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

by John Holbo on May 12, 2010

Igor Volsky rounded up some conservative muttering. This bit seems to me a bit off, however:

But the GOP can’t ask Kagan to be both a constitutional originalist and an opponent of the new health care law. In fact, given the long-standing Supreme Court precedent surrounding the federal government’s ability to regulate interstate commerce, should Kagan agree with Republicans’ claims that the lawsuits violate the 10th amendment, she would be seen as a judicial activist.

The point, rather, should be that conservatives can’t ask Kagan to be a constitutional originalist – and decide the health care case in the negative on that basis – without highlighting the fact that originalism gives no weight to precedent and is not an attitude of deference to the legislative branch. There’s no guarantee the original meaning was what precedent has long said it is. It would not exactly be a surprise if legislators today are doing things the framers didn’t have in mind.

‘Let justice be done, though the heavens fall’ is supposed to be the motto of the judicial activist advocate of a ‘living constitution’; but the more usual sort of ‘living constitution’ attitude is slightly backwards-looking Burkeanism: respect precedent. Rule out the former, you rule out the latter. ‘Let a 200-year old conception of justice be done, though the heavens fall’ is not a better way to keep the heavens from falling and is, in fact, plausibly more likely to let them fall. (It isn’t all that preposterous that strict originalism would rule out paper money, after all. There are a lot of words you might use to describe the court unilaterally ruling that all US dollars are not legal tender, but ‘restrained’ is not high on that list.) 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 not to say that originalists can’t find ingenious ways to square the circle, making space for precedent by adding sophisticated additional premises and superfine epicycles to their philosophies. Scalia has done so: “I’m a conservative, I’m a textualist, I’m an originalist, but I’m not a nut.”

Originalism is a philosophy of fiery revolution, wrapped in a rhetorical shell of keeping everything the same. (That’s what American conservatism is, too, in a nutshell. That’s why Americans are philosophical conservatives but operational liberals, come to think of it. But maybe that’s too much for one post.)

{ 121 comments }

1

rea 05.12.10 at 2:15 am

Scalia has done so: “I’m a conservative, I’m a textualist, I’m an originalist, but I’m not a nut.”

Well, he got that one 3/4 right.

2

Dr. Hilarius 05.12.10 at 3:00 am

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.

3

John Holbo 05.12.10 at 3:04 am

Well, just to be clear: ‘I’m not a nut’ is code for ‘I’m not quite serious when I say things like ‘I don’t think it’s a living document, I think it’s dead. More precisely, I think it’s enduring. It doesn’t change. I think that needs to be orthodoxy.” Just because you think it should be ‘orthodoxy’ doesn’t mean you think you should think it. Just that you should say it with a straight face. Orthofacie?

4

pv 05.12.10 at 3:22 am

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.

5

Patrick 05.12.10 at 3:53 am

pv- The theories are incoherent. Its gets worse, too. I can remember reading Justice Thomas arguing that his goal was to find the original meaning of a passage, and then immediately borrowing from the textualists and declaring that 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. Only then, after he had proclaimed this rule to exist, did he try to use originalism to find the independent meanings of two passages that originally and textually seemed very clearly redundant.

I was never able to convince anyone in my law school that this was contradictory, even though I’m still convinced that I’m right. The latter rule about redundancy is just so commonly used that the fact that its completely incompatible with a mission of finding original meaning seemed to be just incomprehensible to people immersed in the world of legal thinking. And regrettably the legal world tends to be a bit hide bound and rules oriented, so the old pedigree of that bit of textual formalism turns it into the proverbial water that fish cannot see.

6

John Holbo 05.12.10 at 4:03 am

In partial defense of originalism, there are numerous flavors and more or less sophisticated proponents are aware of this: the major variants – what the author(s) meant by their words; public meaning of the language at the time; what the author(s) intended to do. The first and third are intentionalist originalisms – of different sorts; whereas the second is textualist originalism. Many originalists flavor some sort of allegedly judicious blend. It’s not actually a contradiction in terms to be a textualist and an intentionalist originalist. But, of course, once you start to make things complicated like this, one of the major advertisements for the view – namely, that it keeps things blessedly simple and bright-line clear – evaporates.

That said, originalists spend a lot of time just trying to strawman the alternatives. ‘Living constitution’ gets treated as though it is equivalent to judges just being able to make stuff up. Which would, indeed, be bad. Then it is hinted that originalism must really be the thing that occupies the space actually occupied by a different sort of, more sensible ‘living constitution’ view.

7

Sebastian 05.12.10 at 4:43 am

For my money textualism makes the most sense. If you are going to bother with a written Constitution with the possibility of amendments , it makes sense that the words should mean what people at the time would have understood the words to mean. Hilzoy from obsidianwings had a number of good posts that I can’t find right now where she shows that this still allows for quite a bit of updating–I think she uses the example of the word ‘poison’. Just because people in the 18th century didn’t understand that some particular substance was poison when they wrote a law doesn’t mean that they didn’t understand the concept of poisonous. So if you write a law outlawing ‘poisoning’ someone, it automatically updates to new scientific understandings of which substances are poisonous.

“‘Living constitution’ gets treated as though it is equivalent to judges just being able to make stuff up. “

It kind of is. It is almost impossible to pin a living constitutionalist down to what would be out of bounds in interpretation. You can get them to agree not to directly contradict the words, usually, but even then you can’t always be sure. (See for example the 8th amendment ‘cruel and unusual’. Whatever limits that phrase has, it definitely doesn’t include outlawing the death penalty as other parts of the same Constitution specifically talk about procedural safeguards in capital punishment cases. Furthermore they can’t fairly appeal to ‘changing community moral understandings’ as opposition to the death penalty in the US has never hit 50% [which is probably too low a threshold for constitutional change of moral understandings that get locked in by judges anyway]. But most living constitutionalists that I’m aware of don’t seem to have much trouble with thinking the death penalty should be constitutionally outlawed by judicial decision–see especially Marshall and Brennan and Tribe.)

Living Constitutionalists also seem to have very little regard for the amendment process. I’m not even sure what they really think it is for, as apparently almost any justice claim can get through judges instead. (If not, try pinning down which justice claims could not be resolved by judges–not which ones are politically unlikely to get resolved by judges, but which ones are clearly out of the bounds of their interpretation scheme and would require an amendment). It puts living constitutionalists in the fairly weird position where only procedural things like the date of elections need amendments.

8

Sebastian 05.12.10 at 4:51 am

“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.

9

bay of arizona 05.12.10 at 5:04 am

One good part of originalism is when they cite the SCOTUS interpretration of the 14th amendment as controlling but ignore the radical republicans who actually wrote it.


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’.

So the harping on “unelected judges making up law” was completely tangential to the main point of judicial decisions we don’t like but we will pretend we have some kind of principles as opposed to evil liberals who make shit up.

10

Patrick 05.12.10 at 5:08 am

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.

11

John Holbo 05.12.10 at 5:23 am

“It kind of is. It is almost impossible to pin a living constitutionalist down to what would be out of bounds in interpretation.”

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. Otherwise not. Seriously, there is no reason why ‘living constitution’ arguments are any less interpretively ‘bounded’ than originalist ones. There is just a much room for interpretive squish and ingenuity in both areas. How not? (Is there any reason why we have to be Derrida on a bad day, every day, if we are not originalists? Obviously not.)

As to ‘judicial restraint’ – Patrick pretty much said it.

12

Sebastian 05.12.10 at 6:30 am

“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.

13

John Holbo 05.12.10 at 7:11 am

Sebastian: “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.”

OK, this means you couldn’t meet my challenge, Sebastian. You said that ‘living constitution’ readings are in no way constrained by the text. But here you admit the contrary. How does the fact that you can’t make the 2nd amendment be about ice cream not refute your theory? I would also be very curious how you could mandate a discriminatory prohibition against ice cream for septuagenarians on the basis of the 14th Amendment. I must have missed that penumbra.

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? Most judges aren’t willing to look like the kid, and those who just don’t care how they look? Well, what are you going to do to stop them, short of removing them from office?

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). But do you think it’s totally impossible to say shameless, implausible stuff about history? If not, then how is making people couch their shameless implausible claims in terms of some obligatory Just-So story about the Framers even going to slow them down, let alone stop them? If the worry really is that people will haul off and be totally shameless and implausible, will just brazen it out, how the hell is insisting on a veneer of originalism going to stop them? I just think you are not being psychologically shrewd about this, Sebastian. 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. But why should this be (to put it mildly).

“If the constitution always allows the preferred policy of the judge.”

Why should the Constitution do that, on the ‘living constitution’ view? OK, I’ll propose another test for you. Suppose you are a pacificist and a judge. You want to construe Article 1. section 8 such that it is unconstitutional for the US to declare or wage war. Give me an interpretation of the terms of the Article that makes this plausible. 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. And if we are simply dropping the requirement that judges have to be plausible, then there is nothing stopping the originalist from writing implausible history.

14

Sebastian 05.12.10 at 8:57 am

“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.

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 at least it does happen.

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?

“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).

15

alex 05.12.10 at 11:14 am

Isn’t the whole problem here that American have become accustomed to the idea that you can make the Constitution do what politics won’t? I mean, the dam’ thing can be amended, can’t it? And if you don’t have the votes to change it, trying to alter its political effect by hairsplitting interpretational games is just a weak substitute that quickly devolves into an eternal game. I don’t believe any other country treats its founding document as such a bizarre combination of fetish and dishrag, sacred object and all-purpose tool.

16

Tim Wilkinson 05.12.10 at 11:17 am

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.]

17

JSE 05.12.10 at 1:05 pm

“Just because people in the 18th century didn’t understand that some particular substance was poison when they wrote a law doesn’t mean that they didn’t understand the concept of poisonous. So if you write a law outlawing ‘poisoning’ someone, it automatically updates to new scientific understandings of which substances are poisonous.”

But this kind of reasoning is applied very selectively. People in the 18th century didn’t understand that some particular phenomenon (infrared radiation off a wall) could allow the police to obtain information about the contents of your house without going inside; per Scalia’s opinion in Kyllo vs. US, the meaning of the word “search” in the Constitution automatically updates to new scientific understandings of which police actions are searches. On the other hand, people in the 18th century didn’t understand that some particular procedure (statistical sampling) could give an accurate count of the population; per Scalia’s dissent in Utah v. Evans, the meaning of the word “enumeration” in the Constitution does NOT automatically update to new scientific understandings of which numerical procedures are enumerations.

It’s hard for me to avoid the sense that “what the Constitution means” is just plain underdetermined by the text. Or, for that matter, by the text + contemporary writings of the Founders + legal precedents from other countries etc. The Justices have sympathies, they read the words on the page in a way designed to support those sympathies, they make decisions based on these readings; it’s incoherent, sure, but once they’ve done their level best to be self-conscious about their sympathies, what else can they do?

18

scathew 05.12.10 at 1:28 pm

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

19

rea 05.12.10 at 1:30 pm

Sebastian’s arguments are almost self-refuting. His example of what is permitted to a court, under his philosophy: a law outlawing “poisons” can be applied to a substance whose poisonous properties were unknown to the drafters. His example of exceeding the boundaries of the permissible: considering the death penalty to be “cruel and unusual,” because the death penalty was routinely applied during the time of the founders. 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.

Thing is, we can demonstrate that during the lifetimes of the founders attitudes toward what punishments were too cruel to be tolerated in a civilized society changed. The old brutal medieval punishment of hanging, drawing and quartering was applied in the youth of many of the founders to members of the losing side in the Jacobite Rebellion, and never again, although it remained the statutory penalty for treason until 1870. Similarly, burning at the stake was not abolished in the UK until 1790. I strongly suspect that the founders would have regarded either of these punishments as “cruel and unusual”. Under Sebastian’s reasoning, they could be consittutional implemented in the US today, because they had not been abolished by statute at the time the 8th Amednment was drafted.

The bottom line here, as I know from many previous discussions with Sebastian on this topic, is that Sebastian does not believe that judge-made law is legitimate. The founders, steeped in the common law tradition, had different notions.

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rea 05.12.10 at 1:43 pm

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?

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John Holbo 05.12.10 at 2:00 pm

Sebastian quotes me: “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. ”

And replies: “When have I argued that living constitutionalists have to be particularly plausible?”

You deny this in a normative sense? (Which was obviously the sense in which I was asserting it. It’s obviously false that all living constitutionalist claims actually ARE plausible, after all.) 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? Do you affirm, then, that it’s not a problem, so long as the potentially implausible/false claims are originalist? Just made-up history stuff no one can take seriously? You can’t think that, but then what are you talking about?

Are you just objecting that many ‘living constitutionalist’ claims or judgments in fact are bad. But how is this an objection to the philosophy? Is there any philosophy of judging that precludes bad judgments being made in its name? 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. The ‘living constitution’ should really be a pretty conservative philosophy of judging, and it usually is. (More so than originalism, in principle, but not always, in practice.)

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? ‘Gee, I wish this crap Constitution were better written, so we could get what we need. But whaddayagonnado?’ That’s not how decisions get written, in my limited experience. On the other hand, there are plenty of cases in which justices of all sorts have granted Congress the right to make stupid laws, in effect. So obviously they aren’t in the habit of simply legislating their preferences lightly, as you suggest.

22

Anderson 05.12.10 at 2:45 pm

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.

23

rea 05.12.10 at 3:05 pm

The irony is that Sebastian and his cohorts are believers in a “living Constitution” as much as anyone else, but they won’t acknowledge it. The point is, Sebastian et al. reject the founders’ views of jurisprudential epistemology.

The founders all believed in a common law system, in which what we moderns call “making” law was something the courts did all the time. To the founders, however, a common law judge did not “make” law–he discovered, declared and applied natural law, even if the result was novel. Even the freethinkers and deists among the founders thought in terms of natural law (“endowed by their creator with certain unalienable rights”). See Erie Railroad v Tompkins, 304 U.S. 64 (1938), for the final extinction of this view.

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

24

kid bitzer 05.12.10 at 3:11 pm

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.

25

x. trapnel 05.12.10 at 3:12 pm

Sebastian: the elephant in the room here is, well, the whole point of this post: precedent. Originalism is *necessarily* in tension with it, since it believes precedent to have authority only insofar as it is faithful to the original meaning–as you put it, it insists that Article 5 amendment is the only way to change constitutional constraints. But the claim that this makes originalism less discretionary than LC is equivalent to the claim that common-law systems are inherently more discretionary than civil-law ones, and is just as specious–there’s a very good argument that respect for precedent does a better job of constraint than does licensing each judge to go back to the well of amateur historical interpretation.

One reason: what do we teach future judges in law schools? How to discern legal rules from cases. What do we NOT teach them? How to discern ‘public meaning’ from an incomplete historical record of temporally, culturally, and politically distant times.

Orig. insists that an originally-unconstitutional arrogation of powers outside Art. 5 amendment, no matter how successfully incorporated into a well-understood system of rules and constraints and how accepted by the people, should always be at the mercy of judges to overturn, based on their amateur history. LC realizes that, given an extremely old and rigid A5 process, this is crazy–it’s a license for destabilizing precisely that which gives objectivity to constitutional rules, which is the system of precedent doctrine.

Originalism claims to be about fidelity to the ideal of constitutionalism, but because it’s about fidelity to an old, fragmentary, and largely imaginary constitution, it is in fact a theory quite hostile to constitutional *determinacy*–and thus constraint–in our actually-existing system.

26

kid bitzer 05.12.10 at 3:14 pm

@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.

27

chris 05.12.10 at 3:16 pm

The biggest problem IMO with Sebastian’s death penalty argument is that the word “cruel” calls for a judgment call. It is possible to be objective about whether the law protects different groups equally or whether or not a given law restricts free speech (although in practice both of those clauses have acquired numerous unwritten exceptions over the years), but it is not possible to be objective about which treatments are cruel. Someone has to judge, and I don’t see why societal standards aren’t at least as good a yardstick for cruelty as any other.

Also, regarding his policy vs. Constitution challenge: gun control. Many liberals would support, as policy, gun control measures that would clearly (and in their own opinions) be unconstitutional under the existing 2nd amendment. (There is also considerable disagreement over exactly how far the 2nd amendment itself extends.) But there isn’t much public discussion of laws with no prospect of passage, whether or not they would be constitutional if they did pass.

While we’re on the subject of the 2nd amendment, why is it that “poisoning” can be updated to include modern poisons, but “arms” isn’t updated to include tanks, helicopter gunships, or cruise missiles? If your answer is “because that would be nuts”, then aren’t you admitting that changes in circumstances, in this case weapons technology, can sometimes go beyond the bounds of what the original provision should be considered to include?

And if so, then why aren’t all self-reloading weapons, or even all cartridge-based weapons, similarly over the line? The Founders couldn’t possibly have contemplated one person putting out the same number of bullets as, say, the Virginia Tech shooter in that amount of time. An individual can’t perform suppressive fire with Founder-era weapons, and in fact temporarily disarms himself every time he shoots, which fundamentally changes the dynamics of a situation like that.

Also on the subject of policies liberals would support if only they weren’t unconstitutional, I think if _Citizens United_ had been a mainstream interpretation of the Constitution rather than radical judicial activism, you’d probably see a substantial number of liberals advocating that the Constitution should be amended to allow laws limiting political activity by corporations, instead of (or in addition to) simply arguing that _Citizens United_ was wrongly decided.

28

x. trapnel 05.12.10 at 3:25 pm

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.

29

rea 05.12.10 at 3:31 pm

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

I am fairly certain that Sebastian, to his credit, holds no such view, although some on his side of this debate do.

30

Anderson 05.12.10 at 3:35 pm

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.)

31

kid bitzer 05.12.10 at 4:00 pm

@30–
” legislatures can’t draft for shit”
right–most canons of construction presuppose a comprehensiveness of mind, a clarity of expression, and a determinacy of purpose that have never been found among human legislators. this is part of why i suspect that their real antecedents, once we go back through the legal hooker and back through the henry ii, will be found in attempts to lay down principles for interpreting divine legislation, whether these be in the augustinian, philonian, or talmudic traditions.

32

chris 05.12.10 at 4:03 pm

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.

33

chris 05.12.10 at 4:04 pm

Er, their purpose. Damn typos.

34

Anderson 05.12.10 at 4:15 pm

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).

35

Patrick 05.12.10 at 4:19 pm

Anderson- I completely understand that this rule has a lengthy legal pedigree. I’m saying that this canon of judicial interpretation, if you intend to find the original meaning of a passage as it was understood by human beings, is obviously stupid and counterproductive.

If you are an originalist who focuses on original intention of the authors of a law, then using this canon would require you to believe that it is genuinely, factually true that no writer of statutes ever writes redundantly. Imagine a statute where this has occurred, being interpreted by this form of originalist using this canon: the originalist would be required by the canon to reject out of hand the interpretation of the statute that he professes to be hunting.

Things aren’t any better for the originalist who focuses on the meaning as it was understood by the public. If it is humanly possible to read a statute and think that something in it is redundant, then this canon precludes interpretations that may in fact be correct from the perspective of the originalist.

Things aren’t much better for textualists, either. Do you believe it is possible for the actual, textual meaning of a passage to include a redundancy? My legal writing professors sure did, and their red pen witnessed to me on the subject. Perhaps I should have told them about this canon.

Eh, I don’t want to oversell this. There are legal philosophies for which this canon makes perfect sense. Its just that it makes no sense at all for a legal philosophy rooted in determining some sort of objective, real world fact like what actual human beings did or believed.

I think that makes logical sense to most people outside of the legal arena: Ask them if its possible that someone might write poorly. When they say yes, ask them whether its a good idea to assume that someone never writes poorly if your goal is to figure out what they meant by something they wrote.

36

Sebastian 05.12.10 at 5:05 pm

“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.

37

rea 05.12.10 at 5:17 pm

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.

Well, yes, but what you are doing, whether you recognize it or not, is changing the meaning of the Constitution as understood by the founders to reflect the contemporary circumstance that few present-day judges feel constrained by natural law, at least in the sense that Justice Story did. You no longer trust judges in light of present-day epistomology, so you want to impose constraints on interpretation that the founders did not recognize. You are what you fear.

38

rea 05.12.10 at 5:26 pm

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.

39

rea 05.12.10 at 5:33 pm

Because the document itself tells us that certain interpretations would be too far.

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.

40

Substance McGravitas 05.12.10 at 5:41 pm

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.

41

kid bitzer 05.12.10 at 6:08 pm

suppose you accept hilzoy’s poison case, and then consider the following hypothetical:

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.”

so one and the same piece of legislation has stated a general principle that rules out poisons, and has stated an explicit permission of mercury, based on the false belief that it is not a poison.

we know now something that the legislators did not know then, sc. that mercury is a poison. the fact that mercury is mentioned as a non-poisonous substance in the original piece of legislation reflects ignorance on the part of the legislators.

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.

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.

it tells us that they wanted capital punishment to be permissible *if* it was not cruel and unusual. it does not tell us that they wanted it to remain permissible if it was discovered to be cruel and unusual.

now, the case of toxicology and penal theory is not perfectly parallel, and the notion of “discovery” in the chemical and moral worlds is somewhat different. but to block this thought experiment, one must deny that we can *ever* come to know more about moral facts than we previously knew, and that this knew knowledge can *ever* show that we previously were applying a general principle in a faulty way. and this position will have some hard questions to answer about, e.g. , slavery.

42

pv 05.12.10 at 6:25 pm

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

43

LizardBreath 05.12.10 at 6:31 pm

41: Nicely said. I was just coming in to make a similar point from a different angle — that it is possible for a document to be self-contradictory. Imagine a constitution that prohibited cruel and unusual punishment, but in another provision mentioned that there was a class of crimes punishable by a protracted process of flaying, in which two square inches of skin were removed without anesthetic every day until the subject either died or had no more skin to remove. It seems clear to me that it would be impossible for interpreters of such a constitution to both give effect to the prohibition against cruel and unusual punishment and to the implicit recognition that protracted flaying was permissible. At that point, you have to pick which provision to give effect, and which to override.

Capital punishment may not be quite that clear, but a parallel argument is possible.

44

Anderson 05.12.10 at 6:46 pm

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.

45

Patrick 05.12.10 at 7:20 pm

Tad cocky, but justified.

If your stated goal is X, and the tool you’ve chosen clearly precludes accomplishing X, mockery is deserved. Somewhere you have failed.

In reality most originalists (or other practitioners of clearly defined legal theories that have explicitly stated goals) tend to be formalists of a sort first, and then originalists second. Which would be fine, if only they’d give an honest defense of originalism that acknowledges this. If your goal is to find the original meaning as understood by the drafters, or by the public, then do so. Don’t claim that this is your goal, defend your project on the merits of achieving this goal, and then completely disregard this goal at the outset by layering on a set of presumptions that have every chance of preventing your goal from ever coming into sight.

It really is a simple matter. If your goal is to find what real life humans thought or believed, and at the outset you filter all information through an assumption that humans always behave in a way which they do not in fact always behave, then your project is compromised. Fatally.

46

chris 05.12.10 at 7:28 pm

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.

47

Thoth 05.12.10 at 8:18 pm

holy half-baked hypothetical ratman

the central principle of the legal business is…to promote the legal business. justice, rights, even science (ie the mercury example) shall not interfere with that

48

rea 05.12.10 at 8:35 pm

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.

49

Anderson 05.12.10 at 8:42 pm

If your goal is to find the original meaning as understood by the drafters, or by the public, then do so.

Okay, maybe we’ve been talking past each other. I’m talking about garden-variety rules of interpretation that are so taken for granted, they don’t even seem ideological (tho of course everything is ideological, etc. etc.). Call it textualism if you will; in a weak sense, all judges are textualists, because their job is to explicate texts.

(Bitzer is surely right that these rules come out of biblical scholarship, or maybe even Alexandrian.)

Even “originalists,” I think, begin with the text; the issue is what to do when the text isn’t clear. That’s why we hear from them chiefly in constitutional law, b/c the Constitution — by its nature, as John Marshall observed in I think McCulloch — does not spell stuff out very often.

And again, “weak originalism” is not controversial, as *one* source for figuring out what the text meant. But it’s not the only source, of course, and here perhaps is where we agree.

… It’s always bugged me btw that Scalia, “originalist,” won’t even sign onto parts of SCOTUS ops that consider legislative history. I’m sure he’s explained the distinction in his mind somewhere, but happily I have never been a student of his work.

50

kid bitzer 05.12.10 at 8:44 pm

“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.)

51

kid bitzer 05.12.10 at 9:12 pm

huh. i speculated about a link between statutory construction and scriptural exegesis, and i mentioned hooker offhand. here’s a quote from hooker’s wiki page:

“In [ hooker’s magnum opus], it was argued that reason and tradition were important when interpreting the Scriptures, and that it was important to recognise that the Bible was written in a particular historical context, in response to specific situations: “Words must be taken according to the matter whereof they are uttered.””

that looks a lot like a canon of construction, here being used as a principle of scriptural interpretation, but by someone who exercised a huge influence on the anglo-american legal tradition.

(it’s also not clear to me, without reading the quote in its full context, how hooker wants to make that canon cut any ice–what does it rule in and what does it rule out. but this is the way of canons of construction.)

52

Sebastian 05.12.10 at 10:08 pm

“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.

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rea 05.12.10 at 10:29 pm

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

Not really. There were no executions in the US 1967-1977, and Furman v Georgia was decided in the middle of that period, in 1972. Even today, when we have 50-60 executions a year, that’s not very many compared to the number of 1st degree murder convictions a year. Execution in ths country is a matter of very bad luck.

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John Holbo 05.12.10 at 11:26 pm

Sebastian: “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.”

‘Plausible’ means something like believable, credible, apparently sensible, the sort of thing one would expect. Suppose a law professor asked you to craft a ‘plausible’ decision that references the commerce clause, i.e. a decision that would comport with contemporary standards of jurisprudential reading of the commerce clause. That is, you are being asked to take ‘commerce’ in the precedent-based broad sense. (You can of course still be an originalist, in your heart of hearts. The assignment is just to craft the sort of decision that will be deemed acceptable, by this standard of judging acceptability.) Does this sort exercise just not compute for you? That is, there is just no way for something to be ‘plausible as a non-originalist reading’ – even though I am granting you the right to add, ‘but I’m an originalist, so of course I reject it’?

“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.”

How have I removed the text? This was the challenge I made to you earlier. To find a way around the text by making the 2nd Amendment about ice cream. You failed that challenge. How do explain that failure if I am removing the text (which should, in theory, have left you perfectly free.)

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logern 05.13.10 at 12:30 am

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.

James Madison wanted checks and balances to protect rights from the tyranny of majorities not minorities. (anti-populist – keeping the becks, limbaughs, and palin’s away from it)

Hah. perhaps that’s a joke. perhaps not.

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Kenny Easwaran 05.13.10 at 12:37 am

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.

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Sebastian 05.13.10 at 12:52 am

It is somewhat annoying that you engage in highly theoretical challenges that don’t engage any of the actual examples I’ve given. Have you somehow read past the very concrete examples?

Furthermore, I apparently foolishly gave in and responded to your challenge on Article 1 Section 8 (the War Power). Did you find my ‘interpretation’ of section 8 on the war power implausible in the sense that you are using?

“Plausible’ means something like believable, credible, apparently sensible, the sort of thing one would expect. Suppose a law professor asked you to craft a ‘plausible’ decision that references the commerce clause, i.e. a decision that would comport with contemporary standards of jurisprudential reading of the commerce clause. That is, you are being asked to take ‘commerce’ in the precedent-based broad sense. (You can of course still be an originalist, in your heart of hearts. The assignment is just to craft the sort of decision that will be deemed acceptable, by this standard of judging acceptability.) Does this sort exercise just not compute for you? “

Of course I could do that. In fact I’ll do a good summary right now: 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.

But that is a summary of current jurisprudence, what does that have to do with ‘plausible’? A summary of current jurisprudence on abortion in 1960 would never have caused anyone to believe that it would be elevated to a Constitutional right within 15 years. A summary of current jurisprudence on the Death Penalty in 2003 wouldn’t have guessed that 17-year old murders had a constitutional right to avoid the death penalty (especially as that very case had been litigated about ten years before).

Of course I can summarize current jurisprudence. Why do you think that is pertinent to the discussion? Summarizing current jurisprudence doesn’t help explain WHY Supreme Court justices suddenly decide to try to outlaw the death penalty after hundreds of years of doing it, nor does it explain why they would make the implausible claim that US society had suddenly come to a new consensus on the subject which authorized them to do so. Summarizing current jurisprudence doesn’t explain why Justice Kennedy can issue a stunning turn around less than 15 years after the Supreme Court decided the point directly. Summarizing current jurisprudence doesn’t explain why Brennan decided to pretty much give up on ‘obscenity’ (because it would chill protected speech to police most of the outer limits of the free speech clause–so worries about obscenity must be put aside) while his living constitutionalist heirs consider restrictions on speech a month before elections. Are we going to see a resurgence of interest in allowing obscenity restrictions from the left wing of the Court? Of course not, because the logical connection between being extremely zealous in protecting core political speech, even to the extent of allowing formerly unprotected obscenity has nothing to do with how such cases will be actually decided.

It isn’t *plausible* that the same jurisprudence which is so worried about protecting core political speech that it can’t handle obscenity could also think for a minute that McCain-Feingold would be ok. But it is nevertheless true.

[To be clear I’m somewhat open to the idea that it really is so hard to police the boundary cases of free speech that we should pretty much abandon policing obscenity restrictions to avoid harming the political speech which is core to the First Amendment. (The Brennan/Warren/Fortas view). And my reading of most living constitutionalist views is that they agree. But you can’t really have that AND believe that almost any restriction on political speech is ok.]

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Sebastian 05.13.10 at 12:54 am

“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?

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engels 05.13.10 at 1:05 am

Sebastian, if you feel that elected politicians ought to determine the meaning of every word in a statute then you appear to be in favour of abolishing the judiciary.

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John Holbo 05.13.10 at 1:35 am

“Furthermore, I apparently foolishly gave in and responded to your challenge on Article 1 Section 8 (the War Power). Did you find my ‘interpretation’ of section 8 on the war power implausible in the sense that you are using?”

No, because my pacificist is a complete pacificist. No war. Period. Not even defensive. But this is really just picky-picky stuff. The challenge, for you, is to explain how – if I have, as you say, ‘removed the text’ – the text can still be constraining you. Doesn’t that seem a bit spooky and mysterious? If the text is just gone, as you say, then how is it still here, making it hard for you to construe Article 1 section 8 as mandating total pacificism? (Or a ban on ice cream for 70 year olds.)

You are frustrated that I am dealing with the issue theoretically, but it is a theoretical question. You, apparently, want to argue that the ‘living constitution’ approach is bad in theory because it can go badly in practice. But this makes no sense. First, because every theory can go bad in practice. Second, and following on the first, because the test of a theory is not how well it goes if, by hypothesis, someone is misapplying it. That is, if someone is just playing Derrida with the text, the results will not be plausible. But that is not an argument against the ‘living constitution’ approach. Similarly, if someone is just makin up history, the originalist results will not be plausible, even as originalism. But the fact that someone can just make up history is not a good objection to originalism, in theory. Because originalism does not tell people to do bad history. It tells people to do good history.

You want to know what rule I will apply to determine how the ‘living constitutionalist’ rule will be applied. Well, it’s complicated. A matter of judicious balancing of factors. I could equally well ask you what the rule is for applying the rule that one must determine ‘original’ meaning. It’s complicated. A matter of judiciously balancing factors. Superficially, it might seem that originalism is more ‘restrained’, ‘conservative’, less likely to go jackrabbiting after some totally unexpected bolt from the blue judicial whim or self-indulgence. But this appearance is an illusion, and the fact that originalists are totally free to sweep away precedent, in theory, is an important clue as to why this is. If a judge wants to be a jackrabbit about it, he or she can do so just as easily as an originalist. Just tell a plausible story that highlights those elements of the Framing that suit your preferences, and downplay the others. Pass over the bits that don’t suit your purposes and glom into those that do.

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Sebastian 05.13.10 at 2:01 am

“No, because my pacificist is a complete pacificist. No war. Period. Not even defensive. But this is really just picky-picky stuff. “

Quite.

“You are frustrated that I am dealing with the issue theoretically, but it is a theoretical question.”

No it isn’t a purely theoretical question. In theory a complete dictator can run a perfectly good and just society. *In freaking practice* that never really happens.

In *theory* perfectly fair judges wouldn’t need a constitution or precedent at all. They would just always make the right decision.

In practice, having constraints is important. Having an ethos where reference to the constitutional text is secondary at best, doesn’t make for much of a constraint.

“You want to know what rule I will apply to determine how the ‘living constitutionalist’ rule will be applied. Well, it’s complicated. A matter of judicious balancing of factors. “

Ummm, yeah that is rather important.

“Superficially, it might seem that originalism is more ‘restrained’, ‘conservative’, less likely to go jackrabbiting after some totally unexpected bolt from the blue judicial whim or self-indulgence. “

Yes, formal constraints aren’t perfect. That isn’t the same as saying that they don’t do anything, which is what you seem to be saying.

“If a judge wants to be a jackrabbit about it, he or she can do so just as easily as an originalist. Just tell a plausible story that highlights those elements of the Framing that suit your preferences, and downplay the others.”

And with an originalist you can engage the elements of the framing and the text. With a living constitutionalist you say what? You refuse to tell me.

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Yarrow 05.13.10 at 2:09 am

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.

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John Holbo 05.13.10 at 2:42 am

Sebastian: “Yes, formal constraints aren’t perfect. That isn’t the same as saying that they don’t do anything, which is what you seem to be saying.”

No, you are confusing me with you. You are the one saying that there are no constrains in the living Constitution case. I have pointed out that this is obviously false – a defect in your view that you have not, so far, seen fit to address and take account of: a thing I would encourage you to do at the earliest convenient date. I am saying there are constraints in both cases but they are a bit different. There is one important axis along which originalism is notably unconstrained, but ‘living constitutionalism’ is more constrained. Originalism does not need to be constrained by precedent or deferential to the legislative branch. Living Constitutionalism is supposed to be both. (Not that it always is, but it is supposed to be. Whereas originalism is not even supposed to be.)

“And with an originalist you can engage the elements of the framing and the text. With a living constitutionalist you say what? You refuse to tell me.”

Well, just for starters, there’s the text and the framing. What’s wrong with reading the text? You keep bizarrely trying to sock it away somewhere out of view. But why should a Living Constitution-type thinker want to do that?

In general, you want me to specify a rule for when judicial judgments that involve complex balancing acts are ‘plausible’ and when they aren’t. Well, unfortunately there isn’t one. If there were a different approach that were better in that regard, that might be a reason to favor the other approach. But, obviously, originalism just gives us a different complex balancing act – we are equally lacking in a strict rule for applying the rule in this case. If two approaches, A and B, share defect X, the fact that A suffers from defect X is not a reason to favor approach B.

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John Holbo 05.13.10 at 2:58 am

Let me try that again. I think, Sebastian, you may be committing the fallacy of assuming that, since originalism mandates exclusive attention to text/original intention, and since originalism is opposed to regarding the text as a living document, that those who favor the latter approach mandate NON-attention to the text and to the framing. 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. (Scalia worries about all this stuff, too, of course. He just doesn’t like to say it in so many words.)

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. My response is not that this isn’t a problem. Obviously it can be. But it is obviously going to be just as much a problem for originalism. First, because history is hard, so there’s plenty of room for pushing and tugging, hermeneutically. Second, there’s the ‘but I’m not a nut’ escape clause. Which lets in precedent and deference to the legislature, and acknowlegement of changing conditions in the back door.

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Yarrow 05.13.10 at 3:19 am

Second, there’s the ‘but I’m not a nut’ escape clause.

Wait — does this mean we can’t deport BP?

Damn.

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Sebastian 05.13.10 at 3:52 am

“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.

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Sebastian 05.13.10 at 4:19 am

“There is one important axis along which originalism is notably unconstrained, but ‘living constitutionalism’ is more constrained. Originalism does not need to be constrained by precedent or deferential to the legislative branch.”

I probably shouldn’t distract attention from my above post which is more important. But Do you really believe that living constitutionalism in practice is constrained by precedent? I don’t see much evidence of that at all. See for example Roper v. Simmons (2005). Through the entire history of the republic, states operated under the rule that they could execute murderers who killed while they were under the age of 18. That is more than 200 years of inferential-through-practice precedent. (Which btw is another huge complaint I have with living constitutionalists: they claim to be attentive to social understandings, but will pretend that if something was common practice and so obvious that no one bothered taking it to the Supreme Court before that it counts as nothing). In 1989 the Supreme Court ruled on the exact legal rule of Roper in Stanford v. Kentucky. So that is also 16 years of explicit precedent along with the 200 years of implict-through-practice precedent. And then what? Wiped away under an extremely sketchy appeal to changing social consensus based on an alleged social judgment that 17 year olds can’t be subjected to the same ultimate punishments as adults. The reason I say ‘extremely sketchy’ is that even among states with no death penalty, there had been a move *toward* allowing full adult penalties.

And again, my policy choice is against the death penalty for the most part. But that isn’t the same AT ALL as removing the question from normal political consideration by a drastic change (not bought into by the populace) in what our elected legislatures can and cannot consider.

That is neither deferential to precedent, nor deferential to the legislature. Yet the decision was lauded by pretty much anyone I can think of from the living constitution side. So it

A) Isn’t faithful to the text;
B) Isn’t faithful to the history of the text;
C) Isn’t faithful to broad precedent (200+ years);
D) Isn’t faithful to the direct precedent (16 years);
E) Doesn’t reflect a new social consensus;
F) Removes the question from normal political channels so the decision is incredibly difficult to change, and does so without buy-in from the country as a whole;
G) Seems to be generally supported by the living constitutionalist camp, so it isn’t just a stray rogue judge.

If it weren’t for G) you could maybe claim that this is just a one-off accident. But considering G), it looks to me like this is living constitutionalism as it is intended to work. Do you disagree?

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John Holbo 05.13.10 at 5:37 am

“Yes, but you don’t have to be the sneaky-sort. You just have to be human.”

Yes, that is Scalia’s best defense, I agree.

“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.”

Yes. I feel that way about Randy Barnett’s book, too. Not that originalism isn’t interesting, of course, but it’s a standing invitation to a kind of wish-fulfilment fantasy. It’s like the Society For Creative Anachronisms for devout libertarians.

“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.”

Do you think this is true of Edmund Burke’s writings on the British Constutition. You think he is really secretly Tom Paine all along, just feigning conservatism? Wouldn’t it be better to say that the Living Constitution view is, officially, a kind of Burkeanism. But, in practice, there’s actually nothing stopping the Warren Court from being the Warren Court.

Suppose we look to the Warren Court and say: never again. Let it be so. So we wisely appoint five Randy Barnetts to the Court. Five rock-ribbed originalists. Ah, NOW we are safe from people just sort of projecting their preferences into the text. Because we are going to insist on subordinating personal policy preferences to an appreciation of the Framers original vision and intentions. Pull the other one, it’s got bells on. Quite literally the only thing we have done it make it marginally easier, if anything, for the same damn thing to happen again: because now the Court is not even obliged to make little noises about how what it is doing fits with precedent. Screw all that.

Look. Originalism is to the legacy of the Warren Court and the Constitution as Martin Luther is to the Catholic Church and the Bible. It’s fine to regard the Church (Warren Court) as corrupt, but its naive to suppose that a fiery fight to restore ‘original meaning’ will result in anything but schismatic intensification of the impulse to read your own spiritual predispositions into the text. (Oh look! Now Northern Europe is covered in 500 different little Protestant sects. And, oddly, every single one seems to think IT has got the original meaning right.) You might actually find schismatic intensification of conflict preferable to schlerotic hegemony of one tendency. But you shouldn’t prefer it on the ground that its more ‘restrained’, less ‘activist’ or anything like that. Martin Luther was none of those things, and neither is originalism. The function of originalism is to lay waste to widespread institutional corruption. So: do you think the job of judges is to look out at American society and lay waste to widespread corruption. Or do you think they should be more restrained, less activist. The choice is yours.

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John Holbo 05.13.10 at 5:48 am

As to your indignant protestations about specific cases: since I haven’t studied the ones you cite the only gracious thing I can do is grant all your complaints, for argument purposes. (It isn’t logically impossible that you could be right about all this, so I guess I have to grant the possibility.) But I don’t see why I should change my overall philosophy of judging as a result.

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Sebastian 05.13.10 at 8:14 am

@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.

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John Holbo 05.13.10 at 10:09 am

“I guess I should apologize for being specific?”

You can if you are feeling regretful for some reason. I don’t think there’s anything wrong with complaining about decisions you don’t like, but I really don’t see that they are evidence that there is anything wrong with what I am saying, even if you are right.

“Yes, your hypothetical cases are so damning that I should change my opinion of judging”

Actually, I think they are, and you should.

“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.”

No. Living constitutionalism is a more honest description of what actually goes on, whereas originalism involves more sleight of hand. But, of course, harping on the fact that the constitution is a living document may have the effect of accelerating its growth. Deceptively pretending otherwise, to retard its growth, may be regarded as a better outcome, but now you have a sort of motivated irrationality argument. It would be better for justices to believe in originalism, or at least maintain they believe it, even though it is not true. I can see defending that view. (I suspect that Scalia actually believes that, though I couldn’t say for sure.)

As to Living-Constitutionalism-in-the-US – well, I’m not sure I would want to distinguish that as a philosophy in its own right. I think what you are objecting to is not really what I am defending but more or less progressive impulses in the judiciary over the past 60 years or so. The issue of whether the Constitution should be regarded as a living document can and should be separated from one’s personal approval of the direction in which various more or progressive judges have nudged various bits of the law over the last half century. That’s what the Burke point is supposed to show. He would probably approve of the general judicial philosophy but then say something like ‘where the law, in her majesty, should be like a slow growing oak, shading the placid cattle of commerce and civil society, the noxious fertilizer of speculative philosophy has have made of it an atrocious riot of strangling, choking vines and thorns … etc. etc.’ But he wouldn’t say: therefore the law should be regarded as Framers’ Meaning, preserved in amber.

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rea 05.13.10 at 11:30 am

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.

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Stuart 05.13.10 at 11:38 am

You’re a smart lawyer and an ERISA specialist—you know better. Spouting this kind of nonsense is beneath you.

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

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virgil xenophon 05.13.10 at 12:21 pm

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… :)

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virgil xenophon 05.13.10 at 12:24 pm

Stuart: ..”almost by definition..” LOL!

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virgil xenophon 05.13.10 at 12:27 pm

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

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Anderson 05.13.10 at 1:05 pm

Sebastian, for crying out loud, that’s the right wingnut version of contemporary commerce clause jurisprudence.

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

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rea 05.13.10 at 2:00 pm

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.

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Henri Vieuxtemps 05.13.10 at 2:42 pm

Does an ethical lawyer have a chance against unethical lawyer?

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chris 05.13.10 at 3:07 pm

@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…)

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rea 05.13.10 at 3:28 pm

Does an ethical lawyer have a chance against unethical lawyer?

Usually. I’ve been known to win a case or two.

82

Anderson 05.13.10 at 3:51 pm

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).

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Henri Vieuxtemps 05.13.10 at 3:52 pm

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

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rea 05.13.10 at 4:03 pm

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.

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rea 05.13.10 at 4:19 pm

I’m reading what Raich said Wickard said

The biggest expansion of the scope of the commerce clause comes not from judicial interpretation, but from the fact that in the modern world, most goods are traded in interstate markets, something that was not the case at the time of the founders. Imagine, for example, how it would distort the market for cars, if any car you bought had to meet federal mpg standards, unless you bought the car from a factory located in your state.

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Francis 05.13.10 at 4:56 pm

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.

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LFC 05.13.10 at 5:04 pm

@67: Wiped away under an extremely sketchy appeal to changing social consensus based on an alleged social judgment that 17 year olds can’t be subjected to the same ultimate punishments as adults.

After a look at the majority opinion in Roper v. Simmons, I don’t think this is a fair description. This is the opinion in which Kennedy referred to the UN Convention on the Rights of the Child, ratified by every country in the world except the US and Somalia, and the practices of some other countries w/ respect to juvenile punishments and execution in particular. (This drove conservatives wild but there was nothing wrong w/ it.) The opinion also notes that psychiatrists cannot (in the sense of: the DSM does not allow them to) diagnose antisocial personality disorder in anyone under 18. If trained observers cannot make this judgment, should we rely on a jury’s judgment that in a particular case a 17 yr old should get the death penalty? Seems like a defensible majority opinion to me.

I am not too impressed with the notion of “implicit-through-practice precedent” — i.e., states had been executing juveniles for 200 years. “Implicit through practice precedent” as a category means basically “practice,” and as such would incorporate lots of practices that once were lawful but now are not, from slavery to de jure segregation to the poll tax to bans on interracial marriage to prohibitions on the sale of contraceptives, etc.

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x. trapnel 05.13.10 at 5:13 pm

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.

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kid bitzer 05.13.10 at 5:24 pm

sola scalia!

(and could someone pull my comment out of moderation on the “two points” thread?)

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Sebastian 05.13.10 at 5:25 pm

“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”.

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Francis 05.13.10 at 5:30 pm

oh, one more example. Back when Belleisles book was first getting a lot of discussion over at Volokh, I learned that the originalist interpretation of “arms” was “individually carried military weapon”. How much of modern 2nd amendment jurisprudence focuses on that issue?

It seems that the correct interpretation of the 2nd A is that anyone can own a M-16 (and an RPG, and a small surface to air missile), but recreational weaponry is subject to state regulation. How many people think that the Court would invalidate the laws that prevent people from owning SAMs?

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LFC 05.13.10 at 6:03 pm

I have a comment about Roper in moderation.

93

Sebastian 05.13.10 at 6:17 pm

“But constitutional constraint isn’t like that: it’s about articulating shared, enforceable rules. “

Yes but a huge portion of living constitutionalism in practice seems to care little about the ‘shared’ portion. They take vast tracts of politically contested items and then remove them from political consideration unless you can get an amendment. I don’t see any reason why that should be the norm instead of the reverse (that you leave vast tracts of politically contested items in the politically contested sphere until you can get an amendment).

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x. trapnel 05.13.10 at 7:31 pm

@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.

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chris 05.13.10 at 7:32 pm

@93: Anything can be politically contested. Allowing the “political branches” (as if the SC isn’t?!) to decide all “contested” questions is a recipe for making the Constitution a dead letter and abandoning _Marbury_.

_Brown_ was politically contested. _Miranda_ was (and still is!) politically contested. The case whose name I can’t remember that adopted Brandeis’s famous dissent in _Olmstead_ to establish the exclusionary rule was politically contested. _Loving_ was politically contested (and so, emphatically, are its sexual-orientation successors, which haven’t yet made it to SCOTUS). Judicial activism? Maybe. But without those decisions and others like them, what constitutional rights would anyone have in practice, not merely on paper?

_Brown_ and _Loving_ in particular also illustrate the folly of a “traditional practice” rule: a traditional practice that violates the Constitution can’t be allowed to vindicate itself by mere longevity, or we would be bound by our ancestors’ failure to challenge it.

The purpose of the Constitution is to establish certain principles that hold whether the majority of the moment supports them or not, and under _Marbury_, the Court is responsible for enforcing that.

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Sebastian 05.13.10 at 9:03 pm

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

While living constitutionalism ignores both old and new popular majorities.

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Sebastian 05.13.10 at 9:15 pm

“The purpose of the Constitution is to establish certain principles that hold whether the majority of the moment supports them or not, and under Marbury, the Court is responsible for enforcing that.”

Quite. But we aren’t talking about how to enforce old certain principles. We are talking about how living constitutionalism wants 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.

Again, Roper is very demonstrative. The old rule was clear for 200 years. It was explicitly re-affirmed by the Supreme Court 16 years before Roper. There was extremely scant evidence that the popular will had changed, and in fact a fair bit of evidence that it changed in the opposite direction from what Justice Kennedy claims so far as societal attributions of criminal responsibility for murder or other serious crimes to 16 and 17 year olds goes. And so far as I can tell, it only gets support from those who believe that living constitutionalism is the proper mode (see for example Tribe “The Invisible Constitution” so far as anyone can understand it, which probably isn’t that far).

Why should that question, which has been within the purview of the states since the Constitution was created, suddenly be wrenched from the legislative branch, in direct contradiction with previous and recent Supreme Court precedent?

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LFC 05.13.10 at 10:12 pm

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.

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Sebastian 05.13.10 at 11:42 pm

“If the majority of the population doesn’t like the decision, they can overturn it via constitutional amendment.”

Yes, this is always a possibility. I’m well aware of that. I’m not sure why the default for major changes should be “oh well, if they screwed up you can do an amendment, but we don’t actually need to positively do our own amendments for changes”.

“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. “

You assert that it seems appropriate, do you have specific reasons in mind? Especially since the 200 year history not only disagrees with the current rule but also disagrees with your idea that the majority can’t figure it out on their own.

And what counts as dispositive is the whole question. So far as I can tell on the issue, nothing counts as dispositive. John suggests (I think, though he is really unclear) that living constitutionalism values organic growth, legislative deference, and precedent. None of those particularly help you in the Roper case. It shows zero deference, is an elitist addon, and completely dismissive of precedent.

“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”

Yes that is what they say. That doesn’t make it the case, nor does it make it logical. And ‘with the exception of Stanford’ is a rather enormous exception as Stanford is directly on point and was incredibly recent.

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Sebastian 05.14.10 at 12:14 am

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?

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John Holbo 05.14.10 at 12:53 am

Sebastian: “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.”

Well, first it’s worth saying that many of Burke’s own judgments exhibited few to none of the traits characteristic of Burkean organic-style stuff. Sadly, when the interests of the rich and powerful were at stake – e.g. the Enclosure Acts – he was pretty content to let new law ride roughshod over tradition.

But getting to Roper: if the case is as you describe it, then it is a bad decision. Decisions shouldn’t exhibit these characteristics. If people praise it, as you describe, then that praise is misplaced. But then I am just going to turn it around and use the badness of this decision as a further argument why I am right. I realize this looks incredibly weasely but it actually isn’t. Suppose someone tried to use Bush v. Gore as a proof that Scalia has a bad judicial philosophy, i.e. originalism. Well, it’s pretty clear that he wasn’t following his own philosophy in that case. He just wanted to vote for the Republican. That’s a bit shameful – and I think everyone thinks so, pretty much – but it isn’t an argument against originalism. An originalist can use the badness of that decision as evidence FOR originalism. But really I think it’s more an argument for the truth of realism, in the IR sense: Justices will tend to find a way to vote their partisan political interests.

Now here we do get to a motivated irrationality argument, because if I think realism is descriptively inevitable, hence normatively permissible, then I just say ‘judges, just vote for whateverthehell you want,’ and preaching that – if it happened to be the case that Holbo was really likely to be listened to – would degrade judicial culture. So how about them apples?

To put it another way: you might object that ‘originalism’ may be a noble lie, but ‘living constitution’ is also a noble lie. The former is just the noble lie conservatives tell, to get what they want. The latter is the lie progressives tell. If that’s so, then allowing one lie, not the other, tilts the table to the progressives, and I can hardly expect conservatives just top acquiesce in that. Now, I think in fact that I can’t seriously expect conservatives to sign onto any philosophy that flagrantly tilts the table against what they would regard as desirable outcomes. That’s a given. But I do still think that ‘living constitution’ just is a better description because, on some level it is just trivially true, whereas on some level the alternative is just trivially false. It’s like trying to argue about whether English is a living language. The living language side is just going to win. Culture and society and economics and life and morals and etc. all change, and so the chance that law is going to stand utterly straight and unchanging amidst all that is dead zero. Result: conservatives, if they want to be philosophically plausible, have to go with some ‘the times they are a-changin’ back’ living constitution philosophy of their own. We are a center-right nation!

To put it yet another way: I’m not actually a pure realist about what judges do. I don’t think they are all complete partisan hacks. Indeed, one of the main motivations of a judge, writing a decision, is precisely NOT to LOOK LIKE a complete partisan hack. For two reasons 1): judges have pride, and they would be ashamed. 2) if you look like a total hack, no one will respect your decision as precedent anyway, and you won’t even be able to secure the desired partisan result in lasting fashion. If somehow 5 Derridean jokers took over the court for a year and handed down a bunch of stupid stuff, the next court would just pay no attention to those decisions. And rightly not.

There ought to be something like a flop-sweat standard. The plausibility of a decision is inversely proportional to the diameter of the sweat-stains on that black robe. (OK, bad analogy. You can’t see armpits on a robe. But you see my point.) Now, what you are really look for is not a judicial philosophy that prevents people from pushing their partisan aims – can’t be done – but a philosophy that compels them to be visibly working hard to make the results look good, if they are really pushing it. Being an originalist didn’t stop Scalia in Bush v. Gore. But being an originalist meant that writing that decision had a cost to him personally, in terms of philosophic dignity. If he doesn’t want to go down in history as the court’s most flagrant hack, he can’t be going out there and doing that, week after week, month after month.

Now, I can’t honestly say that ‘living constitution’ is better than ‘originalism’ in terms of compelling judges to show their hack, partisan asses if they want to get their partisan preferences fulfilled. The cases are a bit different. In the living constitution case you can make all sorts of handwavy gestures about ‘changing standards’ which is sure helpful for covering your ass. But in the originalism case you can just sweep all the precedent into the trash, which is not without its convenient side. Also, history is conveniently a long time ago, rather than now, making it even easier to hallucinate what the ‘spirit’ of the whole thing was. Ignorance is bliss, and we are inevitably ignorant about a lot to do with the framers’ intent.

I guess I’m in favor of realism plus a judicial shame culture. I don’t think that originalism is any better than living constutitionalism in that regard. It may be worse, because a lot of the originalist work inevitably ends up getting done just by ‘but I’m not a nut’ – which is not a very transparent or precise standard. And whenever you have non-transparency of rules for deciding, you have greater freedom to do what you like. And, anyway, it’s annoying to have to be spouting noble lies when it would be nicer just to tell the truth, so: living constitution.

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John Holbo 05.14.10 at 12:56 am

By the by, I’m glad people are enjoying the thread. I am, too.

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Sebastian 05.14.10 at 1:28 am

“But really I think it’s more an argument for the truth of realism, in the IR sense: Justices will tend to find a way to vote their partisan political interests.”

Well this brings up a completely different set of problems. If that is really the case, why do we have justices deciding the Constitution at all? If we mostly just have judges enacting their partisan interests, we can have elected officials do that. And at least when they get a bit too hackish you can actually get rid of them, right?

I don’t see how ‘realism’ in that sense is much except for an argument against the social justice of having judges do that at all. (Which is kind of what I was getting at with Burke. His judges are theoretically always compared against natural law, which acts as a limiting factor. Take away the natural law–which pretty much all living constitutionalists do–and it is difficult to see how the rest of it makes sense).

Also, in your theory, is there any point in amendments in the modern era?

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John Holbo 05.14.10 at 1:47 am

“Well this brings up a completely different set of problems. If that is really the case, why do we have justices deciding the Constitution at all?”

Well, I may be more of an originalist than you are about this, Sebastian. But I don’t really see that there is much hope of construing the Constitution – as the Framers intended it – as not including a judicial branch. You are, of course, free to construct some sort of ‘living constitution’ argument that this branch has died of natural causes. But I’m skeptical. If it looks like a judiciary, and it quacks like a judiciary, it’s a judiciary. (Maybe it would be better not to have one, because judges are unelected officials and inevitably they are going to be a bit partisan around the margins. And something they will haul off and do something really pretty nakedly partisan. I will grant that a case might be made.)

“If we mostly just have judges enacting their partisan interests, we can have elected officials do that. And at least when they get a bit too hackish you can actually get rid of them, right?”

See the second half of my comment. I agree that if legal decisions mostly just naked realism, there wouldn’t be much point to having judges as a check on naked partisanship (but we would still have them: see above). But I don’t think that’s actually the case. We have realism plus heavy weights of text and precedent and generally conservative norms around everyone’s ankles, keeping them from jack-rabbiting all over the place. That means that judges aren’t going to the trouble of dragging those weights flop-sweatly a great distance unless they think it’s really really important. So the flop-sweat measure is not actually just a measure of hackiness, it’s also an index of how much justices think a case being decided one way is really really important. Such that they are willing to put their reputations as non-hacks on the line.

“Also, in your theory, is there any point in amendments in the modern era?”

Yes, absolutely. Do you really think that the 19th Amendment doesn’t even make it any easier to establish that women should have the vote? I think it shortens the proof considerably, at the very least. That’s no small thing. Also, it’s better to do things by amendment, if possible. It’s more democratic. So that’s two things in favor of amendments. (If you ask me, there should be more amendments, not less.)

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John Holbo 05.14.10 at 2:02 am

From another angle: do you actually have a practical plan for reducing the degree to which realism is a true descriptive theory of the behavior of the judiciary, Sebastian? If your plan is to force people to espouse originalism, then I don’t think that will have any tendency to achieve this ostensible end, and it might well make things considerably worse along this axis. Anyway, I think you – and other originalists – really want something else: namely, you want to lay waste to perceived cultural corruption of the judiciary with a flaming sword of righteousness. I get the appeal of that sort of thing. But it’s not the same as wishing for a restrained, above-the-fray judiciary. Not by a country mile. Restraint always starts from where you ARE, not from where you wish to be. The fact that your most powerful judicial impulse is, I take it, an intense dislike of where we are, means you aren’t actually in favor of an especial degree of restraint – never mind that you have no practical plan for getting it.

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LFC 05.14.10 at 4:44 am

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.

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ChrisB 05.14.10 at 5:20 am

The fundamental problem with originalism is that it works at all only in situations like Luther’s – that is to say, where you’re dealing with unchangeable gospel and thus don’t have an amendment process. Anyone who’s ever been involved in legislative drafting at any level knows that people take enactments as a whole. The people who voted for the constitution voted for the whole constitution, including the racist bits, and wouldn’t all have voted for it if the post-civil-war amendments had been around at the beginning. It’s impossible to construct a historically plausible set of views for the Founding Fathers as a body that incorporates later amendments, and it’s impossible to construct a psychologically plausible crosscentury average set of views that believes in the amendments in the sense that the Civil War generation understood them and everything else in the sense that the Founders understood them. Changing your mind about one thing entails changing your mind about other things.
Which throws us back on the text; not what they believed, but on what they said. Which we must read as the emanation of a set of views that would make it plausible to believe that text.

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Sebastian 05.14.10 at 6:46 am

“(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).

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John Holbo 05.14.10 at 6:53 am

“We might have anti-progressive ones.”

And that would be a kind of poetic justice, if it came to that. (Or poetic injustice, from my point of view.) But mostly it’s just too hard to pass Constitutional amendments.

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rea 05.14.10 at 10:15 am

“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.

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Sebastian 05.14.10 at 10:41 am

I can’t agree. Progressives used to try to amend the constitution with amendments.

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Civil-Rights Lawyer 05.14.10 at 1:56 pm

*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*

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chris 05.14.10 at 2:24 pm

We are talking about how living constitutionalism wants 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.

You’re talking about that, but you’re being dishonest.

What you call “new principles”, living constitutionalists call the extension of existing principles to fact situations not contemplated by the Founders. (Or, in some cases, enforcement of ideals the Founders preached but didn’t practice. This is why tradition isn’t much of an argument — the Founders were men, not gods, and quite capable of violating their own principles, which shouldn’t stop *us* from upholding them.)

But you don’t admit that living constitutionalists call them that, or that this is an actual argument, you just go on saying “new principles” like everyone agreed that’s what they are.

You’re attempting to declare victory by definition in the *actual* argument so that you can portray living constitutionalists as *deliberate* and dishonest legislators-from-the-bench. And in doing so, you are misrepresenting the views of your opponents in order to turn them into mustache-twirling silent-movie villains who sneer at the people as they rewrite the Constitution to match their personal preferences.

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engels 05.14.10 at 3:42 pm

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!

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Sebastian 05.14.10 at 5:23 pm

“What you call “new principles”, living constitutionalists call the extension of existing principles to fact situations not contemplated by the Founders.”

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.

“You’re attempting to declare victory by definition in the actual argument so that you can portray living constitutionalists as deliberate and dishonest legislators-from-the-bench.”

No.

My understanding doesn’t require that. My understanding is that living constitutionalism allows such a broad range of inputs to be cherry picked that it exceeding easy to self-justify almost any ruling that the judge is likely in practical reality to want, especially on the Supreme Court level where you aren’t likely to get overturned.

“Sebastian, so according to your account of their position progressives argue that it is permissible to amend the constitution without, erm. amending it? “

No. My view is that they don’t believe that any change they might want requires amendment because nearly everything they want can gamed into a ‘living constitution’. And they are completely right, the living constitutional theory ends up in the strange position of only really requiring amendments for procedural details like the date of elections or something. Anything that can be couched as a justice claim can be churned through the 14th amendment and even super-clear things like the core protected value of political speech can be shaved with appeals to ‘important government interest’. Or course that cuts both ways, once you’ve allowed ‘important government interest’ to limit core political speech, it is almost comical to resist it in torture for terrorism suspicions. (And to be crystal clear, I oppose both McCain-Feingold AND torture. Interestingly, I suspect they may both have similar practical value in achieving their stated aims).

Why were the prohibition amendments passed? Because it was understood that the Constitutional grant of Congressional power didn’t extend deep enough to allow the federal government to ban alcohol. Progressives worked around that at the time by getting a Constitutional amendment.

Now they don’t even think twice about projects of similar scope. Is there a serious push in Progressive circles for a Constitutional amendment now? Of course not. I’m not even sure I’ve heard about the ERA in a decade. Progressives would much rather just ram everything that they can’t get in elections through the court. Which makes sense. It is easier to sway an elite cadre of already like-thinking judges. But it isn’t as legitimate as bothering to convince the populace that your change is a good idea.

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geo 05.14.10 at 6:14 pm

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.)

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logern 05.14.10 at 9:25 pm

Might be of interest to some here.

Justice Kennedy from a current news story:

“You certainly can’t formulate principles without being aware of where those principles will take you, what their consequences will be,” he told an audience of about 750 at a joint meeting of the Forum Club of the Palm Beaches and the Palm Beach County Bar Association. “Law is a human exercise and if it ceases to be that it does not deserve the name law.”

http://news.yahoo.com/s/ap/20100514/ap_on_re_us/us_supreme_court_kennedy

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chris 05.14.10 at 9:32 pm

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”.

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Oliver 05.15.10 at 7:08 pm

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?

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Sebastian 05.16.10 at 12:05 am

“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.

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CJColucci 05.18.10 at 3:51 pm

We all want a theory of constitutional interpretation that (a) is intellectually-defensible; (b) has sufficient content to prescribe actual results; and (c) realistically constrains judges from just Making Shit Up. Most of us also want it to avoid unpalatable consequences, like the invalidation of most of the 20th century, though some say they don’t care about that (or even desire it) and may even believe that they believe it. I have yet to see one that meets all these standards.

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