Originalism and Precedent: From the Seed of the Not-Nut Grows the Living Constitution

rea beat me to my immediate response.

It is a mistake to take originalists at face value. Originalist are chameleon-like in their ability to support the status quo.

I’ve read numerous articles on legal matters (usually in non-specialist sources) that seem to conflate a sort of originalism (some attempt to find the original intent of law) and textualism (strict interpretation of the law as it is written). Now, anybody who has taken an undergraduate course in literary theory knows that doesn’t make sense: a theory focused on interpreting the text itself specifically rejects any concern with authorial intent, and attempts to find authorial intent often require extra-textual information.

So…are the articles I’m reading poorly written or poorly informed? Or is there some sort of incoherence in originalism/textualism that any student of the most basic literary theory can discern?

Scalia claims to be both a textualist and an originalist: unless I’ve misunderstood the terms (quite possible), I have difficulty seeing how one can be both.

“If what you want most is judicial restraint, and no activist judges, originalism is near to the worst of all possible judicial philosophies.”

This is misunderstanding the claim. You want judicial restraint AS TO THE CONSTITUTION. If the Constitution says ‘A’ and the legislature says ‘not-A’, it isn’t judicial restraint to ignore the Constitution and let the legislature do ‘not-A’.

Judicial restraint isn’t a question about how many times the Supreme Court overrules the legislature. It is a question about how many times it overrules the legislature when the legislature hasn’t violated the bounds of the Constitution. To take an extreme example, if the legislature banned political speech, the Court would be right to strike the law down even if the legislature passed it 100 times. That wouldn’t be ‘activism’ just because it happened 100 times.

Sebastian- if that’s judicial restraint, then the phrase is meaningless. It would only preclude judges from ruling in bad faith, and I’m prepared to believe that judges rarely do that.

Judicial restraint, if it is to mean anything, is the idea that we should presume that the legislature is also acting in good faith, and that judges should be loath to overturn it when a plausible case can be made for the constitutionality of a law. In essence, judicial restraint is the rejection of grand theories of judicial interpretation.

Not that most people seem to understand that, even in the legal community.

“Sebastian, if you can give me a compelling argument that the 2nd Amendment right to bear arms criminalizes possession of ice cream by anyone over the age of 70, I will accept this claim.”

I don’t think they could get that out of the 2nd amendment, they would get it out of the penumbras of the fourteenth of course.

“Seriously, there is no reason why ‘living constitution’ arguments are any less interpretively ‘bounded’ than originalist ones. ”

This doesn’t make much sense as a claim. Of course there are reasons why living constitution arguments are less interpretively bounded. The whole point of bothering with them is that they are less bounded. A huge reason for having them is being able to change the actual text without resorting to pesky amendments. And it is a bit annoying that you treat it as if I was being purely theoretical, the death penalty silliness is a classic example of exactly what I’m talking about. The general refuge of the living constitutionalist is in something like “changing moral consensus”. You have to go beyond the text because the text specifically talks about how to hold capital trials, which would be rather silly if the constitution forbade capital punishment.

“No person shall be held to answer for a *capital*, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…”

“nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of *life, liberty, or property*, without due process of law;”

So, the interpretive bounds of the TEXT don’t allow for the interpretation that capital punishment is unconstitutional. Whatever “cruel and unusual punishment” is, it definitely doesn’t outlaw capital punishment as other contemporaneous portions of the document specifically outline capital procedures.

A textualist interpretation can’t go that far. But living constitutionalist interpretations regularly do. In fact some of the biggest living constitutionalist heroes, which I named above (Marshall, Brennan, Tribe), all think that their method is not bounded in that way, and that they can decide that the Constitution forbids the death penalty.

How do they get there? They get there by appealing to “evolving standards of decency” or “emerging moral consensus”. But this is just sleight of hand as the death penalty has never been condemned by a majority of the American public, and certainly there is no moral consensus in the US on the subject one way or another. In fact it seems rather well contested to me. [And I would argue that even if you did allow for such arguments, it would need to be something close to a real consensus, or at least a *very* overwhelming majority. Otherwise, if Constitutional phrases really could just change at the 50% level, it isn’t clear why you need a Constitution at all rather than just hitting up the majority for whatever it wants. Do you really want “establishment of religion” or “freedom of speech” or “self incrimination” to be subject to a 50% majoritarian ‘evolving standard of decency’ rule? Of course not. And death penalty opponents haven’t ever even gotten there.]

So the textual bounds on the phrase in the document itself don’t allow for the interpretation. The general societal understanding doesn’t jibe with their interpretation. What grounds therefore limit their interpretation?

And I say all this as someone who from a policy point of view is pretty darn skeptical of the death penalty. I fully expect the government to deeply screw things up on a regular basis, to routinely fail to give a crap about individuals trapped in government cog wheels, to try and convict people sometimes more on political grounds than on the facts, and to otherwise be very untrustworthy. I don’t like the idea of such a government killing people. As a legislator, I’d vote to suspend the death penalty and probably get rid of it altogether even though I don’t have moral qualms about the death penalty *itself* as a potential punishment in theory (in practice I don’t trust the government with it). And the Constitution would allow me to do that as a legislator because the Constitution doesn’t *require* that Congress authorize a death penalty. But I couldn’t make that decision as a judge, because the Constitution explicitly and textually permits a death penalty. If you think that the Constitution shouldn’t allow a death penalty, it can be changed by amendment. If you think the law shouldn’t allow a death penalty, and that an amendment is too hard, you can petition the legislature and get your preferred rule at the majoritarian level.

But what you shouldn’t do as a judge, is decide that you hate the death penalty as policy, and then act as if the Constitution agrees with you in forbidding it.

Saying “I think the policy should be X, but the Constitution doesn’t mandate that” is something that living Constitutionalist rarely if ever seem to have to do, while whatever else you think of Thomas for example, he does that.

Can you argue that textualists don’t do that enough if they are true to their theories? Sure. But that isn’t the same as saying that living constitutionalists do that at all.

I can’t think of a single case where a legislature passed something and a living constitutional influenced judge OR academic said “I agree with the policy that the legislature has enacted but nevertheless it is unconstitutional”. It just doesn’t happen. It may not happen *enough* from textualist judges, but it doesn’t happen at all with living constitutionalists.

If you disagree, just give me a cite, I’d love to see it.

If the constitution always allows the preferred policy of the judge, why do we need judges to interpret it? What makes them so special?

Now you may say that judges don’t make positive laws (which is mostly correct, though some of the rulings get awfully close–see the out of nowhere trimester system analysis of Roe v. Wade). So they are politically bounded to mostly respond negatively. And while this provides A limit to what they can practically *mandate*, it isn’t so much an interpretive limit as it is a procedural limit in the way that cases come before them.

A good litmus test for a Constitutional interpretation theory is, does it ever flatly outlaw policies you personally think would be great such that if a legislature enacted such a policy, you would be forced to strike the law down.

Because if it doesn’t, either you are amazingly in resonance with exactly how the Constitution turned out, what a coincidence, or you are deluding yourself.

And it is ok to say that you don’t think Constitutions are all that they are cracked up to be. Maybe they should just outline how to elect representatives and what voting thresholds are needed. Maybe they aren’t really that useful. But if they are, surely they sometimes force you to go against your policy preferences.

“OK, this means you couldn’t meet my challenge, Sebastian. ”

And you aren’t engaging mine. You are being purely theoretical while I’ve given a concrete example from real jurisprudence. You are showing ridiculousness ‘in theory’, I’m showing it in practice.

“Look, it comes down to this: Your Honor, is your construction plausible, or do you now look like a kid caught with his hand in the (Constitutional) cookie jar? ”

Death penalty, kid, cookie jar, actually occurred. Have you even mentioned it? You keep asking for theoretical answers when you won’t even engage my concrete ACTUAL examples.

“You are, in effect, alleging that some judges will have no shame and will ram through tortured, strained stuff, to suit themselves (consciously or unconsciously). ”

Death penalty, no shame, rammed through tortured, strained stuff, lauded by living constitutional theorists and written up by actual Supreme Court justices.

“But do you think it’s totally impossible to say shameless, implausible stuff about history?”

*Impossible*? Of course not. But so what? It is as if you are asking me if it were impossible for democratic republics to become nasty dictatorships. Of course it isn’t IMPOSSIBLE. We’ve even seen it happen. But the structures of democratic republics make it tough. Likewise it isn’t impossible to have ridiculous decisions that purport to follow a textualist analysis. But it is harder to do because the text is right there for anyone to read. And the check on self-deception (because I’m not suggesting that most judges are deliberately being so cheesy) is a more concrete one than “evolving standards of decency” because when you are a powerful judge, you aren’t as likely to be faced with the fact that your evolving standard of decency isn’t really connected to the nation’s standard of decency as you are to be faced with the fact that your interpretation of the text in front of you requires a huge amount of straining. Will judges do so anyway? Probably. But at least we have a reference to point that out in the text.

Is this a perfect check? God no.

“You are, in effect, alleging that some judges will have no shame and will ram through tortured, strained stuff, to suit themselves (consciously or unconsciously). ”

Quite. And some of them will even claim to be textualists. But the textualists who do so can be called out on textual grounds. The living constitutionalists? On what grounds do we judge them wrong?

“You are, in effect, assuming that being an originalist goes with having good faith in one’s duty as judge, and being anything else is an invitation to bad faith, or even an expression of it.”

No. I’m doing no such thing. You are greatly overestimating my trust of judges who claim to be originalists or even my trust in those who are actually originalist to avoid self-deception. But at least we have a basis to judge their pronouncements against. You have provided no similar basis on which to judge the pronouncements of living constitutionalists.

You are rather quick to provide tests but rather slow to answer them. You partially quote me but have ignored my specific examples and you ignore the specific question I asked in the part just above what you quote.

“If you can’t – and I think you really won’t be able to – then your theory fails. It is not, in fact, possible to say anything you like and have it be plausible. ”

When have I argued that living constitutionalists have to be particularly plausible? I’m arguing that the living constitutionalist theories of the constitution and the death penalty are implausible, yet nevertheless widely held. All I have to do is get to *as plausible* as the death penalty argument. And that isn’t hard. If I spent a few weeks researching I could come up with more cites but how about this as a basic outline:

(I’m presuming that this isn’t a “can’t defend myself pacificist”, if you want to engage it to that further level, I’ll have to ask you to respond to my real world examples before I spend time on your purely hypothetical ones).

Even historically, the power to declare war has been rhetorically tied to matter of self defense. The seeds of our country’s current understanding can be seen in the history section 8, where the Congressional power is tied to Letters of Marque and Reprisal–which are given only in direct retaliation for wrongs done to the nation and its people. Furthermore the Congressional power to raise a militia was especially noted for the purposes of supressing insurrections and repelling invasions; both acts of governmental self-defense. In the more than 200 years since those words were written, our nation has come to the evolving moral consensus that conducting war is only legitimate in direct self defense of its citizens against imminent danger of attack. This consensus is evidenced by similar developments in our understanding of personal self defense, for example the fact that in a growing number of states, threatening or using deadly force is only authorized in the very moments before serious personal injury is likely to result. This new consensus on self defense combined with the deepening understanding of the moral costs of war creates an implict limitation on the Congressional power to declare war. Congress is not empowered to declare an unnecessary, offensive and agressive war. It may only Constitutionally declare war in cases where the lives of Americans are seriously and imminently in jeopardy. To rule otherwise would be to violate the basic tenets of justice that are the foundation of our Constitution. Normally this Court would exercise deference to Congress in the close cases of the exercise of its power, but in the instance before this Court petitioner has brought clear evidence that country X does not now have the immediate ability to threaten the lives of our citizens, nor has it expressed an imminent desire to. It does not have a verifiable history of assaulting our citizens, and its capabilities are severely unlikely to be able to do so at any time in the near future. As such, Congress may not violate the limits of self-defence implicitly placed on it by the Constitution and the evolving understanding of the justification for offensive action now adopted by the people of the United States. For the case at hand, Congress may not declare war.

(Is it unassailably convincing? No. But is it less convincing than the death penalty stuff? Not much. And I’m pretty sure if I had a couple of law clerks for a few weeks I could spruce it up with all the right terms of art [grievous bodily harm?] and some choice examples–maybe even appeal to an evolving world consensus with citations to the UN).

Patrick: Judicial restraint, if it is to mean anything, is the idea that we should presume that the legislature is also acting in good faith, and that judges should be loath to overturn it when a plausible case can be made for the constitutionality of a law.

If that’s the idea, then shouldn’t you expect judgements to be made on the basis of something like a standard and burden of proof, without endorsing any positive argument that the statute (or whatever) is indeed constitutional? The alterna0tive seems to be that interpretation of the constitution is deliberately to be tipped in favour of the legislature (or other state institution), by treating ‘plausible’ as ‘decisive’.

If the constitution is to be taken seriously, then perhaps the key idea should be that it doesn’t get changed – except by amendment. Otherwise its protections stand a good chance of being eroded in favour of the state (which explicitly selects judges as political appointees acceptable to both sides). If reference is not to be made directly to its ‘original’ provisions (on whatever standard) when applying it, then you have the possibility that precedent builds on precedent and slithers down some slope or other, especially when the reasoning in individual cases is often expansive. On the other hand, settled precedent is after all supposedly only about interpreting the (original) constitution, and has to, er, stand unless there is a very good reason, in the interests of stability and avoiding excessive discretion (activism) on the part of individual judges and majorities.

The whole point of the constitution (at least the amendments) is supposed to be that it specifies what bits of justice are to be done regardless of what chicken licken may have to say about it.

(But then the whole thing is of course riddled with party politics; both the courts’ findings and the discussion thereof, which appears to be conducted in code, judging by the way it moves around as if buffeted by invisible forces. I expect I’m speaking out of turn and repeating right-wing talking points, contrary to the requirements of strategic agnosis.)

[edit: just seen alex’s comment and from an outsider’s perspective that is indeed pretty much how it looks.]

So they want “originalism”, like, um that companies aren’t people (as was precedent for most of the country’s evolution)…

Oh, and by the way, the fact that the Constitution contains rules limiting implementation of the death penalty arguably suggests that the founders did not see the death penalty as necessarily being barred by the 8th Amendment, but Sebastian’s claim, “the Constitution explicitly and textually permits a death penalty,” goes too far. If I tell my grandkids they can’t have candy before dinner, have I “explicitly and textually” permitted them to have candy for dinner?

Staying out of the Sebastian debate, just wanted to focus on this by Patrick:

[Thomas:] no sentence or phrase in a law is or can be considered redundant, and that it is necessary that every phrase be given an independent meaning

That is not some weird Clarence-Thomas-textualist mumbo-jumbo. That’s a very ordinary canon of legislative interpretation, which surely has its counterpart in the jurisprudence of all 50 states.

Further, if the statute on its face admits of a clear meaning, then no resort to extrinsic materials is proper; the legislative intent is shown by the statute itself. Where the statute is unclear, then you look to extrinsic evidence.

Of course, very little in the Constitution is clear. I’m just saying that these “canons” are quite ordinary in legal interpretation.

anderson in #22 is right: the canon that one must “give effect to every word and phrase” is a very old one, sometimes described in the negative as the norm against finding “statutory surplusage”, i.e. treating bits of the text as though they were redundant, meaningless, or had just crept in when no one was looking. for more see see j.k. bentil in statue law review of 1991.

like most canons, it is defeasible at best. and like most canons, i believe it originally arose in the context of scriptural interpretation, though i can’t seem to pin that down in a quick search.

@23–remember, rea, these are also the people who think that defendants do not have rights until they are advised of them.

“if you just hadn’t “mirandized” him, he would never have had that filthy right to remain silent! the fifth amendment didn’t even apply to him until you had to spoil everything by reciting a magic formula!”

that, in other words, is how deeply opposed they are to the founders’ understanding of the origins of rights.

Semi-pwned by Rea, but “law must be contained in an authoritative and democratically legitimated text” isn’t quite as new as 20th-C; you can see it in Tom Paine’s insistence that where you can’t point to a single document, there’s no constitution at all (Rights of Man, first section, http://ebooks.adelaide.edu.au/p/paine/thomas/p147r/#chapter1). An extra irony of the originalism-v-LC debate is that it’s Burke v. Paine all over again, but with the contemporary left on the side of Burke, and the contemporary right on the side of Paine.

like most canons, it is defeasible at best

Oh, sure. For every canon there is an equal and opposite canon. For instance, you give effect to all parts of a statute — hence, no surplusage — *except* where doing so would “frustrate the statute’s purpose,” which you have somehow divined.

The canons come up a lot more in statutory construction, because legislatures can’t draft for shit. (Also, in state cases, there’s typically a lot less legislative history etc. to look at, so you have to play with the statute.)

where doing so would “frustrate the statute’s purpose,” which you have somehow divined.

It’s not that uncommon for statutes to have a section stating what there purpose is. Divination is only occasionally necessary.

the legal hooker

“The judicious Hooker” is the cliche, right? Or are you based in Nevada? — And you left out “a command of basic English,” btw.

It’s not that uncommon for statutes to have a section stating what their purpose is.

Not unheard of, but not necessarily common or even helpful, though they can be (like the expressly remedial purpose of workers’ comp statutes).

“Why he’s willing to tolerate a change in our understanding of what is a “poison,” but not in our understanding of what is “cruel and unusual,” is a mystery.”

Because the document itself tells us that certain interpretations would be too far. Holbo seemingly agrees that there are some limits somewhere to legitimate living constitutionalist interpretation (though he is vague about even hinting about what they are). If those limits do not include textual contradictions with contemporaneously written passages it is difficult to see what substance those limits allegedly have.

“Sebastian, before we take another step, I was taking plausibility as a necessary but not sufficient condition for any judicial judgment being a good one. You, it seems, do not even take it to be necessary. Judicial decisions don’t have to be plausible to be good?”

It is difficult to understand what you could possibly mean by ‘plausible’ here. Is there some term of art that I’m not understanding? We get implausible decisions all the time, largely because we build precedent on precedent on precedent without bothering to use the original text as a reference point to see if each step remains plausible. See for example the widely held living constitutionalist understanding that “interstate commerce” means “any commerce”. It isn’t a plausible reading of the phrase, but nonetheless that is exactly how it is interpreted.

“Surely originalism does not preclude bad judgment? So what is the point? Suppose I grant that x, y, and z are bad decisions, made in the name of a ‘living constitution’. Let it be so. Presumably the problem was that these people strained precedent and plain language to the breaking point. That’s not what you are supposed to do. ”

But on what basis do you judge the straining of “precedent and plain language” in any of the current iterations of living constitutionalism seemingly in practice? You have removed the most obvious one–the text–as the defining factor and have replaced it with what? Precedent? I fail to see how precedent avoids any of the problems of textualism, it merely transposes all of them to a greater variety of texts.

And it isn’t as if precedent is all that important to the living constitutional arguments that I’ve seen anyway. See for example Roper v. Simmons (again on the death penalty) where Kennedy reversed the directly on-point court ruling from only 15 years before. And he didn’t say “we got it wrong then” he said, without virtually any plausible evidence, that society’s evolving standards of decency had changed in the intervening period. But in fact, the US view on the death penalty had changed almost not at all between 1989 and 2004 (with some evidence that the death penalty was actually becoming more popular).

“As to your challenge to name a case in which a ‘living constitionalist’ justice has said they wish some legislation could be passed but it’s unconstitutional – well, I can’t think of any examples. But I can’t think of any originalist examples either. It would sound too much like bad-mouthing the Constitution, wouldn’t it?”

Why would that be bad mouthing the Constitution? It is saying that it just doesn’t speak to everything. And Thomas says things like that all the time: for example he said that the Texas law in Lawrence was “uncommonly silly” and that if he were a legislator he would vote against it, but that nevertheless the Constitution didn’t ban it. And there has been a long history of similar pronouncements going back hundreds of years. It is practically a time honored tradition.

But you’re right, you don’t see living constitutionalist judges saying things like that.

“We moderns don’t think of law that way at all, so where the founders saw judges constrained in their exercise of power by natural law, Sebastian and the Originalists see unconstrained arbitrary judicial power and a violation of democratic principles. To Sebastian, law can only be made legitimately by an elected legislature. That view is completely the product of 20th and 21st Century epistemology, and would have been regarded with incomprehension by the founders”

Sure, but that is because they actually saw it restrained by natural law. If you don’t see it restrained by natural law and you don’t see it gaining authority from the legislature, and you don’t see it gaining authority from the governing document, it isn’t clear where it is restrained.

If you want to argue that demise of natural law concepts means that judicial review ought not be bothered with, feel free.

the widely held living constitutionalist understanding that “interstate commerce” means “any commerce”

Nobody thinks that, you’re erecting a straw man. Commerce in anything for which there is an interstate market is “interstate commerce”; however, and as a practical matter, in this modern world, that makes most commerce interstate commerce.

One of my grandkids read this thread, pointed to Nos. 20 and 36, and told me that Sebastian had given him permission to have candy for dinner.

Compassionate conservatism rules.

kid blitzer, your hypothetical reminds me of an actual law: the Animal Welfare Act defines what animals are not, in fact, animals. According to your hypothetical, I think it’s possible that legally, mercury would not be poisonous.

“(g) The term “animal” means any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes (1) birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research, (2) horses not used for research purposes, and (3) other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. With respect to a dog, the term means all dogs including those used for hunting, security, or breeding purposes;”

http://www.animallaw.info/statutes/stusawa.htm

if you intend to find the original meaning of a passage as it was understood by human beings, is obviously stupid and counterproductive

That’s just a tad cocky, seems to me.

The rule has practical value: if the courts were always free to jump from the statutory text, however clear on its face, to extrinsic evidence, or to disregard part of the statute on flimsy grounds, then there would be very little restraint on the judiciary. For comparable reasons, you’re generally not allowed to point to e-mails or whatever as evidence of what your contract with somebody “really” meant, or as proof that section 5 wasn’t really supposed to be in there, unless the contract itself is unclear.

And of course statutes are redundant sometimes; I said so above. Consider this stately passage from a court opinion:

It is manifest that there is no repugnancy between section 261 of the constitution and any statute, unless it be the letter of a useless declaration in section 2230 as to fines collected and paid by justices of the peace. It is inconceivable that any purpose was had to make any distinction between fines and forfeitures with reference to the courts imposing them, and the seeming repugnancy of section 2230 may be disposed of without violence to the section, and in harmony with the manifest purpose of the constitutional convention to change the destination of fines and forfeitures.

State v. Stone, 11 So. 4, 6 (Miss. 1892) (emphasis added). So courts do sometimes disregard surplusage by appeal to “manifest purpose,” but that is the exception, not the rule.

In general, canons tend to state common-sense rules of reading. Specific controls over general; later enactments are presumed to modify earlier ones. And so forth.

And Thomas says things like that all the time: for example he said that the Texas law in Lawrence was “uncommonly silly” and that if he were a legislator he would vote against it, but that nevertheless the Constitution didn’t ban it.

That’s not what you were asking for, though. You asked for an example where the person says that the law is a *good* idea but the Constitution *does* ban it. Clearly the Constitution permits lots of stuff that it doesn’t mandate, so the two cases aren’t parallel.

When has Thomas said something like “sure, this restriction of the rights of the accused would make us all safer from criminals and terrorists, but nonetheless the Constitution forbids it and I must rule accordingly”? Never AFAIK — that’s when the rhetoric about “not a suicide pact” starts flying and the putative originalists discover that *of course* the Founders didn’t mean what they said *literally* when it might make it too difficult to enforce the law/maintain public order/etc. and it’s terribly important to defer to the judgment of the legislature on these things, don’t you know.

Or, in other words, they support the text when they agree with it, and when they don’t, they’re perfectly happy to help it become a dead letter.

if we can learn more about what things fall under the scope of “cruel and unusual”

“Learn” seems like a suspicious choice of verb in this context. There is an important sense in which the poisonousness of mercury is “there” whether we know about it or not, which doesn’t clearly extend to morality (or to cruelty). Indeed, it sounds to me like you’re trying to bring back natural law in a new guise: we now ban slavery not simply because our societal judgment has shifted against it, but because we have a “better” (in some verifiable sense?) understanding of “moral facts”, i.e. natural law.

“Cruel and unusual” is an odd choice of phrase in the first place: does it really imply that cruel and usual punishments are permitted? And does that permission continue only until they become no longer usual? That would let changing social standards in the back door even without redefining “cruel” itself.

does it really imply that cruel and usual punishments are permitted?

(1) No–that’s the “candy for dinner” problem all over again.

(2) The 8th Amendment does not prohibit punishments which are not both cruel and unusual. this disticntion is somewhat important in my state, Michgian, which has a constitution banning “cruel or unusual punishments. A judge who sentences a criminal to write out 1000 times on a blackboard, “I must not rob gas stations,” arguably violates the state but not the federal constitution.

“does not prohibit punishments which are not both cruel and unusual”

huh. are you sure that’s right? so if flaying was the usual thing, then its cruelty would be no reason for 8a to bar it?

in that case, i don’t see how 8a has ever been held to ground a challenge to the death penalty, since it has been entirely usual.

you know more about this stuff than me, of course. but i must say i’m surprised to see this.

(note also that the phrase in 8a is “c & u punishment*s*” in the plural. so without strain this could be taken distributively, to mean crucial punishments, as well as unusual punishments, rather than punishments each of which is cruel and unusual. i think the plural makes that go down somewhat easier than the singular would. but what do i know.)

“in 1802, a piece of legislation explicitly forbade the introduction of ‘poisonous substances’ into foodstuffs. in the same piece of legislation, quicksilver is mentioned as a permissible additive “because of its preservative properties, which produce no noxious or poisoning effects.””

You would need to change the law.

“does this law, if it is still otherwise good law, prohibit the introduction of mercury into foodstuffs? i would say that it does, as mercury (we now know) falls under the general ban on poisons, enunciated in the law. the fact that mercury is also mentioned in the law, and explicitly permitted, does not show that the legislatures wanted it permitted even if it is poisonous, only that they wanted it permitted on the assumption that it was not poisonous.”

No, as a matter of statutory construction you have this exactly backwards. The specific rules win over the general. If you want mercury to be banned you have to change the law. And this isn’t me being ideological, that is routine statutory construction.

“the application to the case of capital punishment and cruelty should be clear. if we can learn more about what things fall under the scope of “cruel and unusual”, and if we can learn that the original writers were simply wrong to think that capital punishment falls outside of the scope of that clause, then the fact that it is mentioned in the same legislation tells us nothing about its current permissibility.”

The application is clear, but you had the rule backwards.

Furthermore what do you mean by “*learn* more about what things fall under the scope of ‘cruel and unusual'”? It sounds to me like you are trying to smuggle natural law in the back door. Which I could probably be ok with, but liberals and progressives pretty much hate natural law theory so I’d like to be really explicit if you are doing so. Are you making an appeal to an extrinsic moral law?

Most liberals won’t do so, which brings us back to changing moral consensus. Which of course doesn’t actually exist on the death penalty in the US (or frankly Europe either if you look at opinion polls).

Then typically the argument goes into a two step here, where it is pointed out that the Constitution doesn’t change at the whim of the majority. Which is true, but that doesn’t mean that it is supposed to change at the whim of the elitist minority. It is supposed to change in response to super-majorities.

Furthermore you can’t logically appeal to the counter-majoritarian side of the Constitution while simultaneously claiming that the minority gets to change the meanings of words based on newly emerged moral consensus. That just doesn’t make sense.

Why does learning what is cruel require natural law? It just requires a natural meaning of the word “cruel”. Your theory might hold that there is a natural notion of cruelty, but that there are no natural prohibitions on it – it takes some sort of positive law to make cruel things illegal, but fortunately the constitution explicitly took that step. Of course, it remains for us to determine what is cruel, and the founders were just wrong when they thought some things (like slavery, and murder) were not cruel.

“Of course, it remains for us to determine what is cruel, and the founders were just wrong when they thought some things (like slavery, and murder) were not cruel.”

Fantastic. But who is ‘us’? Why isn’t ‘us’ the elected representatives instead of judges? Or why isn’t ‘us’ expressed through Constitutional amendments?

It seems to me that if (1) corporations are persons (obvious! right there in the text! part of the original intent!), then clearly (2) they are neither born nor naturalized in the United States, but (3) they are just as clearly here in our midst (4) without ever having passed through immigration, so (5) they are illegal immigrants and (6) should be deported immediately.

“The worry about the Living Constitutionalist view, then, is not that you have nothing whatsoever to work with except your own preconceptions about desired results, as you have been suggesting; rather, that you have so many elements to work with that, in effect, you can juggle them to the point of being able to get any result you want, should you be the sort of sneaky-sort who would do that sort of thing to an especially egregious degree.”

Yes, but you don’t have to be the sneaky-sort. You just have to be human. If you put in an enormous number of ‘balancing’ points you can always get them to come out to the result you want. And you can deceive yourself into believing that it is what the law wants all along. The danger in doing that in the Constitutional context is that you can tend to elevate your personal beliefs beyond the reach of standard politics–requiring drastic measures to correct.

“But, of course, the idea is supposed to be that you consider the text and what the framer’s probably meant and other stuff, too. Precedent. Changing circumstances and social standards.”

We are maybe getting somewhere. First of all, I’m not particularly convinced that what you are describing has much to do with living constitutionalism in practice.

I’m not personally an originalist in the sense that I think you have to magically get inside the head of the framers. But how about this for a consideration–I believe that of all the factors available, the text is primary. Historical considerations are about understanding the text. Precedent is a history of how other people have dealt with, understood, and applied the text. They are important because they are methods of dealing with the prime focus of Constitutional law–the Constitution. The other considerations are well and good. Precedent is often a fair shortcut. Changing social understandings can color the way things work out in precedent. But ultimately the text is the important part in making Constitutional rules. You should check the line of precedent against the text. Sometimes, like the game of telephone, things get garbled if you don’t go back to the text. (See especially the Death Penalty cases which you seem to studiously ignore).

This isn’t just stubbornness, it makes sense because getting wrong is really difficult to fix, creating a situation where a very few people end up with a very large amount of political power that can’t be quickly corrected through normal elections. The theoretical reason for the difficulty to change the Constitution is to avoid changes based on the whim of the electorate. But that isn’t designed to give even more power to the elite, it is supposed to be a check on them too. It is meant to be a touchstone, that everyone can rely on, and which doesn’t get big changes without big buy-in from the whole country.

That is not how living constitutionalism is functioning in practice. I’m not even sure that it functions that way in theory. But it definitely doesn’t in practice. Living constitutionalism seems intentionally designed to get big changes without bothering with big buy-in from the whole country and to do so without resorting to the amendment process ever so far as I can tell.

And if you are so willing to deal with purely theoretical objections, I’d like you to deal with that one.

If you want to deal with theory in practice, I’d love to understand how a living constitution-oriented observer would successfully criticize something like the death penalty decisions.

@69 I guess I should apologize for being specific?

It seems kind of weird that you can get huffy about hypothetical pacifists and my inadequate responses to them while you can beg off on specific well known cases. The Supreme Court isn’t a hypothetical.

“But I don’t see why I should change my overall philosophy of judging as a result.”

Yes, your hypothetical cases are so damning that I should change my opinion of judging while you are free to almost entirely avoid mentioning my actual citations to real world instances. What ever happened to the fact based community? Can’t you at least pretend it was a hypothetical and then respond to it?

But since you insist on engaging ONLY in theory, how about this:
Living constitutionalism in the US seems intentionally designed to get big changes without soliciting big buy-in from the whole country and to do so without resorting to the amendment process.

Do you agree with that as a theoretical operational description? If not, what is wrong with this description and how would you amend it?

Your appeal to Burke in this context is confusing. He certainly wouldn’t approve of the vast centralization of power which has been the hallmark of the living constitutional program and which Burke deplored in the French revolution. I wouldn’t think he’d be thrilled by the abandonment of natural-law as something that constrained judges. I’m certain your understanding of Burke is deeper than mine (and I’m not being sarcastic), but I think it is difficult to divorce Burke from natural-law. And the living constitution idea as played out in the US is extremely allergic to natural-law concepts. It is possible that they try to smuggle them in the back door, but they certainly aren’t interested in having them identified as such. Burke on the other hand has the idea firmly in the bedrock of his thinking. I have difficulty identifying an analytic method that so completely rejects the notions of natural law as being much of a descendant of Burke.

Under the current jurisprudence, the phrase “[have the power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, means that Congress can regulate any good found in the United States even if it is never bought, sold, traded, never crossed or intended to cross state lines, and has no noticeable effect on a national market.

Sebastian, for crying out loud, that’s the right wingnut version of contemporary commerce clause jurisprudence. It bears just about as much resemblence to actual contemporary commerce clause jurisprudence as Sarah Palin’s version of the health care reform bill, “death panels” and all, bears to the actual bill. You’re a smart lawyer and an ERISA specialist–you know better. Spouting this kind of nonsense is beneath you.

John Holbo/Sebastian:

From the perspective of my philosophical interests, one of the more interesting and worthwhile colloquies I’ve read here or anywhere in a long time. So far… :)

Stuart: SECOND TAKE: “..almost by definition..” Almost??

I ain’t no Commerce Clause guy, but didn’t Sebastian just describe the holding in Wickard?

No. Read the darn opinion–it says nothing of the sort.

Surely almost by definition nothing is below a lawyer if they think it helps their argument?

Sorry you want to rule out catagorically the posibility of an ethical lawyer, which I (and in my experience Sebastian) try to be.

@79: And if not, won’t competition in the free market drive the ethical lawyers out of business?

(Although, in fact, the market in lawyers is not completely free, not just because of the bar exam, but because of bar associations, which enforce rules of ethics. Maybe they’re on to something…)

Well, I’m lazy, so I’m reading what Raich said Wickard said:

Of particular relevance here is Wickard v. Filburn, 317 U.S. 111, 127-128, 63 S.Ct. 82, 87 L.Ed. 122, where, in rejecting the appellee farmer’s contention that Congress’ admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee’s own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself “commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

So while Sebastian weaselled a bit on whether Wickard’s wheat itself would have a noticeable effect on a national market — it wouldn’t — “failure to regulate that class of activity” arguably would (rational-basis test).

Sorry, I meant to ask: do you think if you’d chosen to be an unethical lawyer, it would give you an edge?

Jeez, I don’t know. I see unethical people in law and other professions doing well for themselves; I also sometimes see their bad karma catching up with them. On the whole, I’d rather try to be ethical, and sleep relatively well at night.

Mostly I find these discussions tedious. About the only way you get good judging is to appoint/elect good judges (ie, one who will rule the way I want).

With regard to the death penalty ban, I have pointed out to SH a number of times that what the court was saying was that there was substantial evidence that the manner in which the States were applying the death penalty failed to meet minimum constitutional standards. On a factual basis the Court was right then and probably would still be so today (although some states are trying to do more about regularizing the process whereby the prosecution decides to seek death).

Somehow, though, the discussion never gets to the utterly insane but conservative decisions. Like the idea that an individual can steal a video tape and (due to his prior convictions) serve life in prison, but a corporation cannot be subject to punitive damages that destroy the corporation. Or 11th Amendment jurisprudence, which has gutted the ability of people to sue states. Or “national security” privileges used to hide governmental negligence. Or the very idea of corporate personhood.

Show me one major liberal decision where a conservative joined the majority and wrote something along the lines of “I join the majority due to my originalist view of the Constitution” and I might believe that the Court’s conservatives occasionally have an originalist spasm. Show me a line of cases where that happens, and then I’ll believe that there are true originalists on the Court. Until then, they’re just a bunch of conservatives voting their preferences.

Sebastian, what Holbo and I (#25) and others have been trying to say is this: your framing of this as elites-vs-masses, of constraint-vs-license, is simply not true–it’s not how it works in practice. What originalists refuse to acknowledge is that for constraint to exist–for objective meaning to exist–you need a consistent practice of dispute resolution, one thick enough to give sufficient data points to derive general rules from, and one incentive-compatible enough so that the decisions are followed on the ground (because otherwise the contrary practice will offer a countervailing example). Originalism might actually work fairly well in a majoritarian parliamentary system. But because we have an old and very rigid constitution, it doesn’t work here–and by ‘work,’ I simply mean, offer a method for resolving disputes according to incentive-compatible and predictable constitutional constraints. There are two somewhat different reasons for this:

1. In practice, the Court has a limited ability to police the system, and the members of the Court will be appointed by politicians in light of the latter’s interests. So, first, any theory of interpretation has to be evaluated under the assumption that it will only be used by judges who are seen as acceptable to the current ruling coalition. And that means that you’re not going to see judges who will rule the Soc Sec Act, Medicare, the administrative state tout court, 1964 CRA, FDA, Controlled Subst Act, and the like, unconstitutional–despite the fact that they all might well be, from an originalist standpoint. We will only ever see “faint-hearted originalists,” as Scalia puts it. So already, whatever constraint provided by the original meaning applies only to a subset of issues–those not controversial enough, or not anticipated ex ante, to factor into appointment.

2. Fine, but this applies just as well to LC views; only relatively mainstream types are appointed, no matter how unconstitutional the mainstream is. The problem is that every difficulty with LC methods–which is to say, take text, history, precedent, structure/function, and yes, moral argument, insofar as it’s implicated in the others, and try to discern what the existing rule is, then apply it to the instant case–applies *just as strongly* to 150 or 220 years ago, when there was just as much bitter disagreement about things (Alien & Sed. Acts, debates about presidential dismissal power, Bank controversy, &c.). In fact, the problems are much less tractable, because, A, as Hamilton well understood, meaning is only made clear through its application in sundry cases (e.g. precedent, which originalism treats as something that can be discarded at will); and B, there are all the evidentiary & epistemological problems of doing history (esp. as an amateur). To expand on this 2nd point: to construct a usable rule of law, you must articulate a pattern that others will be able to follow faithfully. But old rules, that use old language, and were formulated with old examples, are going to be at a disadvantage in being correctly “picked out” by modern rule-followers. Which is one reason we need contemporary precedent to concretize the rule, to make it accessible to contemporaries. It’s related to the Kripke/Wittgenstein problem–because logic alone can’t uniquely identify a rule from a limited number of examples, we have to rely on a shared sense of what counts as ‘similar’, a ‘good argument,’ etc. And common-law lawyers are *much* less equipped to do this with 150/220 yr old texts than they are with cases and doctrine.

What this means, then, is that when you anchor the authority of the text to its original meaning, you *destabilize* the ongoing practice, because you license every generation to go back to the well of (amateur!) historical revisionism. Holbo brings in a nice comparison here (also Postema, Levinson): which is more consistent in doctrine, Catholicism or Protestantism? The simple fact that you have to ask, “which Protestantism?” gives you the answer right there. And, hey, that’s fine for Protestants, if what matters is saving individual souls, and getting to the Truth of the Word. But constitutional constraint *isn’t like that*: it’s about articulating *shared, enforceable rules*. Ultimately, everyone must interpret for himself, true: but the facts of American lawyerly training, political appointment & enforcement structure, and human psychology present a strong case against recommending such constitutional protestantism.

“Living constitutionalism is a more honest description of what actually goes on, whereas originalism involves more sleight of hand. ”

I think this is the crux of the problem with the discussion. Living constitutionalism in practice in not a more honest description what actually goes on. And this is precisely my frustration with your refusal to even lightly engage in a discussion of the actual practice. Even aside from contradicting the text itself, cases like Roper (and please note that I’m pointing out a case from the current era NOT only from the Warren court) exhibit very few to none of the traits which you talk about in a Burke-style organic growth:

A) It wasn’t respectful of long term precedent (it contradicted the entire history of the death penalty in the US except for the 4 year period when the Supreme Court banned the death penalty);
B) It wasn’t respectful of short term precedent (it contradicted the directly on point case from the last time the Supreme Court looked at the issue which at the time was only 15 years old);
C) It didn’t reflect a new social consensus on the death penalty;
D) It didn’t reflect a new social consensus on the level of responsibility that 16-18 year olds could have for pre-meditated murder (in fact it contradicted the social consensus trend where MORE states were moving toward authorizing whatever their own maximum penalty was);
E) It did not exhibit deference to the legislature;
F) It seems to be generally supported by those who ascribe their ideas of jurisprudence generally in the living constitution arena, so it isn’t just a weird rogue opinion thing;

If it helps your analysis, please pretend that it is a hypothetical, I’m only noting that it is real in case other readers care.

Would you agree that this has little to do with living constitutionalism as you have described it?

I feel like I’m being fair to the living constitutionalist idea in raising this case. I don’t believe it is considered an oddity in the living constitutionalist camp. I don’t believe it is strongly criticized by anyone in the living constitutionalist camp (in fact I can’t think of ANYONE who even lightly criticized it from the living constitutionalist camp, but the world is very large so I’ll stick with “it seems to be well accepted”).

It seems to me that living constitutionalism *in theory* would find this kind of case a deeply troubling. But in reality, so far as I can tell, they don’t. It contradicts pretty much all of the particulars of how a Burke-influenced living constitution should operate according to your *theory* as described (which I’ll admit has been frustratingly sparse). But in practice, Roper is pretty much considered run-of-the-mill.

I can’t agree that living constitutionalism *as you describe* has much in common with “what actually goes on”.

I have a comment about Roper in moderation.

@93: there are separate issues here that you’re conflating: deference to legislatures/executives/states, vs. what counts as input in ascertaining constitutional rules. Admittedly, they connect somewhat, at least for the LCist, because established practice is a legitimate factor in that second task. That said… First, as we’ve seen with Heller, Sovereign Immunity stuff, and (potentially / in dissent) the challenge to the independent counsel / pending Peekaboo case, originalists are just as willing to remove things from political consideration. You can say “but they’re just enforcing the constitution faithfully,” but that’s just begging the question–what they’re enforcing is one particular, contested, constitutional vision. As it turns out, the Rehnquist Court struck down more federal statutes per term than any previous one, though of course we can go No True Scotsman here, with some fairness. The bottom line is that when you take a comparative look at states and other countries, deference to political branches is largely a function of the ability those branches have to ignore/overturn the rulings, rather than claims about method. No court is completely constrained, no court has complete discretion.

And of course “constraint” has many meanings. Often national majorities invite courts to bring outlying regional majorities into line; this is largely the story of the growth of US judicial supremacy (http://pup.princeton.edu/titles/8427.html). Constraint of executives is different from constraint of legislatures. And even w/ legislatures, there’s a difference between the current legislative preference vs. the enacting legislative preference.

The conservatarian-originalism stump speech throws together 2 different complaints–the nature of constitutional objectivity/constraint, popular sovereignty–and is wrong on both. Insofar as method matters to determinacy, I’ve already given reasons why originalism faces all the difficulties of LC, *plus* those posed by historical distance. Insofar as method matters to popular sovereignty, originalism invests *old* popular majorities with authority, effacing the sovereignty of the current demos.

There are interesting arguments to be had about how to improve constitutional determinacy, & how to make the system more democratic. But the originalism debates are an evasion.

“originalism invests old popular majorities with authority, effacing the sovereignty of the current demos.”

While living constitutionalism ignores both old and new popular majorities.

The Roper majority opinion says explicitly that the Court’s own precedents, with the exception of Stanford v Kentucky, indicate that the Court in the area of the death penalty is to exercise its own independent judgment, relying on various pieces of information, about society’s “evolving standards of decency.” Therefore your statement “in direct contradiction w previous and recent Sup Ct precedent” seems wrong. If the majority of the population doesn’t like the decision, they can overturn it via constitutional amendment. In this sense death penalty jurisprudence may be quite severely anti-majoritarian, but that seems appropriate given the penalty’s unique characteristics. The old rule may have been clear for over 200 years, but that in itself is not dispositive. For other remarks on Roper, see my comment at 87, making some of the same points as Chris at 95.

Francis, does Clarence Thomas’ Washington State Grange v. Republican Party majority opinion fit the bill for a textualist ruling against what seems like his natural inclination?

One of the defects of originalism is that it pretends that moral argument (mentioned by x. trapnel above) is irrelevant to adjudication of constitutional issues. In fact moral argument often is relevant, or at least unavoidable, and justices are going to find ways to align their votes, at least a certain percent of the time, with their underlying views about what is ‘shocking to the conscience’ (or their particular consciences). Thus if you think, as the majority seems to have thought in Roper, that is unconscionable to let a jury decide, in effect, that a 17-year-old is a sociopath when the Diagnostic and Statistical Manual prohibits psychiatrists from making such a diagnosis, you are going to be inclined to look for evidence that will allow you to rule that the juvenile death penalty violates the Eighth Amendment.

However, “the heavy weights of text and precedent and generally conservative norms around everyone’s ankles” do operate as constraints on all judges, no matter their moral philosophies or “partisan interests,” which partly explains why courts more often lag behind where the societal consensus is rather than get out in front of it. One can find exceptions to this generalization, and Roper may be one of those exceptions (I’m not sure), but generally courts in the U.S. are conservative institutions, regardless of which judges are sitting on them. Despite certain ‘activist’ periods such as the Warren era, I suspect that the history of the Supreme Court supports this claim.

“(If you ask me, there should be more amendments, not less.)”

Well in that we certainly agree. But I strongly suspect with the progressive living constitution project under way we won’t have any more amendments (at least not progressive ones, we might have anti-progressive ones).

“Even aside from contradicting the text itself, cases like Roper . . .”

Is there something in the text of the Constitution that mandates executing 17-year olds? Because I must admit I missed that.

I strongly suspect with the progressive living constitution project under way we won’t have any more amendments

Realy? Because the “progressive living constitution project” dates back at least to John Marshall–hell, it dates back at least to Sir Edward Coke–and it seems that the Constitution has been amended several times during that period.

*long-time lurker de-lurking*

Sebastian,

If the death-penalty cases are the historical test that you believe the living constitution philosophy flunked, then the race cases are the historical test that originalism has flunked. Look at Dred Scott, in which Chief Justice Taney relied on the alleged original meaning of the Constitution to hold that African-Americans could not be citizens, a viewpoint that was a) monstrous, and b) flatly wrong (as the dissent pointed out, free blacks were citizens in many states when the Constitution was adopted). Or with the affirmative action cases, it’s as clear as any issue can historically be clear that the original meaning of the Civil War amendments allowed for affirmative action. (Contemporaneous legislation by the Reconstruction Congresses, such as the Freedmans’ Bureau Act, provided benefits based on membership in “the African race”.) Scalia and Thomas don’t even attempt an originalist defense of their anti-affirmative-action views, apparently kicking over originalism in the affirmative-action cases because it produces a result contrary to their prefered political outcome. And let’s not even get into the originalist view that the Civil War amendments protect corporations, but allowed for racial apartheid.

*re-lurking — and this has been a terrific discussion*

Sebastian, so according to your account of their position progressives argue that it is permissible to amend the constitution without, erm. amending it? That really does not sound like an unattractive view at all, I must admit. How silly these liberal lawyers are!

Sebastian: to sway an elite cadre of already like-thinking judges … isn’t as legitimate as bothering to convince the populace that your change is a good idea

True, important, and well-said. But for better or worse (obviously worse, I would say) convincing the populace of anything requires colossal amounts of money, for reasons the framers of the Constitution could not possibly have foreseen (ie, the invention of mass media and the corporate public relations industry). So unless you’re content to leave the amendment process (and by extension, popular sovereignty), which you keep recommending to us, wounded and bleeding (which, as John pointed out above, is where it is), then I don’t see how you can oppose McCain-Feingold or something like it. (The principle, never mind the details.)

Yes. They do call it that. The Bush administration also called what they did harsh but lawful interrogation instead of torture. What people call what they do when they are doing what they want isn’t particularly dispositive of anything.

I don’t think you quite get my point. You said that living constitutionalists “want a particular narrow elite (supreme court justices) to be able to invest NEW principles with constitutional significance so that the majority doesn’t get to speak to them”. But that’s not what they want. They want to be able to extend the old principles to unfamiliar fact situations in a way they find reasonable. *You’re* the one who says that they occasionally (or perhaps even routinely) go beyond this and make up new principles, not them. Even if you’re right, it doesn’t change what they want; it just means that what they want may have consequences they’re not aware of.

If I buy gasoline, I don’t necessarily want millions of barrels of oil to be spilled into the Gulf of Mexico — even if the spill is, in some sense, a consequence of my decision to buy gasoline. (In fact, there are lots of complicating factors, but gasoline buying — in general, if not mine in particular — certainly plays a prominent role.) That would be an unreasonable extension of the meaning of “want”.

“Why should the original intent of the framers of a text be more important than the intent of those who ratified the amendment? Or those who voted on it?”

It shouldn’t. I don’t have much need to get into the brains of original intent. But I do think that the meaning of the text as it would have been understood at the time of the ratification is important.