause to the political process. That’s my view, I think. But conservatives have a point if they call such a reading “activist,” to the extent that it effectively withdraws judicial attention from an important limitation on congressional power. Many jurists from the early part of the last century would have agreed and called that reading activist (or activist-analogue). You don’t move forward in the debate by focusing on deference or non-deference, activism or non-activism, as such, though.

10

Uncle Kvetch 11.01.05 at 12:42 pm

Oh go on, tell me why i’m being too pessimistic and that the aggressive massed hordes of the Democrats will put a stop to it…..

You won’t hear it from me, Brendan.

As of yesterday morning, the hubby and I are discussing “The Canadian Option” with a renewed enthusiasm.

11

kharris 11.01.05 at 12:43 pm

As is often the case when we aren’t talking numbers, we are talking definition. One side of this discussion wants “activist” to mean siding with the Federal government against the states. The same side asserts that there are “clear constitutional precepts” being ignored. The original NYT piece offers another definition of actiivism – how many votes to overturn law? The definition in the NYT article seems to have grown out of the data (but who can tell?). “Activism” as siding with the United States against the individual states carries a bigger subjective load, when it requires a conclusion about which level of government the Constitution favors in the particular instance. Same with the assertion that some constitutional precept is “clear”. Whether the Constitution is clear on some point or other is part of the argument, and cannot be settle merely by assertion.

We are still very much in the “my side is best” kind of discussion here, rather than the “I wonder who is right” kind.

12

Sebastian Holsclaw 11.01.05 at 12:58 pm

You get a bunch of political appointees (of varying eminence and none) to wrangle over the wording of some 18th century documents. Since those documents (unsurprisingly) don’t actually say anything directly about hardcore porn, abortion, gay marriage, medical marijuana, minimum wage etc etc there’s room for disagreement about what, if anything, they imply. So the pressure is on to pick a bunch of people (for life!) who will decide things your preferred way.

And then there are the jobs for the “legal scholars” to provide window dressing and ideological cover for this side or that.

OK, so I’m just channelling Jeremy Waldron here, but this really isn’t a sensible way to sort these things out.

Of course that isn’t sensible. But that isn’t the conservative position on issues where the Constitution is silent. If it is silent and you think there is an important right that should be elevated to Constitutional protection, you should have an amendment. Otherwise deal with the legislature.

The Constitution has nothing to say on the minimum wage. Congress is free to act, just like in most countries.

The Constitution has very little to say on medical marijuana except that Congress can’t act on things that don’t have to do with defence or interstate commerce. Congress is free to act so long as it acts within the commerce clause.

The Constitution says nothing about abortion. States are free to act to protect unborn children if they choose. France and Germany both have more restrictive abortion laws than any state in the US so it isn’t as if the US is ridiculously restrictive.

If you want to elevate a new-to-be-recognized right to Constitutional level, use the amendment process. That is what it is there for.

(I argue that the 9th amendment protects historically recognized rights not newly recognized rights, but that is a different argument.)

13

abb1 11.01.05 at 1:00 pm

We are still very much in the “my side is best” kind of discussion here, rather than the “I wonder who is right” kind.

I thought this was a kind of discussion of hypocrisy on the part of ‘anti-elitist’ pseudo-conservatives…

14

Shelby 11.01.05 at 1:10 pm

Chris Bertram:
Instead of sitting down together (or having legislators do it for them) to decide whether basic rights to freedom of speech (for example) entail unlimited rights to view hardcore porn (for example). Or whether a right to privacy entails a right to abortion etc etc. Matters on which adults in a democracy can reasonably disagree, you do … what?

Generally we let the legislature deal with it. In some cases, there’s a struggle over who is authorized to address the issue — e.g. abortion (though there’s a remarkable lack of consistency; e.g. conservatives who say it’s not a legitimate federal issue but still try to pass federal restrictions). How do you believe Europe or Australia handle these issues? Last time I looked the unelected European courts were issuing all kinds of “human rights” rulings that are binding on the legislatures, and the people. How does that differ?

kharris:
As is often the case when we aren’t talking numbers, we are talking definition.

Essentially. Conservatives have bitched for years about “activist” judges, by which they meant judges who rule based on rights not enumerated in the Constitution or legislative acts. In the past year I’ve seen many liberals start complaining about “activist” judges who strike down legislative acts based on the Constitution. They then accuse conservatives of being inconsistent, rather than recognize they’re using an inconsistent definition (of a term that was never very precise anyway).

15

Mona 11.01.05 at 1:15 pm

Chris Bertram points out my lack of clarity: Mona’s comments are rather puzzling. On the one hand she rejects Henry’s criticism of Zywicki as “judgifying I don’t like” as merely “superficially valid”, on the other she makes it perfectly clear that a good judge, by her lights, is one who is prepared to find her values in the US Constitution (rather than one who is not).

What I should have made explicit, is that criticizing Zywicki for favoring justices who do not defer to “democratically elected representatives” makes superficial sense, given the percentages Henry cites. But not if one then looks at the whole panoply of such democratic bodies in the U.S., which include 50 state legislatures. When Congress legislates in an area that it is not warranted to enter, it often invalidates a state law(s) covering the same field, or at least occupies the field and thereby forecloses the states from acting (less rigorously).

So, merely by declining to be deferential to Congress, a justice is not necessarily lacking in deference to democratically enacted laws per se. S/he may, actually, be being both more faithful to the Constitution (notions such as enumerated powers and a reading of the Commerce Clause that doesn’t translate into congressional carte blanche) as well as deferential to the many legislative bodies other than Congress.

16

SamChevre 11.01.05 at 1:18 pm

Another key point is alluded to above, but not mentioned; Congress does not equal legislatures. Most of the Warren Court’s activism was overturning state laws (not Federal ones) and involving the Federal courts in state issues.

The overturning Federal laws = activism idea/metric is fundamentally nonsensical.

17

y81 11.01.05 at 1:20 pm

I think that Gewirtz’s and Golder’s numbers would be a more meaningful measure of “activism” if they included decisions invalidating state laws. I am not sure what the results would be, although my basic cynicism tells me that if an expanded analysis supported the authors’ conclusion, the authors would have published the expanded analysis.

18

Steven Crane 11.01.05 at 1:23 pm

yet more evidence (if it was needed) that most libertarians in the States will compromise their deepest beliefs (small government, social liberalism) and throw their weight behind a big government extremist Christian conservative if they think it will lead to more power and influence for them and theirs.

I’m not sure Glenn Reynolds is the best example of a “libertarian”. I know the Hit&Run crowd, at least, isn’t too hot on Alito.

19

Orin S. Kerr 11.01.05 at 1:38 pm

That Golder and Gewirtz study was widely criticized when it was released. It makes the rather curious decision to focus only on federal law, and to exclude decisions striking down state laws. To simplify a complex dynamic, conservative legal thought ends up being more skeptical of federal laws, and liberal legal thought ends up being more skeptical of state laws. By focusing on cases involving federal statutes, and excluding state laws from the study, Golder and Gewirtz are in essence stacking the deck. They’re picking a subset of cases in which conservative are most likely to vote to strike down statutes, and then imagining that this is representative of the whole.

For what it’s worth, I once looked at an entire Supreme Court term and tallied the votes on the left and right to strike down legislation in the cases with clear ideological stakes. The “left”” Justices voted to strike down statutes about twice as often as the “right” Justices. My article that includes this finding is available here:

http://www.legalaffairs.org/issues/March-April-2003/feature_marapr03_kerr.msp

20

Jacob T. Levy 11.01.05 at 1:41 pm

The “activism=striking down Congressional statutes” is indeed cooking the books. State statutes that are struck down are almost always either morals legislation or invalid criminal procedures; that is, they’re struck down from the left. Congressional statutes that are struck down (not many) are often commerce clause excesses or intrusions on the alleged sovereign immunity of the states; that is, they’re struck down from the right. Regardless of the merits (I like most of these “activist” decisions at both levels except the sovereign immunity ones), it’s illegitimate to pick one of the two levels and pretend that that gives some procedural, politics-neutral definition of “activism.”

21

Steve LaBonne 11.01.05 at 1:48 pm

CONSERVATIVE GLOSSARY
Activist: any judge whose decisions I don’t like
Constitutional rights: rights that allow big corporations to get richer without interference from government regulations
Deference: something due only to Republican legislatures
Novel rights not found in Constitution: any right to be free from the attentions of meddlesome theocrats, overzealous cops, or national-securicrats

22

Christopher M 11.01.05 at 2:10 pm

Zywicki’s exultation of “the common-sense of citizens as reflected through democratically-elected legislatures,” is rather amusing considering the disdain he has expressed for, well, democratically elected legislatures:

http://volokh.com/posts/1128597322.shtml

23

jet 11.01.05 at 2:38 pm

the common-sense of citizens as reflected through democratically-elected legislatures,

The authors of the US Constitution were quite afraid of this “common-sense” and thus the US Bill of Rights which helps protect the minority from the majority’s “common-sense”. Striking down federal legislation on Constitutional grounds is about as “conservative” as you get as this upholds the 9th and 10th amendments diluting power(curbing corruption) by leaving jurisdiction to the state legislatures. Federal powers were meant to be grown slowly via amendments not magically via the rubber-band clause.

24

Mike Otsuka 11.01.05 at 2:44 pm

Chris,

You write that there’s “really something weird” about the American practice of judicial review. It is, unfortunately, an all-too-familiar phenomenon:

Constitution = Sacred Text

Justices = Robed Clergy

Supreme Court = their Temple

Conservative jurisprudence = Religious fundamentalist doctrine according to which the robed clerics are to glean the literal meaning of the Sacred Text by channelling the intentions of its long-dead authors, which, surprisingly for a bunch of 18th century deist Enlightenment thinkers, conform to all of the late 20th and early 21st century theocratic impulses of the Reverend Jerry Falwell and Dr James Dobson.

25

Will Baude 11.01.05 at 2:59 pm

Would it be silly to point out that the statistics for the federal legislature– which are what you print above– are not the same as those for state legislatures? From the plural, I presume Zywicki was referring to the latter.

26

asg 11.01.05 at 3:01 pm

It is refreshing to see, in the wake of the destruction of the original post’s argument, that posts such as #21 and #25 are always ready in the back pocket for when reason has failed and red meat is needed.

27

asg 11.01.05 at 3:02 pm

I meant #21 and #24, of course.

28

Steve LaBonne 11.01.05 at 3:15 pm

GLOSSARY CONTINUED
Destruction (of an argument): recognition that the argument is inconvenient with respect to conservative ideology

29

Chris Bertram 11.01.05 at 3:48 pm

Last time I looked the unelected European courts were issuing all kinds of “human rights” rulings that are binding on the legislatures, and the people. How does that differ?

Not as simple as that, I’m afraid. The ECHR can certainly declare that some bit of legislation is contrary to the convention, but that doesn’t invalidate it as such. The legislature needs to amend the law to conform, as I understand it. Though the picture may vary from country to country.

30

Matt 11.01.05 at 4:17 pm

Chris,
I’ve not read Waldron’s full book on judicial review (just some articles) but does he also oppose the judical review of, say, the European Court of Justice or the German constitutional court? There are obviously some serious pathologies in the American system, and you’ve pointed some of them out, but I don’t see what’s wrong w/ judical review as such, especially in a federal system like the US, or more and more the EU (The UK is now subject to it, too, I’d guess, under the ECJ and especially after the passing of the Human Rights Act.) Are you (and Waldron?) opposed to the idea as such or just the pathologies of the US system? The later I can understand, but the former not as much.

31

Chris Bertram 11.01.05 at 4:58 pm

Speaking for myself, and definitely not for Waldron, I think I think something like this …

It all depends what you mean by judicial review and it all depends on the concrete circumstances of the society in question. In the ideal case where citizens are committed to the sorts of political liberties that fall under something like Rawls’s first principle but perhaps disagree about the limit cases (free speech: porn and the libel laws) then I’d favour leaving the legislature to settle as much of the detail as possible.

In our more imperfect circumstances, there may be a greater role, but the danger of using judges for deciding such questions include (a) that it saps the democratic arena of vitality (b) that it allows politicians to granstand, since their irresponsibly populist proposals will be ruled out by someone else (whom they can then rail at) and (c) that, in a _class society_ (see thread immediately below) the sort of people who end up as judges are unlikely to be impartial guardians of the public good. I could go on, obviously.

Also, there are varieties of judicial review. The US system is particulary extensive.

32

Shelby 11.01.05 at 5:01 pm

Chris Bertram:
The ECHR can certainly declare that some bit of legislation is contrary to the convention, but that doesn’t invalidate it as such. The legislature needs to amend the law to conform, as I understand it.

My International Law class was in 1998, but as I recall, at that time the ECHR’s rulings were “binding” in that the relevant legislature HAD to implement the ruling. Moreover, both the European international courts and the national high courts were making similar rulings based on a variety of international treaties, forcing local legislatures to grant new rights, e.g. paid leave in circumstances not foreseen in local law.

I find it difficult to distinguish the practical results from the conservative definition of “judicial activism,” or from, as you say [in No. 8 above], “get[ting] a bunch of political appointees (of varying eminence and none) … to wrangle over the wording” of documents that leave ample “room for disagreement about what, if anything, they imply.” So “the pressure is on to pick a bunch of people (for life!) who will decide things your preferred way.”

33

fifi 11.01.05 at 5:09 pm

Re: right wing judicial activism, an article by Cass Sustein in Harper’s Sept/2005, _Fighting for the Supreme Court: how right wing judges are transforming the Constitution_, makes the case “it is difficult to escape the conclusion that it is precisely because their ideological goals are politically unachievable that they have turned to the courts.” He, too, makes a point of the record of aggression against legislatures by the Rehnquist court, easily the most radical court in American history by the standards of judicial restraint. Who knows, maybe if it weren’t for O’Connor’s resistance, it’d be 1920 all over again.

34

Chris Bertram 11.01.05 at 5:12 pm

Well I’m no lawyer, and my points weren’t motivated by a desire to say that Europe does things better. To the extent to which the picture is as you say it is, I’m as much of a sceptic for Europe as for the US.

A glance a the ECHR page at Wikepedia (and I know the ECHR is only part of the picture) reveals this

bq. It is the role of the Committee of Ministers to supervise the execution of court judgements, though they have no formal means of forcing member countries to comply. However, the ultimate sanction of non-compliance is expulsion from the Council of Europe and thus becoming a ‘pariah’ state within Europe. Furthermore, the European Union takes a keen interest in the Convention and Court (and its jurisprudence) so would not look kindly upon any EU member state that did not fulfill its Convention obligations.

35

Matt 11.01.05 at 5:30 pm

My understanding is that now all EU members have passed legislation making decisions of the ECHR directly applicable via domestic law. In the UK I believe this was done via the Human Rights Act, which was the first case moving away from unlimited parlimentary supremecy (surely a crazy postions as much as any!) In a fairly famous case (before the Human Rights Act) the court ruled against the domestic legislation of the UK that said homosexuals could not serve in the military. This was put in to effect by the UK afterwards. This sort of thing seems like a pretty reasonable move to me.

36

Chris Bertram 11.01.05 at 5:54 pm

Not so. The HRA incorporates the Convention into domestic law, it does not make “decisions of the ECHR directly applicable via domestic law.” What is more, the judges cannot override an Act of Parliament, rather they issue a declaration of incompatibility. Again, “a trip to the Wikipedia”:http://en.wikipedia.org/wiki/Human_Rights_Act_1998 would have made this clear.

37

Mona 11.01.05 at 5:54 pm

(a) the state laws at issue are frequently substantively closer to conservative preferences than are federal laws, and (b) that a strong emphasis on states’ rights makes various forms of economic and political regulation much less feasible in an interconnected economy of 50 states.

This is all true. But not invariably so. To my mind, the test of a true “originalist” is one who would vote to allow CA to permit med marijuana and OR to permit physician-assisted suicide. I don’t like it that liberal drug warriors are happy to have the federal government legislate in unenumerated areas by invoking the ever-generous Commerce Clause, but they are not hypocrites since that is their approach on a myriad of issues. When supposed conservative, originalists drug warriors do it, well, my cynicism grows.

Thomas is close to being the most pure, in my book. For example, from his dissent in _Gonzalez v. Raich_:

On this traditional understanding of “commerce,” the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market–intrastate or interstate, noncommercial or commercial–for marijuana. Respondents are correct that the CSA exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial….The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the propriety of “displac[ing] state regulation in areas of traditional state concern,” id., at 583 (Kennedy, J., concurring). The majority’s rush to embrace federal power “is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 502 (2001) (Stevens, J., concurring in judgment). Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.

Whole glorious thing here: http://straylight.law.cornell.edu/supct/html/03-1454.ZD1.html

I’d prefer more like him, and would have chosen Janice Rogers Brown over Alito. Scalia joined the liberals in _Raich_ (but Rehnquist didn’t) because their nanny-statism was in that instance in confluence; Rogers Brown would have been on the same page as Thomas.

And, btw, an “interconnected economy” does not entail that a federal body dictate how many yards away from a school a person must keep firearms, or what kind of substances one ought take into his/her body. I cotton to the idea of the states being “laboratories of democracy,” where different statutory schemes can be tried, and we can see what works best. And, if I don’t like the laws in AL, I can move to NY or CA, and vice versa. Obviously, federal law cannot be circumvented short of leaving the country.

38

Christopher M 11.01.05 at 6:02 pm

Larry Solum has a good little summary of the problem of reconciling democracy with judicial review, known in legal-academic circles as the “counter-majoritarian difficulty” since Alexander Bickel’s use of that phrase.

My own view, which I believe is similar to Chris Bertram’s although I doubt he would put it this way, is that when judicial review clashes with “democratic legitimacy,” well then, so much the worse for democratic legitimacy. We live in a society where (1) the majority would like to do some pretty bad things, and (2) our democratic processes/structures are such that legislatures are likely to do even worse things favored by politically powerful minorities. Fortunately we have this institution called “judicial review” lying around, and we may as well use it to make things somewhat better. Sure, it would be nice if we didn’t need it, but if we’re hypothesizing false cases, we may as well just say that it would also be nice if we didn’t need political parties and legislatures because everyone already agreed on what rules to follow.

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trotsky 11.01.05 at 6:02 pm

I haven’t yet read the comments, so forgive me if this skeet has already been fired up and shot down, but what substantive reasons are there to expect more conservative policy preferences from state legislatures over the federal Congress. Perhaps my perspective is skewed, living in California ….

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Matt 11.01.05 at 6:09 pm

Doesn’t the UK have a binding treaty obligation to make their laws conform to rulings w/ the ECHR now? Of course they might not do this, or might refuse to do so, but it does seem that they have this obligation. (This comes from the British lawyer sitting near me in my International Courts class- I must admit that the Wikipidia entry doesn’t seem to address this, and is obviously incomplete in that sense.) In general the international lawyers I’ve spoken to have all interpreted the Human Rights Act as essentially doing away w/ parlimentary supremecy even though it’s maintained as a fiction. Maybe they are wrong, but I’ll take them over Wikipedia. I’m not an expert on this, of course, and don’t claim to be. But, all the people I’ve spoken to who ought to know about it have had this interpritation.)

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Mona 11.01.05 at 6:46 pm

christopher m writes: We live in a society where (1) the majority would like to do some pretty bad things, and (2) our democratic processes/structures are such that legislatures are likely to do even worse things favored by politically powerful minorities. Fortunately we have this institution called “judicial review” lying around, and we may as well use it to make things somewhat better.

In that case, nine, life-tenured lawyers become our ultimate POLITICAL leaders. No thanks; I’ll take my chances with folks I can try to vote out.

Judicial review is great — I favor it. But only for cases arises under the laws of the United States and the actual contents of the Constitution as most reasonable people, making good faith efforts, would find that contents to be. (Which exludes spinning the Commerce Clause so that it means Congress can force all the states to do or forbear from everything you think they should.)

The Bill of Rights is, as Bickel noted, counter-majoritarian. So are dictatorships. The dictatorship of the BOR is a damned fine idea; the dictatorship of whatever nine folks in black robes think is good policy, is not.

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james 11.01.05 at 7:09 pm

There is a general misunderstanding of how Americans view the Constitution and the Supreme Court. The constitution is viewed as the last line of defense for an individual citizen’s rights. It was designed so that the legislative branch could not make laws which abridge those rights. This is why the US gives a middle finger to any international treaty that violates the Constitution (example UN Chemical Weapons Ban Treaty). It is also why Americans are insulted whenever someone suggests the Constitution be modified to fit an international treaty.

The Supreme Court was designed to be a check on the other two branches of US governance. Once the court moved beyond the actual text / intent/ limitations of the US Constitution, it was able to expand its own domain. This has resulted in the court becoming an alternate avenue for legislation. Causes that where unable to gather popular support in the legislature would now try to do an end run via the Supreme Court. They only needed to convince 5 out of 9 Supreme Court Judges of the ‘rightness’ of their cause. This is why nominations are so contentious.

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jet 11.01.05 at 7:10 pm

Mona for president!

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jayann 11.01.05 at 7:50 pm

Doesn’t the UK have a binding treaty obligation to make their laws conform to rulings w/ the ECHR now?

That’s unclear. If the EU Constitution came into effect, then there would be no doubt that our laws had to conform. So far, the Government’s simply given in.

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Mike Otsuka 11.01.05 at 8:00 pm

Matt,

Regarding the Human Rights Act and Parliamentary supremacy, I think the following quotation from another Wikipedia entry entitled ‘Parliamentary Sovereignty’ gets it right:

“[I]n each case [including the European Convention and its incorporation into UK law by the Human Rights Act], the laws have been structured so that there is no theoretical erosion of Parliamentary supremacy. … The European and British Courts have the authority to declare incompatibility or to annul a law only because of an Act of Parliament, the European Communities Act 1972 which can be repealed by Parliament.”

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Tom Hurka 11.01.05 at 8:08 pm

Judicial review? Canada wouldn’t have gay marriage without it. (Parliament would never have gone that far that fast.) The courts weren’t interpreting an 18th century document; the Charter of Rights and Freedoms dates from 1980. But it never mentions sexual orientation. It says that people have the right to equal protection of the law “without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The courts took the “in particular” to allow and even invite additional prohibited grounds of discrimination, and made sexual orientation one of them, because (I believe) they thought any theoretical justification for the listed grounds would extend to it. Isn’t that a good thing? And would it really have been better to wait for Parliament? (I take it, as Waldron also does, that a crucial question about judicial review vs. parliamentary sovereignty is which will in fact produce the substantively best results. The answer to that may vary from country to country, but I would say that in Canada, on balance, it has favoured judicial review.)

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PLN 11.01.05 at 9:39 pm

Re: Mona’s comment …

Judicial review is great—I favor it. But only for cases arises under the laws of the United States and the actual contents of the Constitution as most reasonable people, making good faith efforts, would find that contents to be. (Which exludes spinning the Commerce Clause so that it means Congress can force all the states to do or forbear from everything you think they should.)

My sense of the Waldron position is that it is motivated by a worry about, essentially, why the Constitution is so special. Why privilege the long-dead authors of a particular document? Yes, we can amend it, but that requires supermajoritarian procedures; what gives the status quo such an advantage? As has been mentioned, Europe is becoming increasing judicialized; Waldron recognizes he’s a voice in the wilderness here. But if your starting point is “reasonable people can disagree about rights” it’s not clear why you’d privilege a particular text (which embodies one controversial view about rights), unless you favor that particular view more than you favor respecting democratic disagreement (probably true for most libertarians) or you care a great deal for Tom Paine-style constitutional legalism.

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Mona 11.01.05 at 11:02 pm

pln writes: But if your starting point is “reasonable people can disagree about rights” it’s not clear why you’d privilege a particular text (which embodies one controversial view about rights), unless you favor that particular view more than you favor respecting democratic disagreement (probably true for most libertarians) or you care a great deal for Tom Paine-style constitutional legalism.

I’d “privilege” the Constitution because it is law, and I do not find its understanding of rights controversial, at all. Judicial review is not meant to be a vehicle for five of nine justices deciding whether a law is good or wise. But any who disagree will have to make the case to the nation that we wish for our highest Court to have plenary, unconstrained veto power over any law at any level. I don’t think they can or should get that, but they can try.

A statute becomes the law of the dead or the no-longer-elected very rapidly. Yet, we give statutes the force of law until the living in our legislatures repeal or amend it. We do not decide that nine, unelected people with a life-time tenure will decide it all, anew, every day.

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Sebastian Holsclaw 11.01.05 at 11:10 pm

“Why privilege the long-dead authors of a particular document? Yes, we can amend it, but that requires supermajoritarian procedures; what gives the status quo such an advantage?”

That is a fine argument for pure majoritarian democracy, but a lousy one for trusting judges to be the ones to update the Constitution unless you are going to return to some sort of divine or natural law concept which they are supposed to be ‘discovering’.

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PLN 11.02.05 at 12:20 am

Right, right, to both SH and Mona–it’s meant to be an argument against judicial review, period. I didn’t mean to be saying it had direct application to -how to do- judicial review when you’ve got it (although -perhaps- it follows that if you think judicial review immoral, but you somehow get on the SC, you should just refuse to strike down any statute, ever…)

Really, none of this has much to do with the original post, but darnit, Chris B. started channeling Waldron and it was contagious.

Although I suppose one -could- say that the connection is like so:

“Activism is judges overturning statutes!”
“No, that’s silly. When the Constitution says Not-X, and a legislature says X, it is not at all activist to overturn X.”
“Ah. But Mr. Judge, the legislature is full of democratically-elected representatives all sworn to uphold the Constitution. Are you sure the Constitution says Not-X? They don’t agree with you, and they seem like conscientious fellows, and perhaps they were elected on behalf of citizens who also disagree with you.”

So I suppose one -could- make an argument like that on behalf of the claim that “restraint” really does imply not overturning statutes. But I don’t know how much stock I’d put in such an argument.

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PLN 11.02.05 at 12:22 am

Dangit, the struckout lines were supposed to be emphasized, not struckout. Please pretend it represents emphasis. I am dumb.

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Chris Bertram 11.02.05 at 2:44 am

I take it, as Waldron also does, that a crucial question about judicial review vs. parliamentary sovereignty is which will in fact produce the substantively best results.

“a” crucial question, certainly. But not the only question. Marginally worse results without the loss of citizen participation and engagement might be better overall if you value those things strongly enough. Waldron certainly rejects a pure consequentialist justification of political institutiosn, and, imho, he’s right so to do.

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Chris Bertram 11.02.05 at 2:58 am

it’s not clear why you’d privilege a particular text (which embodies one controversial view about rights)

It isn’t so much a question of it embodying _controversial_ views as it is one of it being vague where we need determinacy. So any list of fundamental rights is going to incorporate, for example, some kind of free speech provision. But that isn’t going to settle the question of whether harcore porn is speech or whether campaign contributions are speech. In a system with strong judicial review, the task of deciding that is handed over to the judges, and part of the political battle switches to choosing them.

As for Tom Hurka’s “better results” criterion – I’m unconvinced. We have sharp disagreement among citizens about which results would be better and we need mechanisms for resolving that. Your post presupposes a right answer on those questions. The trouble is, that once a bunch of conservative judges in a majority on the court they’ll start churning out decisions that by your lights are the wrong ones.

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Sebastian Holsclaw 11.02.05 at 3:10 am

“The trouble is, that once a bunch of conservative judges in a majority on the court they’ll start churning out decisions that by your lights are the wrong ones.”

But if you believe that law is whatever 5 judges say it is, you don’t have much of a basis to complain. Which brings us back to what the Constitution means. I suspect that those out of power recognize the value of discernable textualism more easily than those in power.

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abb1 11.02.05 at 3:33 am

Judicial review is not meant to be a vehicle for five of nine justices deciding whether a law is good or wise. But any who disagree will have to make the case to the nation that we wish for our highest Court to have plenary, unconstrained veto power over any law at any level.

I don’t know if it’s meant to be, but of course as a matter of fact it is, otherwise why would we even care who these judges are? It certainly isn’t exactly unconstrained, but it’s often hard to see what the constrains are.

Come to think of it, the constitution stipulates only one constrain – “good behavior”, so there you go, apparently it was, indeed, meant to be a vehicle for justices to decide whether a law is good or wise, as long as they manage to behave themselves.

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Chris Bertram 11.02.05 at 6:05 am

Which brings us back to what the Constitution means. I suspect that those out of power recognize the value of discernable textualism more easily than those in power.

Not much of an answer, I’m afraid, Sebastian. Since the Constitution can’t interpret itself, someone has to decide, for example, what counts as “speech”. As I recall harcore porn and campaign contrubutions aren’t explicitly mentioned in the Consititution. But that hardly settles the question of whether they are protected (or not) by the First Amendment.

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Barry 11.02.05 at 6:19 am

“But if you believe that law is whatever 5 judges say it is, you don’t have much of a basis to complain. Which brings us back to what the Constitution means. I suspect that those out of power recognize the value of discernable textualism more easily than those in power.”

Posted by Sebastian Holsclaw

Since the GOP makes this claim, and the GOP is *in* power, I suspect that your suspicion is wrong.

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Brett Bellmore 11.02.05 at 7:14 am

The left just hasn’t been out of power long enough for it to sink in; At some level, when they envision limits on governmental power, they still automatically envision those limits hobbling THEM, instead of the right. So they reflexively support Republicans having more power to abuse, so long as it’s a power they can envision themselves having any use for at all.

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soru 11.02.05 at 9:24 am

Dangit, the struckout lines were supposed to be emphasized, not struckout. Please pretend it represents emphasis.

Ah, a plea for an ‘original intent’ interpretation.

soru

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Sebastian Holsclaw 11.02.05 at 9:54 am

“Since the GOP makes this claim, and the GOP is in power, I suspect that your suspicion is wrong.”

I think that for both the Democrats and the Republicans, their current position of power has not persisted long enough to make a difference in the rhetoric. That is why for those of us with a principled belief in textualism the next few years are so important. We have to hope to catch enough Democrats as the idea phases in for them before too many Republicans phase out on the idea.

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Steve LaBonne 11.02.05 at 10:24 am

How do you run a 21st century country with an 18th century Constitution if you insist on trying (whether you can ever really succeed is yet another question) to interpret that document exactly as its 18th-century authors would have done? The defenses of “texutualism” I’ve seen cam best be described as sophistical, and the actual practices of those who invoke it are worse still, since in actuality they simply follow the well-known tendency of judges to decide cases according to their political inclinations. (Amazing how deists like Madison somehow come out sounding like conservative Catholics or Southern Baptists in the process of justifying right-wing decisions via “textualism”.) When one sees “textualism” or “original intent” one should read “smokescreen for conservative politics”.

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jet 11.02.05 at 10:35 am

How do you run a 21st century country with an 18th century Constitution…

The Constitution has been updated 17 times since its ratification, with the latest update in 1992. The document was designed with the ability to change, but that change was not supposed to come from new interpretations but from actual changes to the document via amendments. I’d agree that what we have today is some sort of broken compromise prone to abuse and ripe for corruption.

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Brett Bellmore 11.02.05 at 12:28 pm

Jet is exactly right: Sophistical interpretation isn’t necessary to keep the Constitution up to date. It’s merely necessary to impose changes which the states would refuse to ratify, if they were given any choice in the matter.

The safe cracker doesn’t use explosives because there’s NO way to open the safe, but only because there’s no way for HIM to open it.

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abb1 11.02.05 at 12:36 pm

…change was not supposed to come from new interpretations but from actual changes to the document via amendments…

Prove it.

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Mike Otsuka 11.02.05 at 12:52 pm

Jet and Brett,

But a simple majority of the legislatures of 13 states, OR 1/3 plus one of the House of Representatives, OR 1/3 plus one of the Senate, can thwart ratification of an amendment to the Constitution even if this amendment is supported by a clear majority of the living, thereby leaving unaltered a Constitution most of which was ratified over 200 years ago by assemblies of elites of white, male property owners that excluded women and blacks.

Not a defensible state of affairs if you’re a small-“d” democrat.

(Which is not to say that I think activist judicial review is defensible. I don’t.)

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abb1 11.02.05 at 1:01 pm

One of the fellas who devised the scheme had this to say:
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

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Mike Otsuka 11.02.05 at 1:05 pm

PS: Americans set up a more democratic system than the British system from which they rebelled in the 18th century. But the British system of government is now a good deal more democratic than the American system. The entrenchment of a difficult-to-amend Constitution has a lot to do with this reversal.

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catfish 11.02.05 at 1:20 pm

I don’t see how liberals could possibly find anything of value in the version of textualism avowed by today’s conservatives even after being out of power for many years. If textualists are to be believed:

–Individual rights could be severally limited by Congress or state legislatures. Homosexuals could be jailed, abortion and birth control banned, and free speech could be greatly restricted. Public schools could force children to pray. States would not have to provide lawyers for indigent defendents.

–Most economic, evironmental, and civil rights regulation would be unconstitutional–no EPA, no minimum wage, no overtime, no anti-child labor laws, landlords and small business owners could discriminate against racial or religious minorities, or refuse to hire women (they might get pregnant, you know). Restrictive covenants could be used to keep certain races, religions, or sexual orientations out of certain neighborhoods.

In other words, liberals would lose every gain of the twentieth century with no hope of getting those gains back except by the process of ammending the constitution which is difficult to do, especially when opposed by interests with deep pockets like large corporations.

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jet 11.02.05 at 1:27 pm

abb1,
“Prove it.” I’ll just point you at the Constitution if you haven’t read it yet. Try reading the Article that comes after IV.

Catfish,
Maybe to some extent. But as long as we’re playing “what ifs” then we might also have a diverse set of state experiments with some states putting all the modern liberal ideals to the test and some states putting the classical liberal ideals to the test. Would be obvious to all which is better suited for them and what should be copied and what shouldn’t.

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Steve LaBonne 11.02.05 at 1:33 pm

jet, the amendments still have to be subsequently interpreted in order to be applied in actual cases, so that argument is merely an infinite regress.

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Steve LaBonne 11.02.05 at 1:41 pm

P.S. I don’t think that in any other field of scholarship anyone would try to pretend nowadays that a form of words, often vague because of poor drafting and/or political compromises (which by the way could mean there are at least as many “original intents” as hands involved in the drafting, often quite a substantial number), is somehow magically self-interpreting and in a way that is supposed to remain completely stable for centuries. Only in law is this kind of inherently unbelievable claim made with a straight face. It can safely be dismissed as a cowardly screen behind which to stow political preferences that would, if voiced openly, belie the phony pretence of objectivity whose maintenance is the motivation behind this canard.

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abb1 11.02.05 at 1:59 pm

Jet, I know that the constitution can be amended; that doesn’t mean, however, that it shouldn’t be interpreted and re-interpreted every decade or every day for that matter.

See, here’s how the process works: you pass the law, then I strike it down as unconstitutional based on my interpretation (or uphold it, depending on how I feel) and now your last-resort remedy is to pass an amendment. That’s all.

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jet 11.02.05 at 2:13 pm

I don’t think that in any other field of scholarship anyone would try to pretend nowadays that a form of words … is somehow magically self-interpreting and in a way that is supposed to remain completely stable for centuries.

You are absolutely right. We should give up on this whole language thing as it has obviously been a huge failure. Hah, to think that people write down ideas and expect others to know what they mean. Truly laughable.

Only in law is this kind of inherently unbelievable claim made with a straight face.

Yes, I’m sure Plato’s works are interpreted in a vastly different light now than when he wrote them. We all know his works were originally a sit-com about a hard luck Persian kid who’s mother sent him to live with his rich Uncle in Athens where he had many whacky adventures. Of course today it is interpreted to be about philosophy or some such boring drivel instead of the original, more humorous, intended matter.

It can safely be dismissed as a cowardly screen behind which to stow political preferences that would, if voiced openly, belie the phony pretence of objectivity whose maintenance is the motivation behind this canard.

Egads, we’ve been uncovered. Our cowardly screen to protect Liberty has been found out. Oh he of good faith is now a coward.

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Steve LaBonne 11.02.05 at 2:17 pm

jet, I’d like to introduce you to some philosophers and classicists if you think interpreting Plato is a straightforeward job… but then I don’t think you’re stating a serious intellectual position so why bother.

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jet 11.02.05 at 2:23 pm

abb1,
You are absolutely right. Why have things like precedents? Why have a foundation of law? Who needs things like that for society to thrive? You like the speed and ease with which social progress was made in Canada? How about with the wise masses change their opinions to a much more right wing leaning? How will you like the speed and ease in how they change things back?

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Shelby 11.02.05 at 2:24 pm

Henry:
Bush v. Gore which Epstein and Segal correctly describe as a “thinly veiled attempt on the part of the Court’s conservatives to put George W. Bush in the White House.”

Interestingly, they don’t describe it as a “thinly veiled attempt on the part of the Court’s liberals to put Al Gore in the White House.” That would be just as accurate.

mona:
To my mind, the test of a true “originalist” is one who would vote to allow CA to permit med marijuana and OR to permit physician-assisted suicide.

I thought it meant I was a libertarian. I’m willing to wear an originalist hat too.

james:
Once the court moved beyond the actual text / intent/ limitations of the US Constitution, it was able to expand its own domain.

What, we should overturn Marbury v. Madison? Talk about your super-duper precedents! It’s hard to see how the Court can actually do anything without that basis, though. Or did you have some other case or event in mind?

pln:
Why privilege the long-dead authors of a particular document? Yes, we can amend it, but that requires supermajoritarian procedures; what gives the status quo such an advantage?

Because those are the terms we agreed on as a nation. If we don’t like the terms we can change them. Yes, it’s a pain, but that’s designed in to make sure we really want the changes. The status quo’s advantage derives from the fact that so much since passage of the Constitution has been premised on its existence, and its terms.

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jet 11.02.05 at 2:28 pm

Steve LaBonne,
Blah blah blah, this is about interpreting the US Constitution. The 9th and 10th amendments are clear on what to do when the Constitution doesn’t cover the material or is too ambiguous on new situations. And if that doesn’t suit you, then Article V might.

And like I said before “..what we have today is some sort of broken compromise prone to abuse and ripe for corruption.”

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Sebastian Holsclaw 11.02.05 at 2:30 pm

“See, here’s how the process works: you pass the law, then I strike it down as unconstitutional based on my interpretation (or uphold it, depending on how I feel) and now your last-resort remedy is to pass an amendment. That’s all.”

Which you then get to immediately reinterpret? What makes you think that the court is empowered to make changes that can then only be overruled by the amendment process? It looks to me like the system was set up with judges trying to preserve the meaning of the Constitution until it gets duly changed by the amendment process. If we were trying to set up your system, we wouldn’t have bothered with a Constitution.

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Chris Bertram 11.02.05 at 2:30 pm

Because those are the terms we agreed on as a nation.

Well I’m a non-member of your nation, so I feel sort of embarrassed intruding on your private business. However, as Michael Otsuka pointed out earlier in the thread, most of the Constitution

was ratified over 200 years ago by assemblies of elites of white, male property owners that excluded women and blacks.

In the light of that it is hard to see where the “we agreed” is getting its normative force.

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Steve LaBonne 11.02.05 at 2:32 pm

Interestingly, they don’t describe it as a “thinly veiled attempt on the part of the Court’s liberals to put Al Gore in the White House.”

That might have something to do with the fact that that wasn’t in fact the “liberal” position- which was not let’s certify Gore as the winner, but let’s allow the recount to proceed so we might have a chance of finding out who actually won. But thanks for the museum-quality specimen of a conservative smokescreen “argument”.

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abb1 11.02.05 at 2:36 pm

Jet, it doesn’t matter what I like or don’t like; I’m trying to explain to you how the scheme is supposed to work: the constitution means anything the SCOTUS wants it to mean. The congress has one weapon against the SCOTUS: to pass an amendment. That’s all there is to it, whether I like it or not.

Thanks for protecting Liberty, btw.

Eh, on the second thought: thanks, but no thanks.

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Steve LaBonne 11.02.05 at 2:36 pm

No Sebastian, you have to INterpret it before you can even apply it. The words are not self-explanatory and the idea of “original intent” runs into all sorts of problems that your friendly neighborhood historian would be happy to explain to you, except you’re smart enough that I suspect they’re actually quite obvious to you.

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jet 11.02.05 at 2:41 pm

Steve Labonne,

but let’s allow the recount to proceed so we might have a chance of finding out who actually won. But thanks for the museum-quality specimen of a conservative smokescreen “argument”.

As part of your museum-quality specimen of a liberal smokescreen you left out a needed phrase. It should have read “but let’s allow the recount in Democrat selected counties to proceed so we might have a chance of finding out who actually won.”

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abb1 11.02.05 at 2:47 pm

It looks to me like the system was set up with judges trying to preserve the meaning of the Constitution until it gets duly changed by the amendment process.

Sebastian, you and I may have different opinions on the meaning of the constitution. We might disagree on what the second amendment means, for example, start yelling at each other, get in a fight and end up in a hospital.

Luckily for us our opinions on the subject don’t really matter: the SCOTUS owns the meaning of the constitution; whatever the SCOTUS says the meaning is – that is it. Moreover: tomorrow Justice Kennedy may have heartburn or mild diarrhea – he is in a bad mood – and the meaning changes.

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Steve LaBonne 11.02.05 at 2:50 pm

Then the proper remedy would have been to order a full recount. Which as we now know, would ironically have been likely to be better for Gore than the recount in selected counties. The conservatives were in a hurry to call a halt to the process for one reason- to get their guy safely in. Which is typical of “conservative”, “originalist” judges, who for example are all for Federalism… unless they’re not, as in the case of medical marijuana. Better honest legal realists, of whatever political stripe, than people who rule exactly the same way but hide behind a “philosophy” that an grade-school child could see through.

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catfish 11.02.05 at 3:30 pm

This country has tried the “states as laboratories of democracy” thing and it did not work. States trampled on individual rights. You honesting cannot argue that the states have been better at respecting individual rights than the federal government. The only possible exception is the right of industries to polute the air and water, hire child labor, or intimidate workers. In these instances, I will grant that the states have more often come down on the side of “liberty.”

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soru 11.02.05 at 4:07 pm

The congress has one weapon against the SCOTUS: to pass an amendment.

Which, of course, they interpret the meaning of.

At the end of the day, there is always the ‘a Presidential pardon to the person who brings me the head of Justice Derrida’ option.

soru

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Sebastian Holsclaw 11.02.05 at 4:08 pm

“No Sebastian, you have to INterpret it before you can even apply it. The words are not self-explanatory and the idea of “original intent” runs into all sorts of problems that your friendly neighborhood historian would be happy to explain to you, except you’re smart enough that I suspect they’re actually quite obvious to you.”

I interpret this paragraph to mean that you agree entirely with me and advocate a textualist reading of the Constitution. I’m wrong, but if I was a Supreme Court justice and your words were the Constitution, apparently I would be right. That is an awfully crappy methodology.

“In the light of that it is hard to see where the “we agreed” is getting its normative force.”

Chris, that’s fine, but your compatriots wouldn’t go along with that on say abortion or free speech. They want the Constitution to now and forever protect the things they like, and want to ignore the things (like the Second Amendment) that they don’t like. So you CAN argue for complete tyranny of 5 judges or unfettered majority rule. But normally, we don’t. And if you do, it might help the discussion to be rather more explicit about it.

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Steve LaBonne 11.02.05 at 4:27 pm

Sebastian, I intepret your post as saying “I, Sebastian, can only posture since I have no actual argument”. I feel quite certain that my interpretation is better founded than yours of my comment. ;)

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Steve LaBonne 11.02.05 at 4:36 pm

To be a bit more constructive, the words of a law or a Constitutional provision obvously constrain their interpretation but it is a fallacy to imagine that they do so in some automatic, self-evident way. The originalist claim reminds me of the logical positivists’ attempt to construct a sort of automatic sausage machine to grind a collection of observations up into a scientific theory. Science just doesn’t work that way, though neither is it unconstrained by reality- far from it, it’s just that the constraint doesn’t work in such a simple-minded, univocal way. There are folks around here who are professionals at interpreting texts and I’m sure they’d be happy to explain to you why things are not quite so simple there, either.

Moroever, as already noted repeatedly, there is little evidence that “originalist” judges actually apply their stated philosophy in any consistent way, and much evidence that they generally rule in the way you’d expect from their political leanings.

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Sebastian Holsclaw 11.02.05 at 6:02 pm

“Science just doesn’t work that way, though neither is it unconstrained by reality- far from it, it’s just that the constraint doesn’t work in such a simple-minded, univocal way.”

Fabulous. So in a non-textualist way, please explain the constraints.

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jet 11.02.05 at 6:13 pm

Steve LaBonne,

Then the proper remedy would have been to order a full recount. Which as we now know, would ironically have been likely to be better for Gore than the recount in selected counties.

Except that we don’t. Every recount that was taken after the Supreme Court ruling has showed Bush won. The problem was, and remains, the cherry picked counties in which to hold a recount, as we all learned whichever way a county was leaning was where new votes would be found.

…there is little evidence that “originalist” judges actually apply their stated philosophy in any consistent way.

Yeah, after Uncle Kvetch pointed out Scalia’s B.S. stance on “illegal” gay sex I realized this is pretty much true. There is no getting around it, Supreme Court Justices are just politicians in robes who don’t have to worry about re-election.

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Tulkinghorn 11.02.05 at 9:49 pm

I had a useful exercise back when I was a law student interning at a state AG office: helping a municipality draft a bylaw that would have restricted, to a limited extent, free speech.

Fitting the text within the SOTUS caselaw was not so complicated, but trying to write the text while keeping in mind all the possible angles of statutory interpretation was maddening. It is very difficult for an author to control the reading of his text.

What did my statute mean? I will know only if a judge interprets it, which may never happen.

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Shelby 11.03.05 at 12:28 am

Chris Bertram:
In the light of that it is hard to see where the “we agreed” is getting its normative force.

I’m personally drawn to Thomas Jefferson’s notion that we ought to draft a new Constitution every 30 years. However, we work with what we’ve got. When was the last time England got around to drafting a new Constitution to establish peoples’ rights and limitations on the government? And who exactly got to vote for it?

steve labonne:
That might have something to do with the fact that that wasn’t in fact the “liberal” position- which was not let’s certify Gore as the winner, but let’s allow the recount to proceed so we might have a chance of finding out who actually won. But thanks for the museum-quality specimen of a conservative smokescreen “argument”.

Umm, what country were you in in late 2000? Here in the US, liberals attempted to overturn the laws in place in Florida to reject the actual result: The election of George Bush — for whom I did NOT vote. Nonetheless, the bastard won fair and square. The Florida Supreme Court tried to change the rules mid-count, and got slapped down. Afterward there were multiple evaluations of the votes; out of about twenty methods, one (which was never advanced by any of the parties) showed a possible win for Al Gore. You lost; get over it.

abb1:
the constitution means anything the SCOTUS wants it to mean. The congress has one weapon against the SCOTUS: to pass an amendment.

Unless you count impeachment. But hey, nobody ever gets impeached, right? Plus the fact that unlike the President (who has the military) and the Congress (which has the money), the Court can enforce its decisions how, exactly? See Korematsu.

steve labonne again:
The words are not self-explanatory and the idea of “original intent” runs into all sorts of problems that your friendly neighborhood historian would be happy to explain to you

No more so than any other legal writing (and less so than most). Steve, do you know how to legally interpret a contract or a law? Give us some credibility here.

abb1 again:
Luckily for us our opinions on the subject don’t really matter: the SCOTUS owns the meaning of the constitution; whatever the SCOTUS says the meaning is – that is it.

Does the term “ex cathedra” mean anything to you? Because you seem to think the Supreme Court is God’s word on Earth. But even court is sometimes — gasp — wrong! The SCOTUS said slaves retain their enslaved character even in free states. It said separate but equal is consitutional. It said US citizens of Japanese descent may be locked up for years for no offense whatsoever. It was in fact wrong, and that is NOT the meaning of the Constitution!

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abb1 11.03.05 at 2:53 am

It was in fact wrong, and that is NOT the meaning of the Constitution!

It’s not now, but it was at the time – my point exactly.

Unless you count impeachment.

Correct. I think I did mention that ‘good behavior’ is their only constraint. I don’t think the voting record counts as evidence of ‘no-good behavior’, but you’re right – that’s subject to interpretation, like everything else.

…the Court can enforce its decisions how, exactly…

It can’t, of course. But that would mean breaking the rules and I’m only trying to describe what the rules are, as I understand them.

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Steve LaBonne 11.03.05 at 8:13 am

Tulkinghorn has relieved me of any necessity of replying further, by providing a real-world insight on the actual cash value of “original intent” fantasies.

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Sebastian Holsclaw 11.03.05 at 1:44 pm

“Tulkinghorn has relieved me of any necessity of replying further, by providing a real-world insight on the actual cash value of “original intent” fantasies.”

But he reinforces the idea that the words just don’t mean much of anything. Which leads rather uncomfortably into the “why bother with a country of laws at all” realm.

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Steve LaBonne 11.03.05 at 2:50 pm

There’s a big gap between “meaning of laws not necessarily obvious and requires interpretation” to “words dont mean much of anything so why bother with laws at all”. If the conflation of those positions is meant to be an argument, it’s obviously fallacious.

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Sebastian holsclaw 11.03.05 at 6:07 pm

“If the conflation of those positions is meant to be an argument, it’s obviously fallacious.”

It might be if anyone bothered to explain the proper method of interpretation. But so far as I can see only the textualist method has been explained here. Everyone else’s method has been left to the imagination.

By all means if you believe that non-textualist methods have limits, please explain the parameters.

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Steve LaBonne 11.04.05 at 8:29 am

On the contrary, the onus is on you to support your bizarre theory that texts don’t need to be interpreted, because they have a simple, univocal meaning available on their surface and deriving directly from the simple, univocal intent of their authors. Even when, as in the case of a law, the text may literally have hundreds of “authors”, who according to your ideas must somehow have magically synchronized their “intentions”. Have fun.

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Thomas 11.04.05 at 11:25 am

Steve, are you at all familiar with the conventional academic explications of textualism? Can you explain how textualism in statutory interpretation differs from originalism in constitutional interpretation?

I suspect you can’t, which is why it’s a bit embarassing for you to go on and on like this. Learn a bit about the theories you’re criticizing, before throwing out your half-digested thoughts on the matter. Hint: No one believes that texts interpret themselves, no proponent of textualism supports looking for authorial intent, textualism doesn’t require looking for intent, originalism in constitutional interpretation focuses on original meaning, not original intent,….

Shall I stop there, or should I keep going? I mean, I could get to the part where the criticisms you’ve made are shown to have more force against what I suppose your position must be than against the positions you believe (wrongly) that you’re attacking. (I say wrongly because it seems to me that if you can’t adequately describe what you’re criticizing, you can’t actually criticize it, at least in this arena.)

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abb1 11.04.05 at 12:18 pm

I think you’re wrong about originalism not focusing on intent; in any case: it’s certainly OK to criticize fundamentalism in general without studying specific theories. It’s a question of general aproach, not disagreement on details.

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Shelby 11.04.05 at 12:33 pm

abb1:

As far as I know, “fundamentalism” is not a conventional term for describing any form of legal analysis of a text. Am I missing something (a link would be helpful), or as you using it as some sort of catch-all category?

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Sebastian Holsclaw 11.04.05 at 12:47 pm

There is a “fundamentalist” theory of Constitutional interpretation?

It must not be very popular. I’ve never heard of it.

“On the contrary, the onus is on you to support your bizarre theory that texts don’t need to be interpreted, because they have a simple, univocal meaning available on their surface and deriving directly from the simple, univocal intent of their authors.”

Steve, “on the contrary” makes it seem like you are responding to me, but nothing you say after the comma has anything to do with me.

I advocate the textualist interpretive techniques that were used for 150 years, and are still regularly used in contract law. They aren’t mysterious and they certainly aren’t new. Of course texts need to be interpreted, the question is HOW ought they be interpreted? Which is to say: what method is to be used. Textualism is about using the text, limiting yourself to things addressed in the text, reading the text with usages that were in use at the time, not engaging in things that are against the rest of the text, etc. It has limits that are mostly understandable.

The free-form techniques of non-textualists are not well described (I suspect because they don’t really have limits). You insist that they do, so I ask (again) for you to point out some limits. Limits that might actually restrict the free-ranging opinions of judges would be nice, but you haven’t even committed to the idea that “purple” can’t mean “dog”.

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Steve LaBonne 11.04.05 at 1:47 pm

Here’s a concrete challenge to Thomas an Sebastian. How do we go about determining from the phrase “unreasonable search and seizure” 1) what the “original meaning” of “unreasonable” is and, 2)exactly how that meaning is to be applied to a question that has no 18th-century referent and that happens to concern me professionally: whether states can require convicted offenders to submit DNA samples for databasing. I would like to see a brief outline of how we would combine scrutiny of the text “with usages that were in use at the time”, and perhaps historical research on the “original intent” of the framers, to reach an objective result.

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Steve LaBonne 11.04.05 at 3:00 pm

Slight clarification: let’s not talk about states, but confine the question to Federal offenders and the Federal DNA database, to avoid bringing questions of ststes’ rights into the mix.

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dogfacegeorge 11.04.05 at 3:05 pm

orin kerr (post 19),
I thought your article distinguishing “separation of powers” activism and “precedent” activism was interesting. In SOP, the courts intrude on decision-making better left to the political branches; in “precedent” activism, they intrude on decisions made by earlier judges.
I think there is a third strain of activism when judges intrude on the decisions better left to later judges. I don’t have a name for it, but it exists when a judge reaches an issue that is not necessary for the decision at hand.

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Sebastian Holsclaw 11.04.05 at 3:56 pm

Nice of you to demand further answers without even trying to approach my question. Typical, and typically I’m a sucker who will outline an answer and get nothing whatsoever from you.

But I am actually that sucker so here goes.

This isn’t even a particularly hard query. The Fourth Amendment in fact reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Despite your concern about me believing some absurd “self-interpreting” concept, I fully realize that this amendment has all sorts of suppositions about how the justice system works.

I assume you won’t argue that should be analyzed under “houses, papers and effects” so we should probably focus on “persons”. I also assume that “particularly describing the place to be searched, and the persons or things to be seized” can be a difficult area sometimes, in this case the DNA test to be performed can be precisely described so as to make that clause a non-issue.

If you wanted to analyze the issue I would focus on how “persons” were expected to be treated. As it turns out, convicted offenders while in jail were well understood not to have the kind of privacy rights that are implicated here. In the 18th century your average citizen would be well aware of that fact–at the time of ratification the context you ask about would be quite clear. The obvious and well-understood context of the 4th amendment was in pre-conviction searches and seizures. A search of the person taken post-conviction while still incarcerated is not a big deal. Now it doesn’t actively say “pre-conviction”. That is merely what any person on the street would understand it to mean at the time it passed. This interpretation is also implicated by the word “warrant” which had (and has) an understandable meaning.

So, if the DNA testing is a search, it should be ok.

Is it a search? I would say yes. It isn’t a punishment (like dismembering someone–which would implicate the “cruel and unusual” clause), it typically involves a cheek swab. It is in fact less invasive of the person than a strip search (which would have been allowable in the 18th century). You could have some creative argument that it isn’t a search or seizure, but I don’t know what that would be.

Can the government keep the records? Certainly. This isn’t really a Constitutional question at all, the 4th amendment does not speak on the subject of keeping the fruit of legally obtained searches. There are colorable policy reasons why I think it would be bad to keep such records indefinitely on most crimes, but it isn’t a Constitutional issue. In fact for non-murder, non-rape cases I wouldn’t (as a policy matter) get the samples at all. But that isn’t a Constitutional matter.

Now, before you rake me over the coals on this, I would love to see your understanding of the limits on interpretation. What exactly stops a judge from creating hitherto unknown rights and inserting them into the Constitution? You claim interpretation is not infinitely flexible, yet you give not even the slightest hint about what the actual outer limits might be.

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Steve LaBonne 11.04.05 at 4:19 pm

“Is it a search? I would say yes.” On what basis, according to your stated philosophy? (Are you imagining reviving Madison and questioning him as to wheter taking a buccal swab of a prisoner is something he would understand as a search?) In any case, it’s the word “reasonable” that would be the focus of actual litigation on this question. You say that based on what were understood to be the “privacy rights” (or lack thereof)of 18th century prisoners, it’s reasonable. But where do the words of that amendment mention “privacy rights”? (Isn’t that one of the claims that originalists ridicule?) Furthermore, it is thoroughly unconvincing to use the treatment of prisoners in the 18th century to illuminate a practice- maintaining a permanent record of biological information derived from a prisoner- of which the 18th century could have had no conception. There was in fact no 18th-century conception of whether prisoners were entitled to privacy of their genetic information, becaus the concpet simply did not exist . Essentially, you’re pulling from your hat a guess as to what people would have thought had they had such an anachronistic concept. So, you have multiply failed to fulfill your stated program; you’ve merely engaged in originalist rhetoric in arriving at your preferred outcome(which happens to be mine as well, but which suspiciously is also one that would tend to be questioned more by political liberals than by political conservatives). That, in a nutshell, is what I believe “originalist” judges are in fact doing.

I’m not going to take your bait. I’m not a lawyer, let alone a Constitutional scholar. (I will say that Breyer’s recent book strikes me as a reasonable stab at what you’re asking for, though no doubt you won’t agree.) You’re the one making the, to me, inherently incredible claim that an 18th-century document, read in exclusively 18th-century terms, can be applied directly to 21st-century realities undreamt of back then. So far it doesn’t look as though you can be any more successful than anyone else has been at pulling it off. (I’m quite sure that Madison, if you did revive him, would be highly amused by the idea that the interpretation of “reasonable” in 2005 should still be rigidly constrained by what was considered reasonable (By whom? Where? Exactly when?) in 1793.

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Shelby 11.04.05 at 5:15 pm

dogfacegeorge:

The term would be “unripe”. Orin Kerr’s a member of the Volokh Conspiracy; he posts frequently there.

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Sebastian Holsclaw 11.04.05 at 5:22 pm

“Furthermore, it is thoroughly unconvincing to use the treatment of prisoners in the 18th century to illuminate a practice- maintaining a permanent record of biological information derived from a prisoner- of which the 18th century could have had no conception.”

You put way too much work into “have had no conception”. They would understand the keeping of individual biological information like eye color, tattoo markings, hair color, scarring, height or other distinguising characteristics–some of which would not have been immediately available without close inspection. The fact that there are other physically distinguishing characterisitcs available that 18th century writers were unaware of does not change the fact that keeping record of individualized physical information would have been perfectly fine.

As for the rest, I’m unsurprised to hear that you don’t want to talk about the fact that there don’t seem to be any restrictions on your preferred method of interpretation. I knew you weren’t going to engage in conversation. You prefer to ask, not answer.

“You’re the one making the, to me, inherently incredible claim that an 18th-century document, read in exclusively 18th-century terms, can be applied directly to 21st-century realities undreamt of back then.”

No. I am using the method of contractual and Constitutional interpretation that was in regular use for 150 years and is still used in contracts. You may not like it, but yours is clearly the change.

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Shelby 11.04.05 at 6:01 pm

Steve:

On what grounds do you distinguish taking a DNA sample from taking a set of fingerprints (also an unknown technique in 1789) from a convicted prisoner? Do you contend the latter is unconstitutional?

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Steve LaBonne 11.04.05 at 6:22 pm

Sebastian, the ACLU types, whose hostility to DNA dabatases annoys me, certainly don’t see DNA profiles as equivalent to a record of eye color. So it’s a real stretcher to assume, based on nothing but conjecture, that, say, Jefferson would have regarded this issue in your and my way as opposed to the ACLU’s.

Shelby, you’re asking the wrong person; I run a forensic DNA lab and I certainly have no doubt that taking DNA samples from prisoners is not a violation of their rights. I have no problem in principle even with arrestees, though I have doubts that’s worth doing on cost-benefit grounds. My point in using this as an example is that, however the Constitutional question is decided, any “originalist” argument involved in the decision has to smuggle in 21st century ideas and preferences under the cover of the rhetoric about confining oneself to 18th century categories. The rhetoric writes a check that can’t be cashed in practice.

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Shelby 11.04.05 at 7:45 pm

Steve:

There’s nothing new about applying the constitution to techniques and situations that could not have arisen in 1789. Even then, it was common knowledge that change (largely technological, though also philosophical) was occurring rapidly and that the law must deal with it. English Common Law didn’t have to change significantly to accomodate the steam engine or the proliferation of canals, the traditional principles were readily adapted.

In the same way the Constitution didn’t require dramatic change or new reading to apply it to new situations. It was drafted before there were railroads in the US, but it handled them just fine. Rights-of-way and eminent domain were the main constitutional issues, as I recall, but were not difficult to resolve with the original text and meaning.

The fact that the ACLU’s attorneys challenge an analogy doesn’t make it inapt, or unconvincing. It’s not hard to figure out how the Fourth Amendment applies to the situation you described; originalism deals with it handily. “Reasonable” is not hard to parse in this context.

Moreover, you ignore the problems created by approaches that are not closely tied to the text. For example, “public use” does not mean “public purpose” or “public benefit” — if the text were supposed to say that, it would. Yet in Kelo (and arguably in some predecessor cases), the Court wrote “use” out and replaced it with, well, whatever word was useful to reach the Court’s desired result. Is this your superior approach?

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Steve LaBonne 11.04.05 at 8:58 pm

I completely disagree that “originalism deals with it handily”; no such conclusion has been established here. I’ve given my reasons for rejecting Sebastian’s explanation, which seems to me “originalist” only on a purely rhetorical level, with all the appeals to the 18th century being blatant question-begging. (If you think you can do better, let’s see your version.) And my example is just the first one off the top of my head; there are many, many things in our world of which the 18th century could not possibly have dreamt.

Competing approaches are not my concern here (I’ve already disclaimed any great knowledge of Constitutional law). The question I’m discussing is whether the claims of originalism to be anything more than rhetorical window-dressing can really be backed up in practice. I’m far from convinced by what’s been said so far. If originalism is bankrupt, citing the deficiencies of other approaches can’t help it.

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Sebastian Holsclaw 11.04.05 at 9:56 pm

Dude, textualism (not originalism) has its flaws, but you aren’t even close to one of them by suggesting that searching for DNA can’t be a search because the framers didn’t know what DNA was.

Killing someone with a laser is still murder even though the drafters of many murder statutes had certainly never heard of a laser.

This discussion has been like talking about intelligent design with a fundamentalist Christian. Learn high school biology before going off on people and avoid calling a theory you apparently have zero understanding of “bankrupt”.

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Steve LaBonne 11.04.05 at 10:07 pm

Yawn. So all you’ve got now is an “argument” by godawful analogy (analogizing a new means of committing an old crime with the completely new concept of privacy of genetic information.) Bluster won’t help you. The fact is, you simply made up out of whole cloth your assumptions about how 18th century people would have responded to the latter. Some other “originalist” could easily reach the opposite conclusion without either of you having the means to convince the other, since there is simply no fact of the matter to settle the argument. As I said, the “originalism” here is confined to the rhetoric.

The most distinguished law schools are full of people much brighter than I who would be even less polite about originalism, so that ID analogy is one you might want to be a bit careful about.

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Sebastian Holsclaw 11.05.05 at 12:05 am

“So all you’ve got now is an “argument” by godawful analogy (analogizing a new means of committing an old crime with the completely new concept of privacy of genetic information.) Bluster won’t help you.”

That is how the law has worked all this time. That is perfectly within both textual analysis and any other analysis you are likely to have heard of or cited. At this point all you have revealed is ignorance, and you are apparently too tired to try to learn.

And it is textualism, not originalism. It is (dare I use an analogy) like the difference between LaMark and Darwin on evolution. The fact that you can’t be bothered to figure it out shows how much this conversation was about your posturing.

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abb1 11.05.05 at 6:27 am

Why is it wrong to read ‘public use’ as ‘public benefit’, if it makes more sense? The text is not god-given, not sacrosanct, it’s a product of a political compromise made 200+ years ago; it’s ultimately a political document.

I have no doubt whatsoever that most of those who wrote the text and those who voted for it perfectly realized that the text will be interpreted in a political context; otherwise they would’ve made sure it’s regarded as the Law of God.

The text gives a broad outline, establishes main principles; it’s full of terms like ‘reasonable’, ‘unsusal’, ‘excessive’ – the terms you probably never find in a commercial contract; the terms that clearly call for re-interpretation based on modern realities. Why is the ‘public use’ vs. ‘public benefit’ is not one of those as well? It certainly doesn’t violate the spirit of the law, does it?

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Sebastian Holsclaw 11.05.05 at 10:23 am

“Why is the ‘public use’ vs. ‘public benefit’ is not one of those as well? It certainly doesn’t violate the spirit of the law, does it?”

It does violate the spirit of the law–“public use” involves use by the public. “Public benefit” is almost anything. The transformation from use to benefit nullifys the limitation.

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Thomas 11.05.05 at 11:15 am

Steve, I’d be careful about relying on your law school betters on this one. There are many advocates of textualism and of originalism (not the same, again) on distinguished law school faculties (and many advocates of nonsense as well). Deference is not a substitute for argument or understanding. Further, given that an interpretive strategy must be chosen, it isn’t enough to examine one approach, as you’d have us do, in a vacuum. I’d imagine that no approach, examined in that fashion, would be found satisfactory, but, again, some approach must be used (the text, after all, doesn’t interpret itself), so a choice must be made.

abb1, if we understand the constitution as a political document, reflecting political compromises, why is that an argument for un-doing the compromises reflected in the document? Presumably “public benefit” could have been agreed upon, as a political matter; so why not enforce the deal that was reached (“public use”)?

As a matter of fact, many commercial contracts do contain broad terms, such as “reasonable” and “good faith”. Those are ordinary, everyday agreements in commercial law.

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abb1 11.05.05 at 11:23 am

Fair enough.

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Steve LaBonne 11.05.05 at 12:06 pm

On the amount of support for originalism on law school faculties, let’s get it straight from the horse’s mouth: “You can fire a cannon loaded with grapeshot in the faculty lounge of any major law school in the country and not strike an originalist.” -Antonin Scalia

I don’t have a comparably fun quote on “textualism” but it’s clear that most professors of constitutional law at major schools are advocates of the “living constitution” in one way or another. And yes, the scholarly consensus in a field, while not the final word, certainly says something about the current intellectual state of play. A fringe doctrine, and moreover one well-equipped to serve as a veneer of objectivity over subjective, conservative political preferences, is rightly an object of, if not suspicion, at least enhanced scrutiny. See Henry’s update for very suggestive empirical evidcence on how conservative jurists really behave in practice.

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Sebastian Holsclaw 11.05.05 at 9:47 pm

Steve, of “textualist” and “orignalist” which do you think Scalia is? I think you don’t understand your quote.

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Pithlord 11.06.05 at 6:20 pm

If textualsm means that the text is important, no one ever denied. If it means that the text is determinative, no (serious lawyer) ever defended it.

Similarly, if originalism means history is important, no one, including William O. Douglas, ever denied that either. But if it means that we should use a hypothetical time machine to figure out what Madison would think of Internet porn, then even Scalia doesn’t defend it.

Constitutional norms (at least the interesting ones) are pitched at a rather high level of abstraction and generality. Of course, Sebastian may think the application of these norms is obvious, but that just means that he thinks his own opinions are obviously true, a condition he shares with a majority of people on the Internet.

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