Originalism and Precedent Revisited: Banzai as Bonsai

I’m just a practicing lawyer who don’t know nothing about no fancy hermeneutics. But I can say one thing. Whatever the merits of “originalism” over precedent, they are irrelevant in a lower court, such as Judge Vinson’s. A lower court has no choice but to follow the precedent of its superiors. That’s what it means to be a lower court.

Maybe the Supreme Court has the luxury to overrule itself upon a better reading of the written law. But lower courts cannot and do not, at least in a system of hierarchical courts.

What Ebenezer says also adds to the pragmatic argument, precedent often indicates what higher courts will decide, having been made by said courts. In these cases diverging from precedent simply wastes time and delays justice.

On your objection to an epistemological motivation for obeying precedent I think that you’re right that what I gave was an absurdly idealised picture, but here’s a more plausible variant of it. A judge might reason as follows “By my lights this is true, but by that judges lights, it is not, regardless of which of us is actually more qualified to assess these things, a reasonable and non arbitrary way of resolving the dispute is to take the word of the judge who society has invested more legal-epistemic authority in.” In other words, something like a respect for democratic procedure with the divvying up of epistemic authority.

I’m not sure that I accept that any legal philosophy which involves balancing is automatically a version of living constitutionalism- e.g my example of a form of originalism which claims that certain points of law are indeterminate whilst others are determinate, and that it is allowable to use precedent in the indeterminate cases.

Is this against the spirit of originalism? Maybe, since originalism is often portrayed in black and white terms, its in the text or its not. But it seems to me that originalism can be construed as just amounting to the claims that:

1. A siginficant number ( probably most) non trivial legal questions, even among those who make it to higher courts, have a textual resolution based on the intention of the legal framers.
2. In such cases the textual resolution is always correct, and precedent is irrelevant.

None of this excludes the possibility of precedent being relevant in select cases.

It’s may be semantically indeterminate whether what I’ve articulated is form of originalism, but I think it’s very defensible to say that it counts originalism. Obviously I’m kind of just mooting this, I think originalism isn’t tenable in the long run, and issues of respect precedent are connected to that.

Here’s another way to see it that adds to the woes of the originalist. When the framers of the constitution set out the judical branch they anticipated that it would function at common law, thus their original intent was for precedent to have power and effect. Arguably this makes originalism self refuting. If I’m not mistaken someone has propounded this view before, does anyone have the source out of interest?

Originalism works rhetorically by sorting people into two piles. Good people, with their feet on the ground, who recognize that ‘words mean things‘. And crazy folks who irresponsibly revel in a big, Derridean free-for-all and/or will seize any opportunity for judicial übermenschen to exercise untrammeled interpretive Will To Power. But the price of functionality at this rhetorical level is total non-functionality on an intellectual level.

I like the joke about there being two kind of people, people who divide people into two kinds, and people who don’t. But I can’t remember why it was supposed to be funny. Anyway, I don’t quite understand the thrust of the last sentence I quoted above. If you have originalism why do you need an intellectual level?

(Also, I don’t see why an originalist system would fail to need precedent, for one thing, how would it otherwise be possible to know who the good law-knowledgeable people were?)

The problem with Originalism after the New Deal is that if the courts wouldn’t have revisited the powers of the Commerce Clause, there would surely have been further Amendments to the Constitution. FDR wasn’t kidding around.

Reinterpreting the Commerce Clause was part of a Conservative back track to prevent the fully plausible US Socialist Revolution.

If Originalism was a judicial philosophy in the 19th and 20th centuries, we wouldn’t have nearly the same Constitution and for that you should be thankful.

James Boyle has a very tart summary of the invalidities of Original Intent, which I have placed at: Original Intent And The Constitution.

Original Intent

The Founders didn’t think that they had to devise a system of government that would allow for organic growth. They saw the states as the organic, living things, in the whole enterprise, and the Constitution wasn’t about them in any way except in carefully limiting the ability of the federal govt to strangle their developement. The federal govt was to be a dead thing, something that would not grow or change beyond the original static design, except as the states, via the amendment process, allowed. And so the fundamental law that created this dead thing, the federal govt, did not have to be given a life, expected to grow and change, any more than we expect or allow the axioms of a logical system to expand and grow.

Of course their position was fundamentaly incoherent on precisely this point. They wanted all the benefits and advantages of a Union. They called their result that, a Union. But they also left the states as that, independent states. Despite the clear example before them of what an actual union, an actual merger of 13 govts into one, would have looked like — the 1706 Act of Union that joined Scotland and England into one country — they did not, perhaps because pragmatically they could not, set up such a union. Specifically, they left the states with their own legal systems, their own armies (2d Amendment and Art IV, sec 4.), their own right of self-determination (Art IV, sec 4). But generally, they left the state govts free of all but a small specified set of the restricitions that the Constitution places on its creature, the federal govt, and left an explicit exemption to the states from any but the few specified limitations of their powers (10th Amendment).

Any need for the law to live and grow organically was left to the continued operation of the common law in the several states. They presumably imagined that this common law would continue to remain just that, common, at least in its broad provisions, purely by the operation of the common sense of mankind in inducing general principles from particular cases, or the full faith and credit provision would not have made sense. But they certainly didn’t put the federal courts, whose jurisdiction is carefully defined so as to not cover controversies between the separate states and their own citizens (between which all the significant “constitutional” controversies of our own time arise), at the top of this common law regime, as its final appeal authority.

Two processes intervened to make that scheme irrelevant. For one thing, the common law withered away. States codified the existing body of common law. Courts began being reluctant to induce new law from cases before them, deferring more and more to a top down, deductive from statute or higher court opinions, not a bottoms up, inductive, approach, from cases. As the underlying prejudice became more and more to look up to general rules to decide what the outcome in each case should be, rather than from cases to what the general rule should be, it became natural to see the Constitution, and especially the Bill of Rights, as some sort of set of axioms from which all rights were supposed to be deducible.

Secondly, the states withered away.

Of course, you can’t square the circle, and sovereignty could not remain divided in practice as it did in the Constitution. In the Founder’s own time, the new Union became the focus of govt, the living thing, while the states suddenly, and then gradually, died on the vine. The Federalists made an arrantly unconstitutional power play in the Adams administration to stifle their political opponents with the Alien and Sedition Acts. The anti-federalists, while at first turning instinctively to their 2d Amendment options and nullifying the Acts in two states, while also fomenting jury nullification everywhere, found that just winning the federal election of 1800 was a much more sure, safe and sweeping means of achieving their revolution against the Federalists. That’s what everyone since, with that notable exception in 1861, has done when faced with federal outcomes they don’t like — forget about theoretical states’ rights and just concentrate on winning the next damn federal election.

When you see states’ rights asserted today, or really any time since 1861, the assertion is never made in anything but bad faith. These people don’t want to go their own way, in the Union or out of it. They’re just forum-shopping. The appeal to the Founder’s original intent on states’ rights is just one more way to try to control the governance of the whole Union. You will not find people more rabidly chauvinistic about the US of A, more ready to call any who question its foreign policy course traitors, than these states’ rights people.

That’s the real threat posed by original intent today. These people are no longer content to chip away at the growth edges of the living thing that the fedral govt has become. The real he-originalists among them want to give the teabaggers back their functioning 10th Amendment, and make it a matter of pure irrelevance what the federal courts think about reproductive rights or the individual mandate, because, as we all know, those are matters that the Constitution leaves to the states.

The question is whether a judge like Scalia, who hasn’t, at least yet, shown that he has the hardihood to follow his originalist beliefs into the mouth of madness, has merely been restrained by the insufficiency of any one case that seeks to roll back time, to roll it back across the board. While it may be madness to try to set time back in just one case, because then the law in that matter would be at odds with the larger structure, a case that allows a wider result, a return to a whole functioning originalist system, might actually present the deeper temptation. The Tenthers are going to give him a chance to do it all in one fell swoop. All that he and Kennedy, and their two new Federalist Society colleagues (Thomas is already publically pledged to leap into the mouth of madness) have to do, is find that the 10th means that they can’t give the federal govt injunctive relief against a state law nullifying a federal law. They don’t have to find that the individual mandate is out of line with stare decisis on the Commerce Clause. They just have to assert some judicial humility and decide that the Commonwealth of Virginia has a 10th Amendment power in this matter that cannot be set aside by a mere federal court. If they do that, the walls of Jericho come tumbling down.

Here’s my main beef with the originalist. The originalist is employing an implicit theory of legal legitimacy where legitmacy flows from an initial act of ratification. Thus changes to that consitution can only be legitimate insomuch as they proceed by the method, if any, prescribed for change in that constitution.

Yet it seems to me that the accepted and institutionalised practice of a government which is open to democratic correction if those practices diverge from the acceptable ( i.e, if people really cared about the alleged overstretch of the federal government’s power here this they could always modify the commerce clause) is a much stronger source of legitimacy

Living constitutions recieve continous assent in a peicemeal fashion, when people do not modify the constitution to correct the judiciary. Dead constitutions require us to accept as binding demands which were made hundreds of years before we were born.

Shorter Brett B: “The history of all hitherto existing society is the history of class struggles”

It’s quite simple: make sure the judges circumvent those bits of the constitution that are wrong, and cleave faithfully to those bits that are right.

Two quick points. First, let’s be clear that originalists are talking about the meaning of text, not the intent of the legislators.

Second, as food for thought, this is Scalia’s response to the stare decisis question (page 159 of A Matter of Interpretation (Princeton U., 1997):

“Professor Tribe appears to believe that there is something uniquely inappropriate about the acceptance of stare decisis by an originalist. Surely not. The whole function of the doctrine is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability. It is a compromise of all philosophies of interpretation, his no less than mine. The demand that originalists ‘be true to their lights’ and forswear stare decisis is essentially a demand that they alone render their methodology so disruptive of the established state of things that it will be useful only as an academic exercise and not as a workable prescription for judicial governance.”

Originalism, consistently applied, would not be bound by precedent. (But Scalia does not claim to be a consistent originalist, quite the contrary.) Living constitutionalism, OTOH, consistently applied, would not be bound by precedent, or anything else. So it’s quite hypocritical for adherents of living constitutionalism to complain that originalists won’t respect precedent; What exactly is it that living constitutionalists respect? The whim of the moment? I can’t think of anything else.

Scalia, in that quote @24, sounds more like a living constitutionalist than those who call themselves living constitutionalists. The latter, at least, believe that the constitution provides some general framework; Scalia seems to believe that the constitution is mostly irrelevant, and, for the sake of stability, anything goes. That’s very cynical; and, I suspect, that’s how it works in real life indeed.

Or to put it in another way, we are not making very much progress if we aren’t matching the definitions up with the actual behaviours. Living constitutionalism sounds very well when defined as a bonsai, and originalism sounds very silly when defined in that manner, but before the Rehnquist court if you presented the more liberal justices with a bonsai they would hardly recognize the bonsai as matching their own jurisprudence.

And if living constitutionalism did, as John implied, mean the growth of a bonsai rather than that of a English oak, then most of the people who are today ostensibly advocating living constitutionalism would desert the concept in a heartbeat.

After all, you noted that “It is true that defenders of the ‘living constitution’ view can be sloppy in this regard, tending to talk about shapes they like as though they just ‘happened’. But this sort of self-serving convenience is not inherent in the view itself.”

The thing is, the self-serving convenience is not some incidental effect of supporting the view, it’s the reason many people support the view in the first place, because it lets them do whatever they want. A debate in which we are talking about living constitutionalism as it exists in the actual world while believing it to be a bonsai is one in which no Scotsman is defined as a true Scotsman.

Re Holbo at 25: originalism version (1) is the only one to consider. Your (2) and (3) are indefensible, and simply repeat the abandoned original intent theories. The theory has to be about meaning of the texts at the time. Otherwise, one ends up with no theory at all; the Framers’ intent is of no legal significance — a point well argued by Scalia — and of very little political significance. The process of adoption sees to that. For a good account of (1) I suggest Solum.

(I am not an originalist, by the way)

Brett @ 28:
“Living constitutionalism, OTOH, consistently applied, would not be bound by precedent, or anything else.”
Not so, at least to a Burkean, who allows for social evolution, but insists that it must have historical continuity with what went on before. If it is intellectual radicalism you don’t like, your enemy is originalism.

“What exactly is it that living constitutionalists respect? The whim of the moment? I can’t think of anything else.”

Here’s a clear counter-example: the history of the Supreme Court and its decisions. This history is a study in what living constitutionalism looks like in practice, by and large.”

You’re saying that the history of the Supreme court and it’s decisions is a history of consistent living constitutionalism? Really? That’s what you’re going with?

John, I have no doubt that, were it possible, a coherent explanation of living constitutionalism, just like a coherent explanation of originalism, would be longer than a blog comment. The thing is, I’ve seen nothing to suggest it IS possible. That is to say, I think living constitutionalism, at it’s root, IS “anarchy or whim or Will To Power or what have you.”; It’s nothing more than the refusal to be bound by an existing constitution, coupled with a lot of hand waving.

The whole thing is just a rationalization for the historical fact that President for Life FDR wanted more power than the Constitution granted him, and he doubted that the states would ratify amendments giving him the power, so he took it extra-constitutionally, by corrupting the judiciary. And politicians having the love of power they do, they didn’t want to give it back, once FDR was safely in his grave.

I mean, really: Is there anything in living constitutionalism which says, “This change would be for the better, but we can’t justify it.”? Is there anything about living constitutionalism which could drive a judge to issue a ruling he didn’t LIKE? No, there isn’t. and that’s what makes living constitutionalism just the implementation of whim over written law.

Originalism, by contrast, is just how you interpret ANY text, if you don’t have a prior determination to find it meaning something you like, regardless of what it might say. So originalism, consistently applied, DOES sometimes say that you have to rule against your preferences. And that’s key: Sometimes documents DO mean things you don’t like. If your ‘interpretive’ technique can’t arrive at a meaning you find disagreeable, it’s not really an interpretive technique, it’s a technique for substituting what you’d rather the document had meant.

That’s why the general public approves of originalism, to the point where living constitutionalists on the Court, when cases have high public salience, feel the need to pretend they’re originalists. Because the public understands originalism is just how you read things, that living constitutionalism is fundamentally illegitimate. That it represents, not a way of reading a constitution, but a decision to not HAVE a constitution.

Somewhere up the thread I commented that Scalia does not claim to be a consistent originalist. There are such things as consistent originalists, they do not get nominated to the Supreme court.

Bush v Gore was a bad decision, the Constitution lays out the appropriate response to situations like that, and the state legislature was already preparing to implement it, by sending to the House a slate of electors per the original count, with the House deciding whether to go with the state judiciary’s electors, or the state legislature’s. (Hint: The Constitution has something to say on this matter, but it says it to the House, not the Supreme court.)

I can understand the Court’s temptation to remedy a problem caused by the judiciary, but at least originalists are in a position to say the Court should have resisted the temptation. What basis does a living constitutionalist have to say that this wasn’t just another example of the Constitution living and breathing, and rolling over in it’s sleep?

Oh, and the bakers: Judges being human, there have been bad decisions throughout history. What FDR did was take bad decisions, and make them the rule, which is what necessitated ‘living constitutionalism’ as a justification.

Having indulged, when my clients’ interests required it, in plenty of “law office history” in my time, I have yet to be persuaded that people who claim to be “originalists,” of whatever stripe, actually know what an honest look at the historical materials would reveal. Mostly, on matters worth litigating, it is hopelessly indeterminate, unless you know going in what you want to find. People who are quite certain that, for example, the commerce clause does not permit the federal regulation of manufacturing, remind me of that gentleman recently profiled in The Onion who revered what he thought the Constitution contained.

“The other part of originalism is about whether written texts are true or false, not about what they mean, and has to say that (more or less) the Constitution is true and precedents either agree with the Constitution or are false.”

This assertion, frankly, puzzles me. The Constitution does not make, outside of perhaps the preamble of the 2nd amendment, empirical claims about the world of the sort that can be true or false. Granted, the word “shall” occurs numerous times in the text, but it’s not being used in the sense of predicting that something will happening. No, it’s directing that it happen.

What would it mean, in your opinion, to say that the Constitution was false? That the legislative branch actually consists of three chambers?

I mean this seriously. How could a constitution be “false”?

I think there is a better argument for a coherent form of originalism than is being given credit here. I think that form would acknowledge that the practice, effectively, of living constitutionalism has shaped federal constitutional law from from the correct originalist interpretation. But justice requires fairness and fairness requires a minimum of stability in the law so completely throwing out modern interpretations of the law would be a problem. In this sense originalism would be like living constitutionalism but with the goal of returning the interpretation of the law to its original intent. I think this partially weakens the originalist critique, but it does not remove it entirely and it provides it a much more practical base to work from. It also matches more closely what self-proclaimed originalists are doing. Of course, I don’t believe that this *actually* what they are doing nor do I agree with this form originalism, but I think this is probably what you should be engaging with. Or you could take the dsquared approach and not give known liars the benefit of the doubt…

Brett Bellmore @ 52
You’re right that “the Constitution is true” doesn’t make sense in the same way that “a court opinion is true” makes sense. What can be true is something like “P is constitutional” or “the law is Q,” I think, or “legitimate candidates for the House of Representatives have to be at least 25 years old.”

chris @ 53
I agree that those four criteria (and the others that are usually included) don’t make sense–or at least can’t be made to make sense without restricting the set of competent language users drastically (I also think John Holbo’s original divide needs a third category for people who don’t speak the language at all, and thus can’t be fit into either of the original two).

Following up on Bruce Baugh’s point, the “original” meaning of the Constitution was — a few small points aside — deeply contested at the time. As in theology, so in Constitutional law, there is no ascertainable truth of the matter; issues get debated, some get decided by someone agreed upon as authoritative, some get punted, some get re-examined. But that doesn’t mean it’s just a free-for-all; there are some things the Constitution can’t mean, just as there are interpretations of Biblical passages that no one could seriously entertain. And every view is limited by a history of interpretive tradition. Still, most of the interesting questions are, within broad limits, up for grabs — and always were. All there is is what we have decided to accept.

I recall that when Scalia was a new Justice, all flexing his new Justice muscles, he opined about some old 19th century case, I think Hans v. Louisiana’s reading of the 11th Amendment, that is was plainly wrong in terms of the text of the Constitution; which it absolutely was. And from then on he just shut up about it. He’s no originalist; he’s an idealogue, and anybody who’s paid attention sees that his originalism is totally a matter of convenience.

Wasn’t health insurance, by federal law, already prohibited from being interstate?

The argument against originalism propounded here is simply:

(1) Originalism advises judges of the high court to follow what they perceive to be the original meaning of a statutory or constitutional provision regardless of the consequences;
(2) In practice (1), if followed, would be destabilizing and terrible in its consequences;
(3) Good normative theories of judicial behavior and interpretation should not prescribe courses of action that lead to destabilizing and terrible consequences;
(4) Originalism is not good normative theory of judicial behavior and interpretation.

And then stare decisis is adduced as a specific example: stare decisis for the high court is justified on the basis of stability, not original meaning, and this is forbidden by originalism; so an originalist must either disregard precedent entirely, with terrible consequences, or must acknowledge that his originalism is inconsistent.

There’s a fairly easy escape for originalism limited to American constitutional jurisprudence: claim that the original meaning of the US Constitution grants the high court authority to use stare decisis in rendering its decisions. This was mentioned by Timothy Scriven in the early comments as an argument against originalism, but actually it saves the American originalist from inconsistency in adhering to stare decisis. “Yes, we give weight to precedent, because Article III, in establishing a ‘judicial authority’ in the context of a common-law system, authorizes us to do so.”

A critic of originalism could say that such a response misses the point. If the US Constitution did not seem to authorize the giving of weight to precedent, then originalism would still lead to terrible consequences, and this still violates the tenet that a good normative judicial theory should not prescribe actions that lead to terrible consequences.

And at this point an originalist may concede that originalism is not a good normative judicial theory under all possible legal systems, but go on to argue that it is for the American legal system; and that his respect for precedent, within that system, is not inconsistent.

I never understood the argument that originalism is somehow supposed to be constraining. In just a little over a decade, we’ve lived through decisions such as Bush v. Gore and Raich v. Gonzales, just to name two highly controversial cases in which the so-called originalists were in the majority. And as we’ve seen, no amount of appeal to their own theory will keep originalists from doing in practice whatever they want, and coming up with post hoc justifications. What is left to discuss? Even if one thinks that originalism is salvageable in theory (a position I would only grant for the sake of argument) it’s pretty clear that it’s no more of a constraint on actual instantiations of originalists than whatever form living constitutionalism might take. Originalism isn’t an interpretive methodology, it’s just a rhetorical stance to hoodwink people by pretending consistency on your side and painting your opponents as free-wheeling radicals.

I strongly suspect that the real line of difference is not between any kind of interpretive method but between different normative commitments. If you’re the kind of judge that already maintains normative commitments biased against, say, gender equality, it’s pretty understandable why you’d endorse an interpretation of the 14th Amendment that suggests women aren’t persons whose rights are protected thereby. But then again, no amount of theoretical argument would sway Scalia in this case; he, and others like him, will always find a way to square whatever outcomes they prefer with their purported methodology.

John: It was Zhou Enlai, not Mao.

What happens, though, is that (it seems to me) this bonsai thing is growing (and growing fast) predictably on the right side, along with the rest of politics, while withering on its left side. Or, as (I’m guessing) Brett and Sebastian perceive it, it’s growing on the side where the elites are.

Now, I understand that it’s natural, and probably inevitable, and fair enough, but then what’s the point of it? Checks, balances? What does it check and balance? All it does is just legitimizing whatever (in Brett’s terms; sorry if I’m way off) the elites desire.

Not like when FDR tried to pack the court, which – whatever you think of the wisdom of that effort – invited constitutional crisis.

I disagree. In order to actually pack the court he would have needed the active cooperation of Congress; the implicit ability of Congress and the President, working together, to change the makeup of the Supreme Court — normally gradually, but potentially suddenly if they see fit to do so — is one of the few checks on the judicial branch, and IMO a legitimate one. Even though it’s such an extreme step it has literally never been used.

If Congress had actually agreed that the SC was so far out of line that packing it was a necessary step, then I think it’s hard to make a good argument that the SC should be able to overrule the other two branches acting in concert.

“The real stuff will do just fine, thanks much. And the reason we have to have it is: we have a judiciary. You are essentially questioning the Constitutional wisdom of having the judiciary.”

No, I’m questioning what the judiciary is supposed to be doing. To take extreme examples we could have a continuum which is something like:
a) judges decide cases by rolling dice. I’m pretty sure everyone would find that inappropriate.
b) judges decide cases by however they personally feel. I’m pretty sure most people find that inappropriate.
c) judges decide cases guided entirely by most recent precedent, with no or very little need to reference the original document
d) judges decide cases guided largely by precedent, with occasional reference to the original document
e) judges decide cases guided largely by the original document, mostly following precedent unless it contradicts the document
f) judges decide cases only looking at the original document, with no reference to precedent whatsoever.

You seem to be suggesting that originalism is f) and you don’t locate living constitutionalism. I would argue that the debate is actually about where we ought to fall on the continuum between b-e (with most people willing to exclude b, but there are high profile proponents of what is practically b, see especially Roper v. Simmons). Originalists (or really textualists if you aren’t loading the terminology) think that precedent is important but that you need to seriously wrestle with the actual text as well to be sure that your precedent hasn’t drifted so far as to contradict the text.

Living constitutional theory doesn’t care. If the step by step incrementalism of the precedent reaches the point of directly contradicting the text, that isn’t a problem as long as you slowly got there. The clearest case is the interstate commerce clause. There is not enough ambiguity to get from “commerce between the states” to the current “growing your own food is commerce because otherwise you would have had to buy it” interpretation. Another clear example is drug prohibition. We needed an amendment to have prohibition before, how did the federal government get equivalent powers without amendment more recently?

If we had a pure common law system, you could just say that the incremental steps have gotten us here and be done with it. But in a legal system with a Constitution, if you want to actively contradict the text, you should amend it.

The debate between textualism and living constitutionalism is about what counts as a contradiction, and/or whether contradicting the text is ok. Living constitutionalism as a theory (and in practice) has very serious problems with that question, which go mostly unexamined.

Sebastian: in a legal system with a Constitution, if you want to actively contradict the text, you should amend it.

Yes, of course. But you do agree, I hope, that the amendment requirements of the US Constitution are, like the electoral system it prescribes, grossly undemocratic, requiring not reasonable supermajorities of the popular vote but — thanks to population imbalances among the states — unreasonable and unattainable supermajorities in Congress or state legislatures?

It’s a vicious circle: we have a torpid political culture because we have a Constitution that discourages popular sovereignty, which makes it harder in turn to alter the Constitution. It would be nice if people who glibly toss off remarks like “Well, if you don’t like the Constitution, you can just amend it” would demonstrate some awareness of this dilemma and sympathy for those caught in it.

Looking back, I see that Sebastian does make some reference (@59) to the difficulty of amending the Constitution. Oddly, however, his point seems to be that liberal judicial activism (the presumed source of Constitutional distortion) is almost insuperably difficult to reverse by popular (presumably right-wing) mobilization.

I say “oddly” because, in recent decades in the US, Constitutional distortion has mainly come from the right; and more important, because the resources required to mobilize voters and state legislatures are overwhelmingly concentrated on the right. The enormous concentration of wealth, plus the two (very bad) Supreme Court decisions (Buckley v. Valeo and Citizens United) that have increased the influence of money in politics, plus the exponential refinement of the techniques of political corruption since the Republican takeover in 1994, have made it next to impossible to imagine a successful left-wing popular initiative on a large scale, much less in the form of a Constitutional amendment.

There’s something else: the substitution of ideological partisanship for legal eminence as a criterion for judicial appointments is an overwhelmingly right-wing phenomenon, going back to Nixon’s attempted appointments of Haynesworth and [I forget the other hack’s name]. Obviously, if Democrats appoint only centrists and Republicans appoint only right-wingers, the judiciary’s center of gravity will shift rightward. Which is what has happened.

To clarify: of course the constitution says the legislature legislates: I mean the designation of activities that used to be agreed to be correctly described as exercising the executive function and are now said by originalists and Federal Society members to count as “legislating.”

Timothy Burke @ 79
The “Protestant” approach to a text has some interesting affinities to studying math. A result in math (assume the context of a university course) is no good if it contradicts the premises set out in the textbook. But a result is not a repetition of a true statement that was set out in the textbook or in any of the works cited in the bibliography or in some journal article that can be found in the library. To understand the text(book), a student tries to grasp the premises on a nontextual level, and understand how the other statements follow from them. Memorizing theorems is not, I think, considered “understanding.” (Similarly, I assume, memorizing cases without being able to work out their reasoning over again is a different kind of understanding from what is expected of law students.) But there seems to be a difference in that understanding math involves accepting that a logical deduction from a premise is true, even if there’s no way to produce the deduced statement from the textbook by way of “interpretation,” as I don’t think would be the case regarding a sacred text.

an argument that the Constitution can’t legitimately be interpreted to mean something the Founders didn’t think of.

I, and I think most self-described originalists, would be quite happy if the rule were simply that the Constitution cannot mean something that the Founders considered and rejected.

Similarly with regulatory rule-making–if a provision to do what the rule would do was debated and rejected, then the rule probably is legislation, not application.

I think they practice d and preach d. Look at Marshall and Brennan (late cases) on the death penalty. Their view just does not square with “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; 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; nor shall private property be taken for public use, without just compensation.” Whatever ambiguities exist in the 8th amendment, the Constitution clearly doesn’t outlaw the death penalty–it directly deals with methods of implementing it. But Marshall and Brennan said it does. They say that precedent changes enough to get to clear contradiction. And if you read Strauss, he believes that TOO. That is what he preaches even at the very beginning of his book.

Even clearer is the commerce clause. “commerce between the states” isn’t the same as “commerce”. It just isn’t. The fact that it covers marijuana you grow for yourself, or wheat you grow on your own farm for your own use is just ridiculous and clearly anti-text. Yes the reach of the commerce clause is broader because there is more interstate commerce than there ever used to be, but that still doesn’t extend as far as the cases go (much less as far as most liberals want it to go–see Lopez). And Strauss believes that as well.

You can argue that it is ok to interpret so much that you can get to contradicting the text. But it is very lawyerly arguing, in all the negative connotations of the phrase. The reason why textualism appeals to so many people is because living constitutionalists are so eager to defend things that literally anyone who can read can tell are wrong.

“Well, that sounds like an invitation to constitutional crisis to me. Or pretty near. I haven’t ever really thought about it much, I must confess.”

But is a constitutional crisis always something negative? It looks like they have some kind of constitutional crisis in Egypt at the moment. More countries might follow.

Or for an example closer to the US. The Parliament Act 1911 in the UK was the result of a constitutional crisis. Asquith even threatened to pack the House of Lords, in order to pass it!

I don’t understand what you mean by illusion. I mean that a relatively non-awful reader can discern that some of the arguments promoted by living constitutionalists contradict the text. And that for a textualist that is a damning thing to notice while for a living constitutionalist it isn’t particularly troubling at all. (Which is somewhere in the vicinity of positions c and d: “c) judges decide cases guided entirely by most recent precedent, with no or very little need to reference the original document
d) judges decide cases guided largely by precedent, with occasional reference to the original document” both of which you have suggested are ridiculous and no part of the debate.)

That isn’t an illusion. Normal people can read the Constitution, and presuming they know that the term “capital crime” means the death penalty can immediately notice that whatever ambiguities lawyers want to point out, they can’t extend so far as to making capital punishment completely unconstitutional. Normal people can understand that growing your own wheat for personal use isn’t “commerce between the states”.

I’m perfectly on board with the idea that applying the text to unforseen situations can be tricky. And if you think that makes me some brand of living constitutionalist, then fine. But I have enough textualist tendencies to think that it is still bound to the text somewhere. So when I see results that go against the text rather than being just unforseen extensions of the text, I find it very troubling. And living constitutionalism so far as I can understand it (which isn’t far because I’ve never seen a good explanation of its methods and limits anywhere, including by Balkin, Strauss or Bryer) actively defends such ‘readings’.

Now you may want to defend a living constitutionalism which wouldn’t allow for that, but that has nothing to do with how it operates or what many of its high profile advocates directly promote.

me @ 85
This is totally off-topic, but I suppose in the example I gave, inference would give you the wrong result under certain circumstances: If there had been a lost preface explaining that “=” meant “the cardinality of the set is,” then the inference “c=8” would be incorrect (the truth would be “c is between 3 and 8 inclusive”)[1]. So I guess in some cases inference would lead you astray. But “a mathematician’s training” could be likened to “a preface” only by someone who had too frequently given the benefit of the doubt to Derridean revelers (or, maybe, to people trying to keep from drowning in a sea of language they don’t fully understand).[2][3] We don’t use that approach with living people we’re talking to face to face, and we don’t use that approach with live traditions. In those cases, we make an effort to understand the reasoning, and reject that if the reasoning is flawed. We don’t reject that reasoning out of hand just because they reached the “wrong” conclusion any more than we reject that reasoning just because they have less clout than somebody else in the room. Since Constitutional reasoning is a live tradition, then, it doesn’t apply here.

And that’s not even touching poetry: What does “petals on a wet, wet bough” mean to me? At least I don’t think so.

[1] The footnotes might be what had been lost, etc.

[2] The same kind of person you might expect to find articulating the precise difference between the possible range of reference for “preface” as metaphor and that for “footnote” in the same respect.

[3] Why might so many people no longer understand the language of their society? Hmm…

@106
crap. “3 and 11 inclusive.” I had it right in the first draft.

I wrote ‘self-growers’ when obviously I meant ‘for-own-use growers’. Interpretation of my comment should be guided by respect for my original intent.

How very clever.

Normal people can understand that growing your own wheat for personal use isn’t “commerce between the states”.

and

‘Commerce’. I’m more sympathetic here to the view that there is no guiding intention. The question: ‘what did the original framers intend to be the meaning of ‘commerce’ under modern conditions?’ has no answer. I’m sure they didn’t intend that we should stick with their ideas, for dealing with their situation, even if that was obviously a bad idea for our situation…

There was a very good Canadian case before the Judicial Committee of the (Imperial) Privy Council which set out, very precisely, why that kind of interpretation is basically cheating as a general matter. Granted, it’s not American law, but on the basis of its reasoning I found it to be persuasive in a more ecumenical fashion.

The capital case. I don’t think a good living constitutional argument can be made that the death penalty is unconstitutional. Because you’ve got that word in there. But I can see how people think that, in a world in which the death penalty is not imposed fairly, for continent but presently unbudgable reasons, it’s actually unconstitutional, because ‘cruel and unusual’.

I would simply make the argument that the definition of “cruel and unusual” changes over time. After all, chopping people’s limbs off was not “cruel and unusual” in ancient Mesopotamian or Old Testament jurisprudence, but it would have been cruel and unusual in the time of founding of the United States. Similarly, while the death penalty was not cruel and unusual then, it is cruel and unusual now, where most countries with American levels of human development index have removed it from their laws.

After all, cruel and unusual is a socially defined construct.

Now, Commerce. The practical (rather than legal) problem with Commerce jurisprudence in America is that the results are insane. Congress believed that local gun possession near schools fell under the Commerce Clause, but this is in a country where credit and banking is regulated heavily by individual states, and a Washington bank account mostly can’t be accessed in North Dakota. Given that we are pretty much measuring Commerce jurisprudence by practical effects here, it’s pretty much a failure by any standard.

Another practical argument is that with far, far more decentralization of economic regulation (but importantly, more centralization of financial regulation), Canada has done absolutely fine, and in fact has better subnational governance than the United States. There’s no practical argument for Congress to take on more economic regulation when results are so comparatively poor.

“But I have to do it in this labored way, being true to the text, and that has the effect of damping down and moderating my efforts. Which is the best one can hope for. It sounds trivial and cynical to say that judges have to keep up appearances, and that the text serves to make them do that.”

But the living constitutionalist pretty much doesn’t have to do that. Marshall and Brennan (both actual Supreme Court justices, and among the very most revered by living constitutionalists) did exactly what you say they shouldn’t do on the death penalty.

You want to deny that living constitutionalists engage in c and d on a regular basis, and defend it on that basis, but they do.

“I haven’t studied this particular issue, so you could well confront me with judges who have decided they can simply ignore ‘capital’ in the text. But that seems to me unacceptable, for Straussian (David Straussian) reasons. ”

Marshall and Brennan. They are pretty much the Supreme Court lions of what living constitutionalists admire. They did exactly that.

“It follows that if you are allowed to regulate commerce, you might be able to regulate self-growers. This is a somewhat strained use of ‘commerce’ but it is not nonsensical. If someone has just plain written a theory of wheat commerce, and the regulation of the wheat market, and included a chapter on self-growers, quite innocent of any desire to fuel constitutional arguments, that wouldn’t be a surprising thing.”

But look what you did there. Congress doesn’t have the right to regulate commerce. Or at least it doesn’t under the Constitution. It has a more limited right to regulate commerce BETWEEN THE STATES. You just completely wrote those limitations out of the Constitution in your analysis. That is just like pretending that ‘capital crimes’ didn’t mean the death penalty.

“No, living constitutionalism is not the theory that it is impossible to do anything except e. It’s the theory that nothing but e is normatively correct. I am not an expert on Marshall and Brennan’s decisions, but I am quite sure I wouldn’t like some of them, because I would think they went too far.”

You say that, but who are you using as your model? Marshall and Brennan are very close to the model Supreme Court justices when living constitutionalists talk about living constitutionalism. They are very relevant to the discussion.

You seem to be super-dismissive of c and d, which to remind you I defined as:

“c) judges decide cases guided entirely by most recent precedent, with no or very little need to reference the original document
d) judges decide cases guided largely by precedent, with occasional reference to the original document”

Now let’s look at David Strauss on the first page of chapter 2 of his book which you reference:

“Here is a prediction: the text of the Constitution will play, at most a ceremonial role. Most of the real work will be done by the Court’s analysis of its previous decisions… Advocates know what actually moves the Court. Briefs are filled with analysis of the precedents and arguments about which result makes sense as a matter of policy or fairness. Oral arguments in the Court work the same way. The text of the Constitution hardly ever gets mentioned…. The contrast between constitutional law and the interpretation of statutes is particularly revealing. When a case concerns the interpretation of a statute, the briefs, the oral arguments, and the opinions will usually focus on the precise words of the statue. But when a case involves the Constitution, the text routinely gets no attention.

He then spends the rest of the chapter, and indeed the rest of the book, telling us how this is not merely descriptive, but is in fact right and proper.

That is my c and d, being defended by the very person you are offering. If you think living constitutionalism is all about what I defined as ‘e’, you aren’t looking very closely.

“Self-growers have a ‘regular’ effect on that market. It follows that if you are allowed to regulate commerce, you might be able to regulate self-growers. “

No. It. Doesn’t. Follow.

It precisely, exactly, necessarily does not follow. To list is to exclude what is not listed. To qualify is to restrict. You’re taking a clause that was written with qualifiers, “commerce”, “with foreign Nations”, “and among the several States”, “and with the Indian Tribes”, and interpreting it as though it read, “To regulate.”, and stopped there.

Do you think people are fools, to not see what you’ve done? To not understand that you’ve just deliberately altered the meaning of the clause to something the author went to considerable trouble to preclude? This is what critics of living constitutionalism mean, when we say that anybody with basic literacy can see that you’re contradicting the text.

Because that’s exactly what you just did, there.

“Brett, how do you know that the framers expressly intended NOT for it to be the case for the understanding of the commerce clause to be broadened in this way, in the event that modern society changed in etc. etc. ways?”

Because of the words they used. They actually added words to the clause to restrict the extent of the power. And you’re proposing an interpretation that undoes those restrictions. But they DID include those words. You simply aren’t willing to let them bind you.

Well, but the issue John raises, Brett, is whether the economy has changed such that the regulation of y may now be much more closely related to the regulation of x, such that the effective regulation of y is now a necessary and proper part of regulating x.

Your point, I take it, is that the relevant part of the Commerce Clause limits the scope of its regulatory authorization to commercial exchanges that occur across state borders. However that’s not a reading compelled by the text, especially given the existence of the Necessary and Proper Clause. The text of the Commerce Clause says nothing as to what means Congress may employ to regulate commerce among the states. And the Necessary and Proper Clause is quite vague in its general description of what means may be considered authorized by the grants of power in Section 8 – and of course the framers themselves disagreed as to what the Necessary and Proper Clause might imply.

Because of this lack of textual determination, as it were, there is room for competing plausible interpretations; and this competition cannot be resolved simply by reference to the text.

I don’t think that any of this is inconsistent with originalism, incidentally.

I am constantly amused by people who are more certain, 200 years after the fact, about the true meaning of constitutional language than the authors and their contemporaries were when they were squabbling over it at the time.

So … the Gibbons v. Ogden decision of 1824 would be considered an egregious overreach by the founders, which they would have stopped if only any of them had lived to see it, but the US v. E.C. Knight decision of 1895 magically recaptured the founders’ absolutely unambiguous intent? Apparently, the real problem with living constitutionalists is that they’re too constrained … by linear time. Removal of this dishonest insistence upon consistent temporal ordering has the added benefits of allowing McCulloch v. Maryland to have been decided when FDR was president, and of making William Blackstone into a modern-day left-wing anarchist.**

**Someone should write an Enlightenmentpunk story about Blackstone along these lines.

To list is to exclude what is not listed.

In addition to what’s been mentioned with regard to the evolution of commerce, that’s a weighty philosophical claim that needs to be justified.

It’s not so much as that the text doesn’t compel the reading, as that living constitutionalists are defined by their refusal to ever let texts compel them…

Well, originalists claim to be compelled by the text but do whatever they want anyway. So why should anyone take their rhetorical flourishes seriously?

“Sebastian, we apparently disagree about what Strauss is really saying. On your reading, he is saying something that seems to me pretty obviously absurd: the text of the Constitution is largely irrelevant, as a binding factor, in determining what the text of the Constitution shall be said to say. Let me state that, whoever might say such a thing, I am not in favor of this view, which seems to me absurd. ”

Yes it is a bit absurd. But lots of lawyers believe it, and Strauss is absolutely one of them. Did you read the whole book? Have you read his separate piece on modernizing through judicial acts? He really does seem to be ok with readings that non living constitutionalists or non-lawyers would see as actively contradicting the text. The part I quote about the difference between statutory reading and constitutional reading is not a side note at all. He is not saying that statutory law *looks* like it is read differently because it hasn’t been pored over. He is saying that it ought to be read in a completely different style. And it isn’t about respecting precedent either. He is perfectly ok with directly overturning even recent precedent (which you seem to think is a problem with originalism that is somehow better under living constitutionalism).

“Now, either all questions about what these phrases should be held to imply, legally, have simple and self-evident answers or they don’t. The charm of originalism (or textualism) is that it says they do, and it is only willful obscurantism that ever makes it seem otherwise. But I say sometimes cases really get a bit tricky”

I don’t see why you think textualism leads to simple or self-evident answers. Clearly it doesn’t. Different rights and powers have to interact, and the text doesn’t always show how. But the point is that it show limits on how they interact. The eighth amendment clearly leaves quite a bit of latitude. But whatever it does it most certainly *does not* extend so far as to outlaw the death penalty. But many living constitutional scholars and judges straight up claim that it does. Including Marshall and Brennan, both of whom were Supreme Court justices. Both of them, un-nuanced, were willing to rule that way. Of the living constitutional theories I’ve seen, none of them would forclose that outcome. None of them would stop the outcome which you find patently absurd. And when I say that none of them ‘would stop the outcome’ I don’t mean that judges might misuse the theories to get that outcome. I mean that ‘proper’ use of the theories allows for that outcome. That is b or c or d, but definitely not e as we’ve discussed it. (In fact, Marshall explicitly identifies with b) judges deciding on their own personal feelings in his last death penalty case opinions).

And I’m not sure what you are trying to say with the necessary and proper clause and the interstate commerce clause. They are almost never found together in the case law and are almost never balanced against each other in any way to my knowledge. I think you might be alluding to the health care debate, but the necessary and proper clause is an independent possible ground for authority, not particularly related to the interstate commerce clause. Now I also happen to think that it is a horribly misused independent ground of authority, and I offer the most recent case on the topic US v. Comstock as a great example of that fact.

I know that many liberals seem thrilled that Comstock might protect the health care program, but good heavens, what are you willing to do for that? Comstock says that the US Federal Government has the right to hold someone indefinitely if it finds that there is a probability of future dangerousness. This was based on the fact that the Federal government has the power to maintain a prison system. Zoink! The power to create and maintain a prison system means that it can be necessary and proper to have the power to hold people *after their sentence is finished*? Yikes. That isn’t obvious at all. See also Lithwick and Segura on the topic. I thought Greenwald had written on it but I can’t find it.

“But I say sometimes cases really get a bit tricky (and I think you agree. Brett gets off the bus at this point, perhaps.”

No, originalists are clear on the fact that there are parts of the Constitution which call out for value judgements, like, what’s cruel and unusual? The problem is that living constitutionalists think that essentially the ENTIRE Constitution falls into this catagory. We’re not arguing over whether something is “cruel” is a value judgement. We’re arguing over whether the power to regulate commerce that crosses state borders is the power to regulate non-commerce that doesn’t cross state borders. You can’t get much further from that without, as Sebastian suggests, claiming ambiguity for things like the age requirements.

Which I fully expect living constitutionalists to do, as soon as said requirements get in their way on something. Next up on the ambiguity hit parade, I expect: Whether entities other than states can have seats in Congress.

Tell me, do you think THAT is ambiguous? Because there are living constitutionalists who argue they can, and I”m not seeing them being drummed out of the movement.

I also think you have to admit that textualism has enough problems when my (ex-)hairdresser can interpret “you cut it too short last time, yes, I really mean it” as “oh, you are absolutely right, it ought to be shorter, especially at my age,” not once but three times in a row.