Originalism and Precedent Revisited: Banzai as Bonsai

by John Holbo on February 12, 2011

Will Wilkinson has a post at The Economist, taking issue with Orrin Kerr, re: the Vinson decision.

Kerr:

The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important.

Wilkinson:

I agree with Mr Kerr that the freshest, topmost layer of the body of constitutional interpretation built up over the ages by the myriad sages of the Supreme Court is at best tenuously connected with the meaning of the hallowed document ordinary Americans imagine to govern their republic. What I don’t understand is Mr Kerr’s objection to mixing respect for precedent and original meaning in rendering judgments about the “constitutionality” of legislation

This is a perfect illustration of what I was talking about in this post – and the rather invigorating thread that went with it. Originalism is incompatible with respect for precedent. Kerr is getting at this, but he isn’t as clear as he might be. If you just substitute ‘originalism’ in that first passage for ‘the original meaning’ it becomes clear. Wilkinson’s objection is met: obviously you can combine combine respect for original meaning with respect for precedent (that’s Will’s objection). But the philosophy that sees and advocates this practical possibility is the ‘living constitution’ view, nemesis of originalism. What you can’t do is combine originalism with respect for precedent, in coherent philosophical fashion.

Of course, in practice, originalists respect precedent for the reason Scalia has cited: ‘I am not a nut’. But ‘stop applying originalism at the point where it becomes nutty, in practice’ is not a tenet of originalism. Not theoretically, anyway.

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. Because the (unstated) premise you needed to sort your good people from your crazy people, rhetorically, was that there is no middle ground between a realm of unchanging Forms (originalism is strong Platonism about meanings) and total anarchy. If you don’t have the former, you have the latter. But obviously we don’t have the former. Or the latter. What we have, in practice is more like the slow growth of the mighty oak of the common law. Burkean sort of business. There’s a reason why the ‘living constitution’ is often compared to a tree, after all.

Now the goal of originalists is not, in fact, to burn the tree to the ground, but to lay claim to it in various ways. But the philosophy of originalism swears up and down that the tree doesn’t and couldn’t exist, and a good thing, too (because it would grow like mad kudzu and choke us if it, per imposible, did exist, which only a hippie or decadent Frenchman could believe. )

This is not to say that originalism is an impractical philosophy of interpretation. After the rhetorical smoke clears from the originalist banzai strike on the mighty oak of how law and language actually work, the philosophy does not get up and soldier on, true. Because that’s the way it goes with intellectual suicide. But, then again, this was more of a bonsai strike than a banzai strike anyway. If you get my mixed metaphor. (“Banzai” means ‘ten thousand years!’, I gather. Originalists can only shout ‘two hundred years, and a bit!’ But close enough for government work.)

Let me say just a bit more for the impulses behind originalism, if not for originalism itself: the problem with the metaphor of the Constitution – or common law – as ‘like a living tree’, is not that it implies life and growth, but that it connotes a hand-off approach to life and growth. English oaks are not shaped. If you adopted a Japanese metaphor instead, the Constitution as bonsai, you would be explicitly conceding that shape has not ‘happened’ but been rather painstakingly induced. Which is true enough. It is important that ‘it’s alive’ is not, in itself, an explanation – much less a justification – of any distinctive shape that the Constitution may take, through the accretion of precedent. 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. Talking bonsai would preserve you from laziness and put you in a good position to articulate the correct view that admitting the possibility of slow living change, even under human hands engaged in constant detail work with a shrewd eye for likely long-term overall effects, is not tantamount to claiming that anything can be made into anything in no time flat.

Of course, it would be totally unacceptable to compare the Constitution to some damn Japanese gardening. But that’s not philosophy’s fault.

Final note: I very much doubt that Orin Kerr would fully agree with all this, though maybe more than he would disagree. When I say that the way to repair his statement is to understand all this, I just mean that this is what I think everyone should think, because it seems to me right. Also, I doubt that Will Wilkinson will disagree, except maybe around the edges.

{ 142 comments }

1

Tao Jonesing 02.12.11 at 3:56 am

I’ve only skimmed this post (and I still need to view the prior post that it links to), but I find it intriguing and timely. Thank you in advance for the insights, which I should be able to put to use in a current project that I’m working on. I’ll let you know how once I’ve done it.

Crooked Timber is one of my favorite blogs because it has both intellectual breadth and intellectual depth, which makes it objectively more honest than the vast majority of sources out there. I truly appreciate the rigor with which you approach issues. I find it very refreshing in an uncertain world full of certain people. (Read that how you will.)

2

Ebenezer Scrooge 02.12.11 at 4:04 am

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.

3

Timothy Scriven 02.12.11 at 4:20 am

Don’t know that I agree. I think that there are some reasonably consistent positions in the vicinity of originalism. For example one might accept that judgements should be made in accordance with a correct original interpretation, but hold to a principle of epistemic humility and believe that whatever your intuitions in this particular case, going with the precedents from more senior courts is likely to be more accurate on average.

This was the initial impulse to common law ( at least in the romanticised and presumably deeply inaccurate version of its history that I was taught) there was thought to be an underlying law that was not simply made up by judges. However, less senior judges were expected to follow precedent because their sight for the timeless legal forms was dimmer.

Another way you could get to respecting precedent ( and I think that some originalists do implicitly take this route, much as they’d deny it) is by holding that the legally correct decision makes no reference to precedent, but that pragmatic considerations can trump some kind of underlying legal truth- thus avoiding legal anarchy requires making technically incorrect decisions.

Finally it’s worth mentioning the classic legal metaphor of balancing. You seem to think that any legal philosophy that says we should balance considerations of precedent against considerations of text is ipso facto not an originalist theory. But what if there were a theory that held that legal truth is determined by some weighted combination of precedent and original meaning, where the weighting heavily favours precedent. Maybe for example you want to hold that there are certain cases where the original meaning is semantically indeterminate ( it doesn’t exist) or epistemologically indeterminate ( we can’t access it) and in these cases it’s okay to go off factors like precedent, as well as other things like public policy; I don’t think originalism, despite the sometime rhetoric of its supporters, is ( at least in its most plausible forms) committed to legal determinacy for each possible question.

I’m happy to be corrected on any of this, but my gut feeling is that multifarious and ingenious are the devices available to the originalist trying to duck this problem, and the concessions accepted along the way needn’t even be substantial.

And I second what Tao said about this being a wonderful blog.

4

Timothy Scriven 02.12.11 at 4:21 am

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.

5

John Holbo 02.12.11 at 4:30 am

Quick response to Timothy:

“hold to a principle of epistemic humility and believe that whatever your intuitions in this particular case, going with the precedents from more senior courts is likely to be more accurate on average.”

I think this is an artificial attitude, designed to paper over the problem. No one actually is going to believe that there is a Great Chain of Epistemic Virtue, ascending the court system, as it were. So being an originalist, but deferring to precedent on this ground, is just a band-aid to the conceptual problem with originalism.

“the legally correct decision makes no reference to precedent, but that pragmatic considerations can trump some kind of underlying legal truth- thus avoiding legal anarchy requires making technically incorrect decisions.”

This introduces a rather perilous ambiguity into ‘wrong’ and ‘right’, which I doubt will work out well. And certainly destroys the sense of originalism as a philosophy whose advantage lies in large part in its refreshing willingness just to say right is right and wrong is wrong, without mucking it up with all the relativity of ‘living constitution’ and so forth.

“But what if there were a theory that held that legal truth is determined by some weighted combination of precedent and original meaning, where the weighting heavily favours precedent.”

This will be a style of ‘living constitutionalism’. It denies originalism. So the originalist can’t really advocate this. Nothing wrong with it. But it isn’t originalism. Originalism denies that there is ‘balancing’ to be done in this sense. It might be that this style of living constitutionalism would, in practice, address the gripes that originalists have about how living constitutionalism is practiced. But it wouldn’t be a philosophical vindication of originalism.

These quick responses aren’t fully adequate but they’ll do for starters. Thanks for the kind words.

6

Timothy Scriven 02.12.11 at 5:24 am

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?

7

Bruce Wilder 02.12.11 at 6:03 am

Laws, including constitutions, are written in abstract and general terms. In that sense, they are like a priori, analytic theories, which must be operationalized to be applied to particular, concrete, circumstantial reality.

Originalism is the theory that particular operationalizations of the past must be adhered to strictly, even if, in present circumstances and understandings, such operationalizations seem anachronistic and crabbed to the point of contradicting the theory of the text. It is a very convenient view for reactionary hacks, who want an excuse for their arbitrary conduct.

Vinson is a hack.

And, . . . Vinson is a hack. Commenters, who labor to overlook that fact may not be trusted.

8

John Holbo 02.12.11 at 11:05 am

“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.”

Some balancing may be allowable. But if you allow balancing of original meaning with precedent then you’ve basically left originalism behind. Because then the ‘meaning’ turns out to be some sort of shifting vector of original and precedent-established meaning. And the whole point of originalism is to deny that this is possible/desirable.

As to the indeterminacy point: well, I can’t speak for all originalists, but they tend not to be impressed by arguments from indeterminacy, because they tend to slide in an unwanted direction. For example, you might say it is indeterminate how the original framers wanted the commerce clause to be understood under the sorts of conditions that obtain today, i.e. modern society, communication, so forth. Probably the framers didn’t think of this and so didn’t have any intentions, one way or the other. But the rhetoric of originalism tends not to encourage thinking that way. So it is against the spirit of originalism even if it is conformable to the letter of it.

9

Anderson 02.12.11 at 1:37 pm

The legal fiction is that there is no divide between “originalism” and “precedent.” The Constitution does not “mean” all by itself; it has to be interpreted and applied. Decisions that do this become precedents, but they are presumed to be correct applications of what the Constitution means … at least, unless and until they are overturned. So that for instance Plessy was a correct understanding of what the Constitution meant, until it wasn’t any more.

The particular problem for a soi-disant originalist like Vinson is that the leading precedent on the Necessary & Proper Clause is itself nearly as old as the Constitution itself. If you say that M’Culloch v. Maryland went off the rails, then you have a very hard row to hoe.

10

bianca steele 02.12.11 at 7:40 pm

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?)

11

bianca steele 02.12.11 at 8:48 pm

Though I think I’ve understood the term differently from Timothy Scriven, who seems to be positing an origin in time from which we might have fallen off but would like to get back closer to. I’ve assumed, possibly wrongly, that this means good people know about how words mean already.

12

Paul Stanley 02.13.11 at 12:07 am

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.

13

Paul Stanley 02.13.11 at 12:09 am

I guess that you is to some unnamed right wing Originalist.

14

Mike Huben 02.13.11 at 12:51 am

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

15

Brett Bellmore 02.13.11 at 2:12 am

“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.”

Why is that a problem? If there had been amendments, the changes would be legitimate, and there wouldn’t be any basis for a complaint. Or they’d not have been ratified, and, again, no basis for complaints.

Look, a big part of the problem here, from my perspective, is that suborning the judiciary into saying the Constitution suddenly means what everybody knew it didn’t mean, is not the same in it’s effects as amending it to actually have that meaning.

It’s not the same, because if you amend it, you don’t have to deal with all those people who can read, and refuse to play along with the gag. Living constitutionalism is really corrosive of government legitimacy.

And it’s not the same, because if you amend it, you don’t have to staff the judiciary with people who are willing to play along with the gag. Which is to say, you don’t need a corrupt judiciary. Which won’ t just be corrupt when you find it convenient.

Finally, would somebody explain to me why living constitutionalism supposedly respects precedents? Because I just don’t see it: Living constitutionalism respects precedent in exactly the same circumstances as originalism: When the precedents agree with it.

16

Glen Tomkins 02.13.11 at 2:17 am

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.

17

Mitchell Freedman 02.13.11 at 2:54 am

The intent of Framers such as Hamilton and Madison (Madison before the Quakers put in that anti-slavery petition in the first session of Congress and started him scurrying down States’ Rights Lane) was in fact toward a national government with implied as well as express powers and the power to strongly regulate the economy (read Madison’s Federalist no. 10 with its talk about regulating various economic interests in the pursuit of what he called “the principal task of modern legislation”).

And Federalist Paper no. 37, again Madison’s handiwork, was about the inherent vagueness of various words in the Constitution, that it was the work of compromise that would be discerned only through the experience of posterity. Chief Justice Marshall also spoke of exigencies the Legislature and even the Judiciary would face and need to have flexibility in interpreting the document.

So my take is Originalism is flexibility in the document, but also to allow for expansive power for the federal government in economic regulation. And if the Judiciary does anything with reference to economic regulation by the Legislature, it is to strongly defer to the Legislature with exceptions of bills of attainder, ex post facto laws, constitutional violations such as First Amendment.

Vinson is unfortunately a libertarian ideologue who is incapable of deciding matters with which he has partisan beliefs. I strongly oppose the individual mandate as a legislative matter (I favor Medicare for All). However, I have no doubt it is constitutional. Vinson, however, is an anti-Federalist and has no fealty to the Constitution.

18

Timothy Scriven 02.13.11 at 3:08 am

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.

19

Brett Bellmore 02.13.11 at 1:08 pm

Timothy, if you want to convert us from a constitutional republic, to a nation with a common law ‘constitution, like England, do so honestly and openly. Come out for formally disposing of the Constitution. Heck, you can do it though Article V: Propose an amendment to abolish the Constitution without any replacement, and if the requisite number of states ratify, you’ve cut the chain to your boat anchor.

The problem is that the living constitutionalists are relying, just as much as originalists, on a legitimacy derived from that in initial act of ratification. It’s just that you’re running a bait and switch: You take that constitutional legitimacy, and claim it for meanings that never got ratified. And claim, critically, that they really do derive from that language you privately despise: Never do living constitutionalists openly admit that they are replacing the Constitution with these rulings. No, it’s always claimed that the words that were ratified really, somehow, mean something different.

And, let me note, those meanings probably never could have been ratified, or else FDR and crew would have never taken the route they did.

“Living constitutions recieve continous assent in a peicemeal fashion, when people do not modify the constitution to correct the judiciary.”

The people do not have the ability, under article V, to amend the Constitution. That ability goes through elected officials, mostly Congress. The problem is that the people, and the political class, have largely diverged. On any number of contentious issues, (such as illegal immigration) the political class hold distinctly different opinions from the people. And the political class in this country have become a self-perpetuating clique, who can effectively deny entry to members of the people, who don’t share those opinions. Here’s an excellent essay on the subject.

So, living constitutionalism allows the political class to make ‘changes’ to fundamental law, while denying the people any opportunity to block the changes. And once the ‘changes’ have been implemented, your answer is that, if the people don’t like it, THEY can amend the Constitution to undo them.

Except, you know damned well we can’t, because all we can do is ask the very people who arranged for the despised changes in the first place to undo them.

Your ‘continual assent’ is like any oppressor, claiming that because the people don’t rise up and overthrow you, you’re democratically legitimate. While you’re doing everything you can to make that impossible. By, for instance, rigging ballot access to keep third parties from succeeding.

I think, frankly, that this country is headed towards a revolution, because it’s becoming more and more evident how little leverage elections actually give the people over the government, on fundamental issues where the political class and the people disagree. And living constitutionalism will be one of the major causes of that revolution.

20

belle le triste 02.13.11 at 1:45 pm

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

21

Brett Bellmore 02.13.11 at 2:10 pm

“Shorter” is a rhetorical crutch for people who lack any response to what somebody *actually* said, but don’t want to admit it.

22

Tim Wilkinson 02.13.11 at 2:12 pm

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.

23

Tim Wilkinson 02.13.11 at 2:15 pm

(That’s Supreme Court judges, of course, who are not really bound by precedent.)

24

Andrew 02.13.11 at 2:59 pm

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.”

25

John Holbo 02.13.11 at 3:25 pm

That’s interesting, Andrew. Scalia is saying what Timothy S. suggested, which I dismissed as too tricky. But I guess that’s Scalia. I don’t buy this defense – although I’m grateful to have it brought to my attention. The demand that originalists foreswear stare decisis is nothing extreme, really just an observation of what originalism entails. (If consistency would require being so disruptive, perhaps one should adopt a different philosophy whose consistent application would not be so disruptive.) It’s also interesting that it turns out to be a sort of ‘noble lie’ view according to which justices should say something to be (hold something) true – presumably ‘the framer’s intended x, therefore x’ – when the justices (privately, I presume) believe this to be false. The framers didn’t intend x, but x is what is needed, pragmatically, in the eyes of the justices. This is hardly an approach to the law that is likely to encourage trust in the honesty and humility of judges (which is supposed to be one of the major advantages of originalism.) And it is certainly not, contra Scalia’s suggestion, something that all approaches must do.

Also, re: “let’s be clear that originalists are talking about the meaning of text, not the intent of the legislators.”

This really isn’t clear. There are at least three distinct versions of originalism that can, potentially, produce quite different results: 1) original meaning is a function of the meaning of the language at the time of the framing; 2) original meaning is what the framer’s intended that language to mean; 3) original meaning is what the framer’s intended their language to do, i.e. it is the intended functional effect of the law. It’s my impression that most originalists have in mind a somewhat indefinite – possibly pragmatic – mix of 1-3, with an emphasis on 1-2.

26

John Holbo 02.13.11 at 3:52 pm

Brett B: “The problem is that the living constitutionalists are relying, just as much as originalists, on a legitimacy derived from that in initial act of ratification. It’s just that you’re running a bait and switch”

Brett, Andrew has helpfully provided a quote from Scalia about the alternative to this bait and switch you dislike, and it seems surely more bait and switch-like than anything any living constitutionalist can plausibly be portrayed as advocating. Scalia is literally proposing to bait people by promising adherence to ‘original meaning’, then potentially switching that for … something else, but all the while maintaining that one is ‘originalist’. If what you want is honesty about what is going on, isn’t living constitutionalism therefore plainly preferable?

27

NMissC 02.13.11 at 4:30 pm

I would suspect an originalist would say they use precedent to avoid reinventing the wheel each time out– “here’s what we’ve said it means” and then a citation is shorthand for going through all the logic all over again. I think you’ve overstated the problem– you seem to be saying “this is a fundamental contradiction that makes their logic impossible” and I think it’s more “this is a contradiction that’s almost certain to cause problems at time.”

That said, what you’ve done is identify a principaled reason that Scalia is so willing to bail on precedent– to go to “here’s what we’ve said it means, and we were wrong.”

28

Brett Bellmore 02.13.11 at 5:06 pm

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.

29

Tim Wilkinson 02.13.11 at 5:20 pm

If one can bracket the stuff that Scalia comes out with, and all the contingencies of the debates like ‘states rights’ in which actually existing ‘originalists’ pop up – perhaps, as a corrective, looking as well at, say, denial of the writ of habeas corpus and future possible developments in that direction;

and if it can be admitted that issues of interpretaion apply no less (or not much less) to rationes decidendi and other judicial pronouncements than they do to the various constitutional statements;

and if it’s agreed that a ‘living constitution’ is capable of diverging to an arbitrary degree from the ‘original’ constitution (i.e. the constitution, as properly amended);

and if it’s a fixed point that the function of a constitution is to place fixed limits on the legislature and government, limits which are immune to the vicissitudes of popular (and more relevantly, judicial) opinion (opinion which does not eventuate in amendments being passed);

then I don’t really see how originalism – an abstract jurisprudential position, not the name of a family of debating points – can be denied.

30

Henri Vieuxtemps 02.13.11 at 5:43 pm

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.

31

Myles 02.13.11 at 6:50 pm

I think the problem is that John is wrestling with a problem that doesn’t actually exist: what people object to in the Supreme Court, when they scream “activist judges” or whatever, is not living constitutionalism in a bonsai fashion, but the Constitution being used in a completely instrumentalist and contingent manner.

There were quite a few cases in recent decades where it was quite clear that the Supreme Court legal reasoning followed the decision, rather than the other way around. That the reasoning became the justification for a pre-conceived decision, rather than careful deliberation, living constitutionalist or not. Conservatives and liberals both are guilty of this.

After all, Supreme Courts do create precedent, and it’s not quite enough to simply say we’ll wisely follow the existing precedents, when many of the existing precedents quite aggressively broke the previous standing precedents, themselves, for instrumentalist reasons. After all, if a previous gardener chopped down half the bonsai, or grafted another bonsai unto it, do we keep going in with that situation, or do we try to restore the bonsai as much as possible to its previous state state? Because if living constitutionalism justifies the former then it raises the question whether it’s any kind of constitutionalism at all.

There’s a sort of curious trompe l’oeil going on about the debate, in that we have invested the originalist label in people like Scalia, and the living constitutionalist label in people like Thurgood Marshall, when it’s doubtful whether are using the words in the way we think they actually mean.

32

Myles 02.13.11 at 7:12 pm

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.

33

PHB 02.13.11 at 7:39 pm

Vinston is a hack

Thomas is a hack and so is Scalia. We will soon find out how much of a hack the others are.

Obama ran on and was elected on a platform wher HCR was a central manifesto commitment. It was and is in the bounds of what the powers of the Federal government have been understood to be for a century.

Judges do not have the right to set themselves up as dictators. Vinstons hack work was particularly eggregious purporting to invalidate the entire statute because he had reinterpreted the constitution.

If the gop denies the people the right to choose at the ballot box it is time for some heads to appear on pikes. They are not the only ones who can talk about second ammendment remedies, The difference being that they are the type of people the founders thought it might be necessary to remove.

34

J. Bogart 02.13.11 at 9:41 pm

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.

35

BillCinSD 02.13.11 at 11:26 pm

Myles, In “There were quite a few cases in recent decades where it was quite clear that the Supreme Court legal reasoning followed the decision, rather than the other way around. That the reasoning became the justification for a pre-conceived decision, rather than careful deliberation, living constitutionalist or not. Conservatives and liberals both are guilty of this.” do recent decades go back to 1789 or only 1803?

36

John Holbo 02.14.11 at 12:45 am

“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.”

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. (It certainly isn’t a study in originalism in practice, as you yourself admit.) But the history of the Supreme Court is not a study in whim. If you wrote a history of the court, arguing that every decision was decided based on ‘the whim of the moment’ you would write a grossly inaccurate history. So the simplest argument that living constitutionalism can possibly not be the whim of the moment is just this. 1) It actually isn’t. 2) Actual implies possible. C) It possibly isn’t.

Myles: “After all, Supreme Courts do create precedent, and it’s not quite enough to simply say we’ll wisely follow the existing precedents, when many of the existing precedents quite aggressively broke the previous standing precedents, themselves, for instrumentalist reasons. After all, if a previous gardener chopped down half the bonsai, or grafted another bonsai unto it, do we keep going in with that situation, or do we try to restore the bonsai as much as possible to its previous state state? Because if living constitutionalism justifies the former then it raises the question whether it’s any kind of constitutionalism at all.”

There is a problem with the bonsai metaphor, in that it goes too much in the direction of successful design. (But notice that I didn’t say ‘topiary’. At least I didn’t say that.) What you have is many gardeners at work, each getting to pin back or trim or nudge only a few twigs, and the work proceeds across generations. If several gardeners manage to generate an effect, later gardeners may go with it or contend with it, trying to efface it as best they can. You may say it isn’t constitutionalist, but I don’t see why you would. The actual history that we’ve got seems to fit this description. Would you be willing to say that not only would we not have true constitutionalism, under the living constitutionalist view, but that actually we don’t have true constitutionalism – and we never have. We’ve only ever had a (cruel) semblance of it, because if you look at the history of constitutional decision-making and argument, what you see are a bunch of people, each pinning back a twig here and there, plausibly with an eye to whether that would make the whole structure more ‘just’ or ‘true’ or whatever?

I guess what makes it seem un-constitutional is that it seems to leave no role for the tree itself. But that’s supposed to be given. Trees are not perfectly malleable clay. The issue only arises on the odd occasion when there is room to maneuver. But those are the occasions when the Supreme Court gets asked a question.

37

Myles 02.14.11 at 1:24 am

Would you be willing to say that not only would we not have true constitutionalism, under the living constitutionalist view, but that actually we don’t have true constitutionalism – and we never have.

Fair enough. I am not too agitated about constitutionalism in the American context, because it has more or less survived, even in drastically modified form. Perhaps the conservative view toward American constitutionalism should be guided thus:

“It was bad to interfere with Charles, bad to endure Cromwell, bad to punish James, bad to put up with William. The House of Hanover was bad. All interference with prerogative has been bad. The Reform Bill was very bad. Encroachment on the estates of the bishops was bad. Emancipation of Roman Catholics was the worst of all. Abolition of corn-laws, church-rates, and oaths and tests were all bad. The meddling with Universities has been grievous. The treatment of the Irish Church has been Satanic. The overhauling of schools is most injurious to English education. Education bills and Irish land bills were all bad. Every step taken has been bad. And yet to them old England is of all countries in the world the best place to live in, and is not at all the less comfortable because of the changes that have been made. … To have been always in the right, and yet always on the losing side; always being ruined, always under persecution from a wild spirit of republican-demagogism – and yet never to lose anything, not even position, or public esteem, is pleasant enough.” – The Tory Tendency, Maria, CT

But – having said that, we should nonetheless be honest about the problem of living constitutionalism, which is that most of its advocates take an instrumentalist view toward it. How often has one heard complaints about corporate personhood, as much a living-constitutionalist construct as any? Citizens United, which follows from it? I count the lone voice of Glenn Greenwald in support of Citizens United. If so few are willing to apply the doctrine consistently, then we don’t really have a relevant doctrine, and we can’t really derive any implications for public affairs from that debate. Which is to say, it’s a moot topic.

With regard to originalism, I don’t think there is a genuine originalist in any of the fifty states of the Union, aside from Daniel Larison. How many are in favour of the states being allowed to both ban abortions and allow marijuana? (I am, but I’m not American)

38

Myles 02.14.11 at 1:37 am

(I am not an originalist, by the way)

39

Sebastian 02.14.11 at 2:10 am

“After all, Supreme Courts do create precedent, and it’s not quite enough to simply say we’ll wisely follow the existing precedents, when many of the existing precedents quite aggressively broke the previous standing precedents, themselves, for instrumentalist reasons. After all, if a previous gardener chopped down half the bonsai, or grafted another bonsai unto it, do we keep going in with that situation, or do we try to restore the bonsai as much as possible to its previous state state? Because if living constitutionalism justifies the former then it raises the question whether it’s any kind of constitutionalism at all.”

This is a pretty good summary of the critique of living constitutionalism. The key problem is that it offers no touchstone, so you can’t judge anything except instrumentally.

The other major problem with living constitutionalism is that it doesn’t really escape any of the problems that it has with originalism–it just kicks the can down one level of analysis. Precedent isn’t any easier to analyze/interpret/apply than the original text. And in many areas it can be even harder (I’m looking at you religious establishment doctrine). And it really does lend itself to oligarchy–an elite group can amend the constitution by a simple majority, the rest of us plebes can only do it (and only overturn them) by a huge supermajority. Why that counts as constitutionalism at all isn’t clear.

40

Ebenezer Scrooge 02.14.11 at 2:55 am

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.

41

TGGP 02.14.11 at 6:31 am

I haven’t read the opinion, but has Vinson declared himself to be an originalist, “faint-hearted” or otherwise? In another thread it is noted that judges do mix original meaning and precedent, though you say this combination is living constitutionalism. Alright, then he’s a living constitutionalist, which seems to be Wilkinson’s point.

42

John Holbo 02.14.11 at 10:15 am

I try to give credit to Sebastian’s point – which is Myles’ point – in the post. As much as I can (given that I think it’s ultimately not that strong a point, and Sebastian thinks it’s absolutely crucial.) The problem with living constitutionalism is that ‘it’s alive!’ is not an explanation of any given decision, much less a justification. But there is a certain tendency on the living constitution side to answer ‘why are you justified in deciding in this way?’ questions with generic ‘you have to understand that it’s a living constitution’-type answers. Now originalism actually exacerbates this, because if someone says ‘why are you justified in deciding in this way, given that you don’t seem to be following originalism’, it actually is justificatory to say ‘you have to understand it’s a living constitution’, i.e. originalism is a mistaken view. Originalism, as a sparring partner, turns ‘it’s alive’ into at least a semi-justification. Which it wouldn’t otherwise be. But it still isn’t a sufficient explanation/justification, because after all, it could be alive some other way. Why isn’t the Constitution growing more conservative, every day and in every way?

An answer is needed. And no short one will really suffice. First, it’s obviously got to be conceded by living constitutionalists that the Constitution might grow worse, by their lights. There’s no way around that. Second, what the critique of living constitutionalism gets really wrong is the notion that if we don’t have one adamantine principle right here – originalism – we have anarchy or whim or Will To Power or what have you. That’s just sociologically flat wrong and insupportable. And you take it from there. You say: realistically, judges will respond to a variety of considerations. They will want to look like they are being respectful of the original document. They will want to look respectful of precedent. They will want their decisions to be practical, which is a subset of the general consideration: they will want it to be that justice is generally done. Obviously this will be by their lights. When they are aware that their lights differ from others’ lights, they will maybe dim their own lights a bit, because it would look bad otherwise. This will be the norm. There are lots of them at work. The work goes slowly over generations. All this keeps it from being a matter of whim and irresponsible arbitrariness and hubristic fiat, in the normal course of things. Of course you can say this has broken down in the case of decisions you abominate. You might be right. But it doesn’t follow that this isn’t the best model of ‘normal’, hence a kind of normative standard. This is how judging should go. If it breaks down, it is because judges aren’t taking the character of their position seriously, after all. And if we’re in that situation, then a little old thing like original meaning wasn’t going to keep them in line anyway. Originalism is descriptively unrealistic, thus, if taken seriously, normatively wild in its implications. It seems better to be more realistic about what goes on, by way of arriving at a more reasonable normative standard – even if it ends up being something like: the right sort of culture of judging will keep this thing on the rails, more or less.

43

Henri Vieuxtemps 02.14.11 at 11:23 am

the right sort of culture of judging will keep this thing on the rails, more or less

John, as I read your critics here, one of their objections seems to be that no one is watching the judges; they are completely (in practical terms, anyway) unaccountable. How do you expect “the right sort of culture of judging” to emerge in this situation?

44

Brett Bellmore 02.14.11 at 11:41 am

“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.

45

Andrew 02.14.11 at 12:02 pm

John, long ago @25, fair point re three types of originalism, although I think only (1) – the meaning of the legal text under interpretation is a function of language as used at the time of enactment – is plausible at this point.

If I understand the critique here of originalism generally, it is that originalism cannot hold as a philosophically coherent position because if purely implemented the result would be highly destabilizing. That is, an originalist judge must simultaneously pay open homage to original meaning while, for the sake of stability, pay silent homage to other values, even when those other values trump originalism.

But this is, at best, a critique of the fit between the behavior of would-be originalist judges and originalism. I don’t think this poses problems for originalism, or implies that originalism lacks philosophical coherence, because originalism is not an empirical theory of judicial behavior.

There is a second critique, though, in the above posts, which runs:
(1) Originalism claims that unless one hews closely to the original meaning of the legal text at issue, there will be no philosophical constraint on the behavior of judges.
(2) The prescriptions of a pure originalism are “normatively wild” in their implications.
(3) Because of (2), most originalists will carve exceptions to those prescriptions, e.g. claim that one should respect stare decisis, for the sake of stability.
(4) But by (3), we are now allowing values other than the original meaning of the legal text to guide our decision.
(5) Either originalism makes wild prescriptions (implying that there’s something wrong with it) or, if tempered by exceptions, originalism must eschew the claim that originalism is necessary for judicial restraint.

This second critique depends entirely on the imputation of (1) to originalism – and I have doubts. An originalist need not make the strong claim that any other way of interpretation will lead to anarchy (I’m sure some do, but it’s not necessary to the core tenets of the position). After all, originalism taken as a theory of normative judicial behavior, i.e. judges should construe the meaning of a statute or constitutional provision in accordance with the original meaning which we define as etc., must itself appeal to various values in its justification. That is, an originalist must build his normative theory on broader and deeper ethical theories (in which I include normative political philosophy); so it does not betoken inconsistency for those same deeper ethical theories, on which originalism must be built, to provide exceptions in certain circumstances to the usual prescriptions of originalism.

The second critique does clear the ground of (1) as a serious criticism of all alternatives to originalism. As some of the comments above demonstrate, though, this just moves us forward to originalism’s other, more plausible, justifying arguments, and confronts us with a richer originalism than we encountered in the first two critiques.

46

John Holbo 02.14.11 at 12:11 pm

“Originalism, by contrast, is just how you interpret ANY text.”

Well, this at least is just obviously false – empirically and conceptually. (Some people have argued that you have to be an ‘intentionalist’ when you read. That is, you need to imagine either the author’s mind, behind the text, or at least an as-if author. A hypothetical author. I don’t agree with that, but it’s perfectly consistent with ‘living constitutionalism, since the as-if author could well be someone besides the original one.) Nothing forces you to be an originalist, and if something did, the whole issue would just evaporate. (So the fact that you don’t think it has evaporated shows you can’t really even believe what you yourself are saying.) If you want to argue that one ought to be an originalist … well, we’d all love to see the plan. But don’t feign that it’s unavoidable.

And precedent makes it so obviously much worse. There’s nothing that forces you to be an originalist about Shakespeare even without there being anything like binding stare decisis re: Shakespeare. And if there were, it would be even clearer.

“The whole thing is just a rationalization for the historical fact that President for Life FDR wanted more power than the Constitution granted him”

It’s not as though we had originalism before FDR. We had ‘living constitutionalism’, in effect. What you ought to say is that FDR went off the rails (if you really think he did), not that there never were any to begin with.

47

Walt 02.14.11 at 12:14 pm

I’m impressed that FDR, from his grave, struck down New York’s law limiting the number of hours a baker could work in 1905. Assuming that the just how you read things criterion works for liberals as well as conservatives, though from long experience I’m predicting that I’m about to learn that (like Bush v Gore) it’s a rhetorical gun that’s only supposed to be pointed one way.

48

Brett Bellmore 02.14.11 at 12:38 pm

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.

49

John Holbo 02.14.11 at 1:02 pm

“John, long ago @25, fair point re three types of originalism, although I think only (1) – the meaning of the legal text under interpretation is a function of language as used at the time of enactment – is plausible at this point.”

I think this is actually more difficult to handle, or at least contentious. Some originalists find it obvious that 1) is the answer. Brett, on the contrary, is an originalist who finds it obvious that only 2) is even possible. So 1) is absurd. If I were an originalist, I would make sure to rest weight on all of 1-3 (and I’m not just being a concern troll. I think that any coherent theory of interpretation will have some analogs to 1-3, so originalism, if it were coherent – which I doubt – would probably have an ‘original’ 1-3.)

“But this is, at best, a critique of the fit between the behavior of would-be originalist judges and originalism. I don’t think this poses problems for originalism, or implies that originalism lacks philosophical coherence, because originalism is not an empirical theory of judicial behavior.”

Yes, this is fair. But it is just a different route to what I was saying: namely, originalism can’t respect precedent. It doesn’t follow that it can’t be right. It’s just that for most people who say they are originalist, this is too bitter a pill to swallow. The rhetoric of originalism is about overcoming an aberration – this extreme living constitution thing – that has only arrived in recent decades. It is to be combatted by a kind of no-nonsense ‘common sense’ restoration of a former, sane order. But this rhetoric is totally upside down and backwards to reality. A coherent originalism would be radical and un-commonsensical in the extreme (which of course is not to say that it couldn’t be right, as you say). Brett says that there are originalists but they never get nominated or appointed. If you are willing to add: and they never have, not from the start – well, I’ll buy that. (Just drop the kidding about how it all starts with FDR.) I don’t mind originalism as a notional flaming sword that is totally alien to the American Constitutional legal culture, tradition and history. That’s an interesting thing to think about, in an abstract, hypothetical sort of way. But now originalism has become what Scalia protests that it must not: “useful only as an academic exercise and not as a workable prescription for judicial governance.”

50

CJColucci 02.14.11 at 3:54 pm

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.

51

bianca steele 02.14.11 at 4:57 pm

John Holbo @ 46: “Originalism, by contrast, is just how you interpret ANY text.” Well, this at least is just obviously false – empirically and conceptually.

I think it is arguably false, but not obviously false. Part of originalism (admittedly not the whole) includes a theory of interpretation, that includes: (1) a written text has one meaning, (2) the way you get from the written text to the meaning is straightforward and can be understood by all competent users of the language, which means all of them who are not extremely disabled in some way, (3) significant dispute about something’s being in the meaning of the written text means the something isn’t part of the meaning, (4) unless the written text is marked in some way as rhetorical, the written text is an attempt by the writer to represent the truth which may be unknown to the reader, and so forth. Anything else, on that theory of interpretation, is either incompetent reading or an illegitimate attempt to import (export?) ideas that are actually subjective into the written text.

A written text can be false, of course, but that is a different question than what it means. 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. But I suspect that it’s unusual for an argument to be given in support of a particular interpretation if the interpretation is originalist.

52

Brett Bellmore 02.14.11 at 5:34 pm

“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”?

53

chris 02.14.11 at 5:37 pm

@51: But your premise 2 is not only falsifiable, but extensively falsified (in turn calling 1 into serious doubt). Where does that leave originalism? Standing with its fingers in its ears yelling “My interpretation is the only RIGHT one and you obviously know that and are just pretending otherwise”, ISTM. Categorically ascribing bad faith to *all* other interpretations is only reasonable if you’re already convinced of premises 1 and 2 (and, therefore, that good-faith disagreement is impossible).

This reminds me of some religious people’s concept of atheists (and, in some cases, *all other religions too*): people who actually know that (the particular religious person’s preferred) God exists, but just don’t like Him for some reason. That’s a fundamental misunderstanding of where atheism is actually coming from.

54

mpowell 02.14.11 at 6:04 pm

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…

55

Bruce Baugh 02.14.11 at 6:16 pm

I have never, ever seen a champion of original do anything as straightforward as round up the Constitutional Convention’s members’ views on Marbury v. Madison. Who supported Marshall’s approach? Who condemned it? What arguments did each side make? Who saw it worthy of note, and who explicitly said that they didn’t? This is all stuff they could know, and it clearly matters to any assertion that originalism is itself part of the Constitution’s original intent. But they never, ever do.

56

bianca steele 02.14.11 at 6:26 pm

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).

57

Henri Vieuxtemps 02.14.11 at 6:51 pm

Y’all are addressing problems of originalism, and it’s all very convincing, and sort of obvious; but why don’t you address some of the problems of LC too? The seeming arbitrariness of it – is that a problem? Especially in this model, where judges are picked by eager-to-please politicians (we need a woman this time, a Catholic, a black, pro-abortion, anti-abortion), and it’s a life-time appointment? Is there any concern? How much concern?

58

CJColucci 02.14.11 at 6:55 pm

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.

59

Sebastian 02.14.11 at 7:00 pm

“There’s no way around that. Second, what the critique of living constitutionalism gets really wrong is the notion that if we don’t have one adamantine principle right here – originalism – we have anarchy or whim or Will To Power or what have you.”

Clearly not anarchy. A very powerful, self-justifying, difficult to overrule oligarchy. An oligarchy that gets to amend the Constitution with a small majority and can’t be overruled except with EXTREMELY large super-majorities across lots of dimensions (both popular votes and individual states). And just saying that ‘constraints exist’ does not mean that everything the judges do within THOSE constraints are proper. It is very possible that they ought to be looking at other restraints too.

“But it is just a different route to what I was saying: namely, originalism can’t respect precedent.” I’m not at all sure what you mean by this. I especially don’t understand what you mean by this in contradistinction with living constitutionalism. The major points of contention between the theories are almost always about huge breaks with prior precedent–committed by both sides. I’m pretty sure you can’t be suggesting that living constitutionalism is better with precedent in some general way–at worst they both have similar problems with precedents that would interfere with how the judge personally wants to rule. But living constitutionalism offers no *further* restraint than that. All of the things you talk about as restraining a living constitutionalist also tend to restrain judges with a more originalist bent (to the extent that they restrain any Supreme Court justice, which I suspect is significantly less than you seem to believe).

The appeal of the originalist intuition is that you have to keep checking back to the text. Precedent is an excellent guide of how it has been interpreted in the past, and we shouldn’t engage in so much hubris as to just throw it out unlooked at. But a long series of precedents can step by step change the meaning of the text so much that it becomes antithetical to the original words. And that, at least, could be a strong hint that you took a wrong step somewhere back in the chain of thought. If you want to change the text to mean something very different, there is an amendment process. You should use it. If you have trouble seeing non-procedural rights and changes that would require amendment, because you think you can get it all through judges, I’d say you aren’t really engaging in constitutional theory, you’re engaging in some sort of political/power theory.

60

David in NY 02.14.11 at 7:03 pm

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.

61

chris 02.14.11 at 7:17 pm

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.

ISTM that this is giving away the ball game. Once you’ve admitted that stability in the law is valuable enough to disregard the “right” interpretation, then you can’t revive _Lochner_ even if you think it was right, and at that point you’re stuck accepting the modern interpretations of the Commerce Clause and the unpleasant (for originalists) fact that since almost all commerce now is interstate (which wasn’t true at the founding), and new forms of commerce like insurance are even more suited to being conducted across state lines than the traditional wagonload-of-potatoes sort of commerce, the interstate commerce regulating power is *in fact* far more expansive now than it was then, simply because there is so much more interstate commerce to regulate.

In this case, it’s not the Constitution that has changed, it’s the nation. The power to regulate interstate commerce has far more wide-reaching implications than it once did — but short of an explicit amendment, it’s up to Congress to decide how to use it and when not to.

What can be true is something like “P is constitutional” or “the law is Q,” I think

Treating the law like a logical or mathematical formal system? Even if that would hold up, surely Godel showed that it won’t solve all our problems?

But in any case, the axioms would need to be rewritten in unambiguous formal language first, since they were not written that way in the first place. I’m not sure that such a project is even possible, but even if it were, the attempt to do it would reveal the extent to which the actual ordinary-language constitution is ambiguous, and therefore, underdetermines the formal version (i.e. several different formal versions are equally consistent with the ordinary-language text we already have).

For example, the various extra-textual limits on the Second Amendment (children, criminals, legally insane people, WMDs) would have to be specifically defined, a process which is necessarily somewhat arbitrary. Can a state decide the minimum age for gun ownership? If so, what stops a state from picking 30, or even older? There’s lots of gun crime, accidents, and suicide by young people which a state might rationally want to restrain. If DC decides that the legitimate uses of handguns are outweighed by their dangers, and wants to restrict the right to bear arms to more-visible long guns only… well, we already know how that one turned out, but why? Clearly some kinds of limitations on types of weapons are OK, but which ones? Nobody ever committed a Virginia Tech or Tucson-style massacre with a muzzleloader, and there’s clearly an important public interest in preventing that sort of thing, but does that mean 2A doesn’t apply at all to rapid-firing weapons? How rapid, and with what ammo capacity? You’re not going to find any guidance in the text, which doesn’t even distinguish between a firearm and a kitchen knife.

62

More Dogs, Less Crime 02.14.11 at 8:46 pm

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

63

mpowell 02.14.11 at 10:35 pm


ISTM that this is giving away the ball game. Once you’ve admitted that stability in the law is valuable enough to disregard the “right” interpretation, then you can’t revive Lochner even if you think it was right, and at that point you’re stuck accepting the modern interpretations of the Commerce Clause and the unpleasant (for originalists) fact that since almost all commerce now is interstate (which wasn’t true at the founding), and new forms of commerce like insurance are even more suited to being conducted across state lines than the traditional wagonload-of-potatoes sort of commerce, the interstate commerce regulating power is in fact far more expansive now than it was then, simply because there is so much more interstate commerce to regulate.

I agree with all of this, but a year ago I wouldn’t have though Scalia was going to overturn Lochner either. And I think the smart money still says that he won’t. So my interpretation of originalism is, I think, a better fit for at least one of it’s leading advocates. But we will see what he does on this one.

64

Andrew 02.15.11 at 1:30 am

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.

65

John Holbo 02.15.11 at 1:49 am

Sebastian: “The appeal of the originalist intuition is that you have to keep checking back to the text”

Rather, the appeal of the originalist rhetorical gesture is that there is an alternative approach – the living constitution approach – that perversely denies that you have to keep checking back to the text. It’s not as though the living constitution view is that you have to consult everything except the text itself, to determine what the text means.

66

Jerry Vinokurov 02.15.11 at 4:36 am

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.

67

Sebastian 02.15.11 at 7:17 am

“It’s not as though the living constitution view is that you have to consult everything except the text itself, to determine what the text means.”

We don’t really know what the living constitution view is. It is quite intentionally obscure and non-limiting. It isn’t as if you have given us anything special to work with. I suspect it only looks good because you aren’t subjecting it to the same level of analysis that you apply to originalist theories. So far as I can tell from what you’ve said (which I will fully admit isn’t enough to fully judge) the main thing going for it is that it (thus far, but I wouldn’t count on it) has led to outcomes you find pleasing.

Now, it may be that you think non-limiting is fantastic in a jurisprudential theory. I can’t tell from your rather roundabout approach of the subject. But it seems to me that if we want non-limiting, we don’t need to bother with a fiction of judicial interpretation. Legislatures can do non-limited just fine.

But maybe you don’t trust legislatures.

That leads to the question of “why should we trust judges”?

At least originalists make the attempt to define what good judging should look like–as opposed to good policy making. Living constitutionalists seem to break down the divide between judging and policy making. But they never bother to explain why we should let judges do policy making when we already have a branch of government that does that.

68

John Holbo 02.15.11 at 9:41 am

““It’s not as though the living constitution view is that you have to consult everything except the text itself, to determine what the text means.”

We don’t really know what the living constitution view is.”

But at least you would admit that it couldn’t be – and no one would want it to be – the view that, to interpret the Constitution, you should consult potentially anything under the sun except the text of the Constitution itself? Since this is absurd, the thing you say is distinctive about originalism is in fact a feature shared by living constitutionalism.

OK, putting it another way. “We don’t really know what the living constitution view is.” That’s like Chairman Mao, asked what he thought about the French Revolution. He said “It’s too soon to tell.” Now that’s funny, because it’s sort of true. And the same is true of ‘we don’t know what the living constitution view is’ because all we have is 200 years of data points and it could, after all, go to hell. But, then again, it’s sort of nuts (to me) to say we just have no idea what what would happen if people tried to do something they’ve already been doing for 200 years.

“But it seems to me that if we want non-limiting, we don’t need to bother with a fiction of judicial interpretation. Legislatures can do non-limited just fine.

But maybe you don’t trust legislatures.

That leads to the question of “why should we trust judges”?”

We went over this the last time we debated this issue and my answer is the same. No one is asking for fictional judicial interpretation. 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. And you are conflating your concerns about the wisdom of having one at all with concerns about how judges should behave, given that we have one.

One final try: “So far as I can tell from what you’ve said (which I will fully admit isn’t enough to fully judge) the main thing going for it is that it (thus far, but I wouldn’t count on it) has led to outcomes you find pleasing.”

In fact, I hope I have been tolerably clear that it has to be closer to the opposite of that. The living constitutional approach has no inherent tendency to produce results I find pleasing. And, at the moment, there is a conservative majority on the court that is highly activist (if the term ‘activist’ has any meaning in this connection). All this is bad, in my book. ‘It’s alive!’ (cue horror music.) Nevertheless I favor ‘living constitutionalism’ in a more or less realist spirit (realist in the political science sense). Living constitutionalism is more or less descriptively true of what we’ve got, and always have had (whereas originalism is not). And because nothing else is possible, and possibly healthy, living constitutionalism guides us as to the scope of what we should aim at, normatively. On that healthy view, the line between policy and judging gets blurred. This isn’t good thing, merely an inevitable thing. And it doesn’t help to have some people blurring the line between policy and judging making noises – original meaning! – as if they were doing the opposite, i.e. preserving a bright line between the two. Living constitutionalism has a certain tendency to deceptiveness that I have noted. Namely, it can mistake ‘it’s alive’ for an explanation or reason, when really it is neither. But originalism is much more misleading.

Obviously more needs to be said. I’ll let my comment #42 stand. I think it makes it sufficiently clear that I am not just favoring this view because I expect it will mean the next guy’s partisan ox gets gored, not mine.

69

Henri Vieuxtemps 02.15.11 at 10:04 am

On that healthy view, the line between policy and judging gets blurred. This isn’t good thing, merely an inevitable thing.

There are degrees, though. As it is now, would you say judging is too far into the policy territory, or not far enough? Or about where it should be for healthy living constitutionalism?

70

Walt 02.15.11 at 10:12 am

John: It was Zhou Enlai, not Mao.

71

John Holbo 02.15.11 at 10:42 am

“There are degrees, though. As it is now, would you say judging is too far into the policy territory, or not far enough? Or about where it should be for healthy living constitutionalism?”

That’s at once a perfectly fair question, and impossible to answer in any truly satisfactory way. I think the judicial culture in the US is not conspicuously unhealthy at present. There is no crisis. The judiciary is not so ‘activist’ (not even on the right!) as to call into question the independence and essentially judicial (as opposed to legislative or executive) function of the whole branch. (Not like when FDR tried to pack the court, which – whatever you think of the wisdom of that effort – invited constitutional crisis.) It would be nicer if the confirmation heat could be turned down, but it just isn’t reasonable to expect that the court won’t somewhat reflect the red-blue divide in the country itself. It would be nice if that divide itself were less angry, so long as that result came through the other side realizing it’s gone a bit nuts, not through Democrats getting even more wishy-washy, and I’d like a pony. The gravitas of the Supreme Court situation, overall, keeps that branch from going nutso, except on occasion, and that’s no small thing in this day and age. I hope it stays that way.

72

Henri Vieuxtemps 02.15.11 at 11:07 am

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.

73

John Holbo 02.15.11 at 11:47 am

“John: It was Zhou Enlai, not Mao.”

Ah you’re probably right.

“Now, I understand that it’s natural, and probably inevitable, and fair enough, but then what’s the point of it?”

Well, things that are natural and inevitable don’t necessarily have a point. They just are. That’s radically unsatisfactory, as an answer, but points to an ambiguity in the question, which is the one I’m always accusing Sebastian of indulging: namely, should we have a judiciary branch at all, co-equal with the other two? And, given that we do, how should the inhabitants of that branch conduct themselves?

The answer to the first question is, in part: we’ve got it, for better or worse, whether there is a point or not. But there still is an effect: it isn’t pointless in the sense of effectless. And it seems to me clear that the Supreme Court isn’t a very democratic institution (but this much was obvious just from reading the 1 page instruction sheet for building one.) At times it acts as a serious drag on change, at other times it’s a veritable sail, catching the winds of change. I think on the whole it is likely to be a pretty good – not perfect – guardian of rights and minorities against majorities. This is its salutary anti-democratic function. (Pretty clearly this is also what it is supposed to do, in any originalist sense, so I hope there is broad agreement with this.) On the other hand, when there really are changes in social attitudes, the Supreme Court is likely to pick up on that and bend their decisions accordingly, in as delicate a way as they can. (Quite likely, this wasn’t really intended, but it ought to have been predicted, and I think – once predicted – affirmed as probably for the best.) Obviously now it’s a question of whose social attitudes get the short end of the judicial stick. It ain’t going to be win-win all around. I think it’s unlikely that the Supreme Court will ever be – or often be – too extreme about it. They won’t decide in favor of everyone, but they will usually only side with constituencies that it is reasonable, in a democratic society, for them to side with. When the Supreme Court makes a move, it will be the case that a substantial body of reasonable and basically median sorts of citizen will say ‘that’s reasonable’. Culturally, the Supreme Court is never going to let itself be made captive to some extreme elite cultural position (no, not even on the right!) Mostly because Supreme Court justices wouldn’t want to go down in history as a justice who helped convert the bench from the honorable institution it is to a row of partisan rubberstamps. Of course, things could change, and the thrill of partisan victory could overwhelm the fear of being remembered as a hack. And, obviously, judges get called hacks as things stand, and are accused of making nakedly partisan calls. (I’ve made such accusations myself.) Still, judges don’t want to be thought of as nakedly partisan – unlike legislators. And that makes a big difference, in practice. It would be a great shame if that changed, because then Sebastian would probably be right. You’d just have nine tenured-for-life partisans in black robes. That would be no good. But I don’t think that’s actually a description of what we’ve got.

Obviously I kid in suggesting that it’s obvious that elite capture is inherently more likely to come from the right. Because, of course, conservatives take it to almost definitionally obvious that ‘activism’ comes from the left. But seriously: the most likely source of elite capture is, I think, wealth. I don’t think we actually have that: the Supreme Court is structurally more insulated from that than Congress. But if there were to come a breakdown, I would have to guess it would be there.

74

chris 02.15.11 at 2:26 pm

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.

75

John Holbo 02.15.11 at 4:35 pm

“Even though it’s such an extreme step it has literally never been used.”

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.

76

Sebastian 02.15.11 at 5:27 pm

“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.

77

More Dogs, Less Crime 02.15.11 at 5:43 pm

Thomas is the most originalist judge on the court, and I believe he was in the minority for Raich. I just found out from looking up in Wikipedia that Scalia was in the concurrence rather than majority opinion. The majority was Stevens, Souter, Kennedy, Ginsburg and Breyer. Usually not accused of originalism.

Scalia’s attempt to distinguish Raich from Lopez/Morrison is completely unconvincing in my opinion though. Claiming an unenumerated improper power is necessary for exercising an enumerated power doesn’t cut it.

78

geo 02.15.11 at 6:27 pm

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.

79

Timothy Burke 02.15.11 at 6:27 pm

There’s an interesting parallel case of this interpretative problem in the history of Islam. Genuine Islamist or Muslim thinkers are invited to complicate or refute any of this, but as I understand it, the paradigm has developed somewhat like this:

1. Orthodox assumption is that the Qu’ran is the eternal and perfect word of God revealed to humans through his Prophet, who accurately transcribed it into language. Since further translation would introduce error into its “original” and accurate meaning, the faithful instead have an obligation to learn the language in which it was first revealed to humanity. (There have been times in the intellectual history of Islam when it was more permissible to explore the possibility that language itself was an inevitable source of slippage between the divine Qu’ran and the one knowable by humans; this is not one of those times.)

2. However, since the time of the first revelation of the Qu’ran, there have been undeniably new things in the world: objects, practices, social questions. So the problem is, how should the Qu’ran be interpreted to apply to novelty without altering or abrading its original and unchanging truth? How in particular do you inform law which should be consistent with the original truth of the Qu’ran?

3. You do that via precedent, in effect: through hadith, chains of interpretation that are evaluated in part through the coherence of their historicity, their ability to trace back a line of interpretative thought all the way to or as close to the time of the Prophet as it is possible to get. Loosely speaking, the idea goes like this: the Prophet himself had a perfect understanding of what the Qu’ran meant and how it should be applied. His closest contemporary colleagues had a less perfect but still very strong understanding. Muslims who were contemporaries of the Prophet had a slightly less perfect but still very strong understanding. Then downstream it gets less perfect still. But the claims in the present based on precedent are seen as stronger when there is strong custodial confidence that they extend continuously all the way back to the time of the Prophet and all the way back to social proximity to the revelation of the Qu’ran.

——

So you could reconcile originalism and precedent in this fashion with the US Constitution: that the only claims of precedent that are worth anything now are those which extend consistently and without reversal as far back as possible to the time where the people who wrote the document itself existed, that any precedent that has a reversal which is distant historically from the time of the authors is a “non-originalist” kind of precedent and worthless.

Now this is mostly not something that self-declared contemporary originalists do. Instead they argue that the original meaning of the document is evident to contemporary readers, not necessarily requiring disciplined study of the actual historical time in which it was written. It’s a much more Protestant kind of approach to interpreting sacred text: you read it now and in reading it discern through engaging the text in combination with personal meditative attention and reveal how its literal content addresses questions which are not explicitly addressed within the sacred text. Hence also the demand of this style of originalist that if you want the sacred document to address novelty (things which have happened since it was written) you don’t do that through precedent, you do it through amending the document itself. This kind of originalism is genuinely anti-precedent.

80

geo 02.15.11 at 6:49 pm

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.

81

bianca steele 02.15.11 at 7:00 pm

A question, probably for Sebastian: Where do originalists (I have mostly heard this from Federalist Society people) locate the idea that the Legislature is the policy-making branch, and that the Executive and Judicial branches emphatically must not engage in legislating, but must follow the legislature’s lead?

82

bianca steele 02.15.11 at 7:02 pm

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.”

83

chris 02.15.11 at 7:23 pm

Originalists (or really textualists if you aren’t loading the terminology)

I thought the point of the terminology is that “textualism” is meaningless without a hermeneutical stance, and using the term “originalism” makes it clear how you’re going to attempt to ascribe meaning to the text.

Although, in practice, originalists aren’t strict originalists, otherwise they’d have to hold that the Air Force is unconstitutional because the Constitution only authorizes an army and a navy. The Founders clearly never contemplated the idea of military aircraft, let alone ICBMs or UAVs. In practice the army-and-navy-related clauses are routinely stretched to cover all branches of the military and nobody makes much noise about it (not even Ron Paul, as far as I know). Nobody insists that if you want to have an air force you need a constitutional amendment to authorize Congress to spend money on an air force and regulate an air force, authorize the President to deploy an air force, etc. because that’s obviously silly — except when it serves as a reductio ad absurdum to an argument that the Constitution can’t legitimately be interpreted to mean something the Founders didn’t think of.

84

bianca steele 02.15.11 at 8:12 pm

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.

85

bianca steele 02.15.11 at 8:59 pm

thus if the text is “a = 3; b = 5; c = a+b”; then “the text says ‘c=8′” is not true, I suppose; but the reader knows that c=8.

86

SamChevre 02.15.11 at 9:01 pm

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.

87

Jerry Vinokurov 02.15.11 at 10:35 pm

More Dogs, correction re: Raich is noted and appreciated.

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

No, you don’t get to do that. You’re asserting that whatever it is that living constitutionalists do is “contradict the text,” but that’s the whole point of having an interpretation in the first place. People who think that, say, whipping someone in the stocks is “cruel and unusual punishment,” are not engaged in any sort of contradiction of the text at all.

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.

Even if one were to cede that position, that would be a pretty useless metric for our times, since it’s pretty well-established that we have a lot of issues on our hands today that the original signatories couldn’t possibly have considered. Outside of a very narrow range of questions, nothing would be decided by an appeal to such a criterion.

88

John Holbo 02.15.11 at 11:41 pm

Quick answer to Sebastian. What everyone does in practice is e. In theory, the debate is betweening living constitutionalism – e – and originalism – f. Since both sides implicitly concedes that whatever we get needs to be at least practical, e has a big advantage – being the only practical option – and wins the theoretical debate. That’s not an argument, but it tells you where I stand. All of a-d are obviously totally uninteresting and absurd, and no proposer of a ‘living constitution’ (who is thinking minimally clearly) would have anything to do with any of them.

89

Sebastian 02.15.11 at 11:52 pm

I can’t agree John, d is definitely a living constitutionalist position, and I’d venture to say that it may even be the dominant one.

And again, living constitutionalists are remarkably cagey about what they ‘propose’. I have yet to see a good explanation of when amendments would be necessary for example (except perhaps for purely procedural matters like the dates of things or minimum age requirements).

90

John Holbo 02.15.11 at 11:53 pm

Obviously from the fact that sebastian says the debate is between a-e, with e the right answer, and I say it’s between e-f, with e the right answer, we agree that e is the right answer. Both living constitutionalism and originalism advocate e. But I say this is only in practice, for the originalist. Whose rhetoric is straight f. The living constitutionalist both practices and preaches e. Whereas the originalist practices e and preaches f. That’s why I prefer living constitutionalism.

91

Sebastian 02.16.11 at 12:52 am

Are you so sure the living constitutionalist practices e and not d?

92

John Holbo 02.16.11 at 2:17 am

Yes, it has to be e because d is obvious nonsense. I’ll just quote David Strauss, “The Living Constitution” (Oxford UP, 2010).

He starts with ‘Jeffersonian skepticism’, i.e. “the earth belongs to the living, and not to the dead. We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation is to another.” This is not Jefferson’s view of how the Constitution should be interpreted. It is not a ‘living constitution’ view. It is him expressing the view that maybe it’s a bad idea to have one. Now, the ‘living constitution’ alternative to Jeffersonian skepticism.

“Even a mild version of Jeffersonian skepticism might suggest that, from time to time, we should decide that particular provisions of the Constitution are so antiquated, or so indefensible, that we should just ignore them. But one of the absolute fixed points of our legal culture is that we cannot do that [he is, in effect, just assuming that d is obvious nonsense, in the sense that it is a practical non-starters, given our situation]. We cannot say that the text for any Constitution doesn’t matter. We cannot make an argument for any constitutional principle without purporting to show, at some point, that the principle is consistent with the text of the Constitution. That is an essential element of our constitutional culture. And no provision of the Constitution can be overruled in the way a precedent can, or disregarded the way original understandings often are.” (p. 103)

I agree with that and I am unaware of any interesting version of living constitutionalism that says differently. (I am sure someone can be found to advocate d, but I think that would be either crazy or – more likely – just a case of confusion about the implications of what one is saying. It would probably turn out to be a tongue-tied attempt to articulate e.)

It may seem that I just accused Thomas Jefferson of perpetrating obvious nonsense, but – be it noted – I didn’t. It isn’t nonsensical to suggest that the whole idea of having a binding Constitution is a bad idea. What would be nonsensical would be conjoining Jefferson’s skepticism with the idea that we have and should have a binding Constitutional text.

This is most definitely not originalism, so the battle-lines are drawn. It’s e (living constitutionalism) or f (originalism).

93

John Holbo 02.16.11 at 2:20 am

Clarification: “Bad idea to have one”. An intergenerationally binding Constitution at all, that is. Not a bad idea to have a ‘living constitution’ view. I’m sure Jefferson thought that if you have such a document, it has to be a ‘living’ one. So he, too, is a living constitutionalist, even if his skepticism is a challenge to living constitutionalists. The dispute between Jeffersonian skepticism and living constitutionalism is about whether one should have a Constitution, not how to interpret it, given that one has it.

94

John Holbo 02.16.11 at 2:29 am

And if the concern is that the living constitutionalist preaches e but practices d (so maybe I will be accused of merely quoting some preaching), note that Strauss’ argument is that the reason why it’s important to preach e is because of the inevitability of practicing e. When he says ‘we cannot say …’ he is articulating a norm that follows from a descriptive truth. People wouldn’t buy it, so you shouldn’t try to sell it.

95

John Holbo 02.16.11 at 2:40 am

Sorry to post four times in a row but something just occurred to me: Sebastian, is it your view that originalists preach f and practice e, whereas living constitutionalists preach e and practice d? And, since e is right, that makes originalism preferable because what matters most is practice?

96

Sebastian 02.16.11 at 5:08 am

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.

97

Bruce Baugh 02.16.11 at 5:27 am

Still waiting for any defender of originalism to show that it’s what the Constitution’s authors had in mind. Where are the accounts of their reactions to Marbury v. Madison, and all that?

Originalism is to the constitutional thought of the founders as premillenial dispensationism is to the theology of Wesley and Knox, or socialism in one country is to the philosophy of Marx.

98

John Holbo 02.16.11 at 5:32 am

This needs a long and careful response and I’m booked solid today. But I promise to return later. Possibly with a follow-up just about Strauss’ book. (Because your main concern, Sebastian, is that I’m not presenting my own view fully and positively, so it is useful to have a positive, full view in evidence. I would be willing to stand behind Strauss as a target. What hits him probably hits me.)

I will say one thing: it’s true that living constitutionalism involves you in ‘lawyerly’ arguments in the bad sense. And that’s never a lovely thing. But originalism is just as tormented – and then some – in that regard. It may be that textualism appeals to people because they think it is simple and honest and promises a refreshing freedom from that. But since it actually doesn’t do that at all – quite the opposite – it isn’t right to say that sophisticated textualists, or originalists, are attracted by this quality. Which they perfectly well know is lacking, although other good features might be found. Scalia, for example, is not a textualist because he wants a simple, honest freedom from legal fiction. As we have seen above, his view is that justices must sometimes hold legally true things that they think are, in a sense, legally unfounded. Because one must be practical, and that means setting aside original intent if the results would be too nutty. Originalism is hip-deep in ‘noble lies’ and he perfectly well knows and acknowledges this. But, for what it’s worth, I may have over advertised the honestly of ‘living constitutionalism’ unthread. I do think it has a relatively advantage in this regard over originalism. But it’s true that it entangles you in a lot of ‘lawyerliness’ and tricksiness generally. That’s life.

99

Brett Bellmore 02.16.11 at 12:41 pm

“But, for what it’s worth, I may have over advertised the honestly of ‘living constitutionalism’ upthread. I do think it has a relatively advantage in this regard over originalism. But it’s true that it entangles you in a lot of ‘lawyerliness’ and tricksiness generally. That’s life.”

I’m glad you’re willing to admit that, it’s refreshing. Now, could you explain what it entangles you in besides the lawyerliness and tricksiness? Because I’m just not seeing it. I’m not seeing anything there but a rationalization for people who aren’t entitled to amend the Constitution by themselves doing so anyway.

Here’s my viewpoint: The Constitution was written over 200 years ago, for an agrarian society, by people who belonged to a radically different culture, one where things where accepted that we’re aghast at. This implies, inevitably, that it’s going to mean, genuinely mean, a lot of things which are bad from a policy standpoint, or which outrage modern sensibilities.

The problem is, it really does, genuinely, mean these things. Any ‘interpretive’ technique which is able to NOT find it meaning these things has got to be fundamentally dishonest. And, fundamentally, capable of finding it to mean bad things even where it genuinely means good things, if that’s what the person employing it wants.

My solution to this is that we should use an honest interpretive technique, “though the heavens should fall”, and keep the heavens from falling by amending the Constitution so that an honest interpretive technique will find it means good things.

Every poll has shown that the political class in this country systematically disagree with the public on any number of subjects. Among them, how much power the government should be entrusted with. (Strangely, the people exercising that power think there should be more of it than the people subject to that power.)

The formal process for amending the Constitution gives the public points where they can exercise leverage over the process, prevent changes to the fundamental law which they disagree with, even if the political class thinks they’re dandy. The informal process, living constitutionalism, bypasses those choke points. This is NOT a good thing. It means the political class can change the Constitution in ways the public does not approve of.

Further, could you give me a sampling of things with significant political support, which living constitutionalism couldn’t ‘amend’ the Constitution to “mean”? Because if that list is null, doesn’t living constitutionalism simply deprive us of having a constitution, rather than improving on it?

100

Norwegian guy 02.16.11 at 3:38 pm

“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!

101

Sebastian 02.16.11 at 3:47 pm

“It may be that textualism appeals to people because they think it is simple and honest and promises a refreshing freedom from that. But since it actually doesn’t do that at all – quite the opposite – it isn’t right to say that sophisticated textualists, or originalists, are attracted by this quality.”

I don’t know about a refreshing freedom from all the lawyerly arguing, but it at least provides an occasional, outside the incestuous lawyer wanking games, reality check that non-lawyers can discern.

102

John Holbo 02.16.11 at 4:24 pm

“reality check that non-lawyers can discern.”

Well, so long as you admit (which I know you don’t) that this sense of discernment is an illusion, and the reality check more of an unreality check, I’m on board with that!

Brett, why do you think it is impossible to interpret any text except in order to determine what the original author of that text meant? As I mentioned upthread, there are philosophers who say that one must always read intentionally, i.e. imagine a mind behind the text. I don’t think that’s right. But no one argues that it is logically impossible to imagine any mind, as it were, besides the actual one. Also, I fail to see how something is dishonest unless it at least involves deception – even intentional deception. And it’s clearly not the case that anyone who is doing anything to a text besides reading it in order to determine what the original author meant must be reading dishonestly.

But if you think you know better, feel free to make an argument.

103

Jerry Vinokurov 02.16.11 at 4:38 pm

This implies, inevitably, that it’s going to mean, genuinely mean, a lot of things which are bad from a policy standpoint, or which outrage modern sensibilities.

The problem is, it really does, genuinely, mean these things. Any ‘interpretive’ technique which is able to NOT find it meaning these things has got to be fundamentally dishonest.

Then I’m sure you’ll have no trouble at all explaining what exactly it is that the 9th Amendment means. It’s so nice and short, I’m sure its meaning and application to jurisprudence must be totally unambiguous.

It’s interesting that logically, a strict textualist (which might not be “originalist” but which certainly is represented by your second paragraph there, Brett), reading of the 14th Amendment, for example, ought to commit one to stand against almost any kind of discrimination whatsoever. And yet look who wound up in the minority in Lawrence v. Texas.

104

Sebastian 02.16.11 at 5:44 pm

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.

105

chris 02.16.11 at 8:28 pm

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

Normal people can also understand that regulating people who grow wheat for personal use may be necessary to regulate commerce between the states, if wheat is a subject of such commerce (which it is). If this is the best argument you have that your opponents are “contradicting the text” it isn’t very good.

106

bianca steele 02.16.11 at 8:41 pm

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…

107

Brett Bellmore 02.16.11 at 11:20 pm

“Normal people can also understand that regulating people who grow wheat for personal use may be necessary to regulate commerce between the states,”

I’m widely considered “normal”, but I don’t even begin to understand that. If you’re raising it yourself, it’s not even “commerce”. Hence regulating it isn’t regulating commerce, let alone interstate commerce. Now, it’s true that your growing wheat might effect interstate commerce, in the sense that if you grow it yourself, you’re not buying it.

But, again, it’s the power to regulate a certain sub-set of commerce, not everything that might effect it. The weather effects interstate commerce. Tides influence ships that travel in interstate commerce. Does this mean that the interstate commerce clause authorizes Congress to regulate the wind and the tides?

Really, it’s a fundamental question of whether you’re going to let the actual words bind you. “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” What’s the point of adding all those qualifiers, if you’re going to read the thing as authorizing regulating, not just the commerce that isn’t precluded by them, but the commerce that IS precluded by them, and things that aren’t even commerce?

We’re talking here about an ‘interpretation’ meant to negate the actual language, not comprehend it.

108

bianca steele 02.16.11 at 11:25 pm

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

109

John Holbo 02.17.11 at 2:49 am

“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.”

What I mean by ‘illusion’ is that someone offers you a simple, honest answer – originalism or textualism – as a way of avoiding the tricksy complexities of the other approach. But the ‘simple’ answer turns out, on examination, to be at least as tricksy and not even as honest as the other way.

Let’s take the capital crimes and commerce cases. I don’t think any serious ‘living constitutionalist’ could or should be ‘untroubled’ by the fact that stuff is seriously pulling at the seams here, constitutionally. The living constitutionalist should not be portrayed as a cackling mad scientist, ‘they said I was mad, MAD, to say growing your own wheat is commerce. But with my new legal device I’ll show THEM!’ And the the ‘normal’ people are obliged to storm the court with torches and pitchforks. That just isn’t a good picture of the dynamic here. And when I say that textualism and originalism are invitations to illusion, I say so because they invite a totally unrealistic view of what people are up to, and how things work.

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’. That is, certain KINDS of death penalty could easily be unconstitutional, due to ‘cruel and unusual’. And if you think we are only ever likely to get the bad kind, you could strike down all the kinds we’ve got, or are likely to have soon. And what is the rule I’m following here? I’ve satisfied the letter. I’ve acknowledged ‘capital’ and I’ve made use of ‘cruel and unusual’. 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.

‘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. Brett Bellmore says [originalism] means “a lot of things which are bad from a policy standpoint, or which outrage modern sensibilities.” I’m sure the framers did not consciously intend the Constitution to be a moral and policy time bomb, in effect. So even if we wanted to be narrowly guided by their intentions, as Brett suggested, we wouldn’t follow Brett in this case, because I’m reasonably confident that the framers did not share his vision of ‘normal’ in this regard. Is it acceptable to expand the meaning of ‘commerce’ to the point where everything is commerce, because it effects it? Well, obviously the framers wouldn’t have mentioned it, if they thought it was so trivial as that. But I just argued that we are really not guided by the framers’ intent here, because they had no relevant intention as to how this word was to be understood IF conditions came to be as they in fact are. So now we just have the word. Is it reasonable to make growing your own wheat a part of commerce? Well, suppose an economist is trying to theorize how commerce works. What things are ‘part’ of the process. At first he thinks astrology is true and that people are moved to buy and sell by the distant stars. After a while, he gives up on that. Then he considers whether people growing their own wheat might effect the people who are selling and buying wheat. He concludes that his theory of what is going on when people buy and sell wheat needs to take account of people who are just growing their own wheat. 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. 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. So the fact that we have these constitutional arguments hardly shocks the semantic conscience, to my mind.

Am I being tricksy here? Well, somewhat, but no more so than the law may require. It just isn’t simple to decide tough cases. Am I being dishonest about what I am doing? I don’t think I am. What am I doing? I’m trying to tug the text to get what I want. That’s what bothers you. But that part is going to happen anyway. Scalia does it. Every judge wants to arrive at conclusions that seem ‘good’. 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 it’s not trivial and I don’t think it’s even particularly cynical, one you realize there is no less cynical alternative.

Suppose you have a guy and you want to keep him more or less in place. Well, you might build a wall around him. But suppose, for some reason, you can’t. Or else you think any wall you built, he’d just climb over if the notion struck him. So instead you stick a big old weight around his ankle and say: you walk as far as you want but you can’t take the weight off. Well, that may get you more or less the desired result. This is especially acceptable if mostly what you want is stability not absolute constancy over time. So it’s ok if he migrates. But he’s got to do it slowly.

The text of the constitution is a weight around judges’ ankles. That’s why a-d are nonsense – they just jettison the weight. And e is the only serious answer. It’s the only one that provides a view of the functionality of the approach.

110

John Holbo 02.17.11 at 2:59 am

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.

111

geo 02.17.11 at 3:30 am

JH: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. Brett Bellmore says [originalism] means “a lot of things which are bad from a policy standpoint, or which outrage modern sensibilities.” I’m sure the framers did not consciously intend the Constitution to be a moral and policy time bomb, in effect. So even if we wanted to be narrowly guided by their intentions, as Brett suggested, we wouldn’t follow Brett in this case, because I’m reasonably confident that the framers did not share his vision of ‘normal’ in this regard

This seems right to me, though I hope you’ll articulate it more fully. Where the framers could not have anticipated conditions — like the near-total integration of commodity markets in the US or the extreme racial imbalance in the incidence of capital punishment — that alter the situation they prescribed for out of all recognition, then there is no “original intent.” Deciding whether our situation is sufficiently different from theirs in one or another respect to justify disregarding or modifying the apparent literal meaning of their words will of course require much restraint and careful reasoning. But that’s what it takes to be a judge, or at least a Justice.

112

Myles 02.17.11 at 4:17 am

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.

113

Myles 02.17.11 at 4:17 am

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.

114

Myles 02.17.11 at 4:48 am

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.

115

Myles 02.17.11 at 4:52 am

Where the framers could not have anticipated conditions—like the near-total integration of commodity markets in the US or the extreme racial imbalance in the incidence of capital punishment—that alter the situation they prescribed for out of all recognition, then there is no “original intent.”

I’m a bit unclear on the concept, but are relevant American states allowed to form compacts to “pool” their regulatory powers? Because that’s the most obvious solution here: for the wheat-growing states to adopt a Benelux approach to regulating agriculture, and then change that approach as economic circumstances change.

Just because there’s a problem, doesn’t mean the federal government is the right to solve it.

116

Sebastian 02.17.11 at 5:00 am

“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.

117

John Holbo 02.17.11 at 5:46 am

“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.”

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. (Others, which you wouldn’t like, I would probably like.) Bad decisions do not automatically count as counter-examples to theories of what a good decision would be. I may have been a touch unclear about this, by suggesting that e is what we’ve got – as though nothing ever goes wrong. But I took it to be tolerably obvious, so I didn’t make explicit, that I take for granted that it is possible for judges to hand down bad decisions. Indeed, that will probably happen often enough that it is ‘normal’ – one hopes not, but hope is not a plan. But that is different from saying it is ‘normative’. I’m not saying that bad is good, just because it happens.

“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.”

OK, change what I wrote to say that the guy writes his book about ‘wheat commerce between the states’, and he includes a chapter on growing for self-use.

118

Sebastian 02.17.11 at 6:58 am

“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.

119

John Holbo 02.17.11 at 8:28 am

Ah, ok, I was interpreting you as making a statement about whether judges are constrained by the text, in making their judgments – which I take to be the real heart of the issue – where you were actually asking literally about frequencies of mention of textual bits. But it seems to me that the latter measure does not adequately track the former. For example, there is a dearth of cases concerning how old you need to be to be President. I’ll bet you would have to look hard to find many references to that bit, in the mountains of precedent. And that is precisely because judges are so clearly constrained. This is a confirmation of Strauss’ point, not a counter-example. Judges don’t feel free to ignore the text. As a result it doesn’t get referenced all that much. People don’t ask judges to do thing that obviously the judges won’t do.

If c and d were right, judges could easily decide to let anyone meet the age requirement for President because, by hypothesis, they can ignore the text that has anything to say about it – namely, the Constitution. And there isn’t much precedent. So they would have a completely free hand. But of course this is absurd. In fact, this is the sort case in which they have least interpretive discretion.

120

Brett Bellmore 02.17.11 at 11:42 am

“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.

121

John Holbo 02.17.11 at 12:12 pm

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? My theory is: that they didn’t see this coming. Your theory is that they foresaw this and attempted to forestall it. And failed. Now defend your answer. I expect quotes from the framers indicating that they specifically did not want this to happen, in the event that the country found itself in the situation it was in by the mid 20th Century. Lay the accurate prophecy on me.

My principle is a modest one. If you are given the power to regulate x, it might be taken to follow that you have the power to regulate y, if the regulation of y is plausibly necessary (or at least germaine) to the regulation of x. It is not, contrary to what you say, necessarily insane to suppose that if you are empowered to pursue certain ends, you may be empowered with the means to pursue those ends. Now obviously the means can be too much, or inappropriate. But now we’ve left self-evidence in the dust. So your view that there is some self-evident ‘true meaning’ of the clause, that could be known and agreed, if only folks weren’t deliberately trying to muck it up in this insidious way is … well, foolish may be too strong. But it’s not correct. It doesn’t make sense. It’s divorced from the facts of history, the nature of language itself, and – last but not least – it’s out of touch with American legal culture.

122

Brett Bellmore 02.17.11 at 12:46 pm

“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.

123

John Holbo 02.17.11 at 1:15 pm

Sorry, I must have missed that part. Where in the text of the Constitution is it explicitly stated – in so many words, since this is the currency you are insisting on – that it is NOT the case that the “necessary and proper” clause (article 1, section 8, clause 18) shall be used to expand the commerce clause in the manner that judge’s have in fact expanded it, with reference to that clause?

124

Andrew 02.17.11 at 1:56 pm

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.

125

Andrew 02.17.11 at 1:58 pm

Didn’t see John’s comment before I sent mine. Sorry for the repetition!

126

CJColucci 02.17.11 at 4:12 pm

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.

127

Henri Vieuxtemps 02.17.11 at 4:41 pm

But maybe it doesn’t matter what “the true meaning” is. It’s like in John’s allegory: either you chain that guy to the tree and then he’s not going anywhere, or you attach a weight to his his ankle, in which case he will move away, little by little. I think the question is: is he moving to the right direction, most of the time, or not? He’s certainly crawling in the direction where the feds have more power. Is that a good thing?

128

mds 02.17.11 at 4:42 pm

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.

129

Brett Bellmore 02.17.11 at 5:21 pm

“However that’s not a reading compelled by the text,”

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…

130

Jerry Vinokurov 02.17.11 at 9:38 pm

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?

131

Sebastian 02.17.11 at 10:38 pm

“Ah, ok, I was interpreting you as making a statement about whether judges are constrained by the text, in making their judgments – which I take to be the real heart of the issue – where you were actually asking literally about frequencies of mention of textual bits. But it seems to me that the latter measure does not adequately track the former. “

No, I’m not saying that, and neither is Strauss. He is saying that the text doesn’t figure much in the discussion because *it isn’t that important*. And I’m sort-of agreeing with him on that, except we disagree about whether or not the fact that it isn’t that important is a good thing.

“For example, there is a dearth of cases concerning how old you need to be to be President. I’ll bet you would have to look hard to find many references to that bit, in the mountains of precedent. And that is precisely because judges are so clearly constrained. This is a confirmation of Strauss’ point, not a counter-example. Judges don’t feel free to ignore the text. As a result it doesn’t get referenced all that much.”

I actually feel like it is almost *only* the strictly procedural stuff (ages, dates things are supposed to happen, number of votes required for a treaty) that has that kind of force in the face of living constitutionalism. But that isn’t a good thing.

And no it very specifically is NOT a confirmation of Strauss’ point. Strauss specifically addresses this in his second chapter, in the bit I already quoted:

“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.”

You seem to be advancing a theory of living constitutionalism which fits what you want it to be, and which partially insulates it against the common objections, but which is not grounded in actual practice, NOR in the theoretical structures described by Strauss, or Balkin, or Tribe. You are talking about something that is significantly more limited than what is being discussed in the non textualist legal community. And irritatingly, you insist that what actually is being discussed and implemented not only doesn’t count, but is self-evidently ridiculous. And while I agree with that appraisal that it is ridiculous, I don’t agree that it is uncommon–including among the luminaries of the field, and including the very person you are citing.

132

John Holbo 02.18.11 at 2:19 am

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. And I very much doubt that Strauss or Balkin or Tribe can be charitably read as advocating this. The passage I quoted from Strauss clearly says exactly the opposite. And it states his thesis in the chapter in which he most directly addresses this. I think the bit you just quoted – which has to do with ‘focus’ – is perfectly consistent with what I am saying he says.

To see how and why, suppose the issue is ‘interstate commerce’ or ‘capital crime’ (your choices of issues, and fine ones to discuss). 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 (and I think you agree. Brett gets off the bus at this point, perhaps.) So: on to the complex cases. The problem will be relating ‘interstate commerce’ to ‘necessary and proper’ and ‘capital crime’ to ‘cruel and unusual punishment’ and working out how they are going to sit together. They have to be found to sit together. That’s the rule. We are bound by the text but we are also done with the reading of the text. Because it’s pretty short and there aren’t that many explicit bits that are clearly relevant. It wouldn’t be surprising if, past this point, the text itself gets ‘little attention’, just because the question has become: what should we say the text says. And now there’s a kind of pun: the text doesn’t say what the text says. That’s what the living constitutionist thinks. It seems like an evil formula for making up be down. It’s Brett’s worst nightmare. But there is another sense in which it is literally true and even Brett should admit it. The text doesn’t extensively comment on itself. There isn’t a bit of the text that says how specific other bits are to be read. That’s why I challenged Brett to show me the bit where it says that the ‘due and proper’ bit shouldn’t be allowed to let the interstate commerce bit get broad. And that’s why he changed the subject to what an unprincipled person I am. He can’t answer, because the text doesn’t say what it means, in the sense that he is committed to asserting that it says what it means. A self-commentary sense.

So inevitably you end up shifting your attention to other things, which might shed light on what the text should be said to say: precedent, framers’ intent, whether the results of the decision going one way would be obviously absurd. But you are still bound – and quite tightly – to the text itself. Not ‘focusing on’, or not commenting on, is not an index of freedom to ignore.

Statutes and other cases are different just because the text of the statute literally may contain surprising little bits that no one really thought about before – or even totally overlooked. That’s not the case with the Constitution, which has been combed over pretty carefully by this point. Also, statutes are just plain longer in lots of cases. And precedent. Lots of words in there. So it’s easy for the bulk of your efforts to be focused on that. But that doesn’t make the text of the Constitution itself irrelevant. Some x, with no properties, so far as the interpreter is concerned. The text isn’t like Wittgenstein’s beetle in a box, on the living constitution view. No one thinks so, or says otherwise, and if occasionally they say things that sound that way, they are either confused, or maybe their foot slipped for a minute.

133

John Holbo 02.18.11 at 2:33 am

Let me offer a simple analogy. No one writes essays on “Hamlet” that start like this: “In this essay I will argue that the character of Hamlet, in William Shakespeare’s play, is a Danish prince, not a Chinese peasant, Italian plumber, or anything else that isn’t a Danish prince.” That’s a very solid thesis, but not very interesting. So there isn’t a lot of ‘focus’ on this issue. But that’s because it’s a non-issue, not because literary critics ignore the text.

134

Sebastian 02.18.11 at 3:53 am

“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.

135

Sebastian 02.18.11 at 3:56 am

As for Hamlet, the reason you need to refer back to the text is to avoid:

Precedent 1: Hamlet is a Danish Prince.
Precedent 2: Hamlet is a Danish Man.
Precedent 3: Hamlet is a Danish [end of sentence accidentally omitted]
Precedent 4: Hamlet is a Danish not a Bear Claw
Precedent 5: Danishes are best with fruit.
Precedent 6: Cherry Danishes are best.
Precedent 7: As we have seen in the past Hamlet proves that Cherry Danishes are best.

136

John Holbo 02.18.11 at 4:28 am

Sorry, busy again, so no more long responses at least for now. (And I think this thread is going to auto-close pretty soon. If that happens in the middle of an exchange, I’m not going to go into the engine are reset the auto-thingy. I’ll just open a new thread, maybe about Strauss’ book.)

I am not a legal scholar but a philosopher. I haven’t studied the opinions of Marshall and Brennan. I just have the sort of second-hand impressions that any moderately avide court-watcher picks up. I think it is quite likely that I would find a lot of it goes too far. If you say e, you practice d. (Or even c, on a bad day. Not b, I hope, even on a bad day.) Aim a bit higher, because the arrow tends to fall as it flies. That’s why I was serious when I suggested that maybe your view way: advocate f, so you get e. The paradox being: if you actually preach e, you won’t get it. You’ll get d. It’s a kind of motivated irrationality thesis, perhaps.

Now it is no use me opining about how often this dynamic obtains. I hope not too often but I’m not a good enough historian to say. Because I would like to be able to preach e and practice e. I have an aversion to ‘noble lie’ philosophies (even though I love Plato – it’s a love/hate thing. I find them fascinating.) I take ‘originalism’ to be a noble lie philosophy, and I combat it for that reason. Now it could be that I’m just wrong. If people preach e, they’ll get lazy and practice d. I would be unhappy with that result. It may be that if I did go and study the history I would be so dismayed that I would be moved to change at least some of what I said upthread about history being basically e-ish. Now another thing that fits here: to the extent that I have studied past Supreme Court opinions, I’m struck by the fact that justices don’t seem to be first-rate philosophers. Usually when we get a philosophical high-note, in some decision, it grates on my ears. It seems perilously misstated. That is, I have often felt that judges were trying to say e but managing to muck it up. (That’s ok. If I tried to write legal opinions, my scattershot legal self-education would cause me to make a hash of it, so the disdain is mutual, hence reasonably respectful, I hope.) Academic law profs seem to me to do a better job than practicing, decision-writing judges, of getting the theory of interpretation articulated coherently and correctly. I have read Strauss’ book and he didn’t give me that impression. I’ll give a reread, and maybe a follow-up post, time permitting.

Anyway, fun discussion. I always enjoy these law threads. Do keep it up here, as the mood strikes. But because I think it’s about to auto-close, I wanted to say it’s been fun, if work keeps me away today.

137

Sebastian 02.18.11 at 4:51 am

You may be right that I’m ok with e, but think you have to aim at f to get it in reality. But I’m certain you’re wrong about the state of play among the living constitutionalists. They are practicing and defending c and d on a regular basis, and sometimes even admit to b which makes you wonder about the times they don’t admit. The thing that frustrates me the most about this was that you seem to think that ‘e’ is basically the living constitutionalist position. It is much more heavily shaded by textualism/originalism than any of the living constitutionalist defenders would insist on. The maintstream argument among the high profile people I can think of (Balkin, Tribe, Strauss) is definitely not in that zone. If they were, I wouldn’t have nearly as much trouble with them.

I’m probably much more ok with some level of messiness in the theories than you are. A philosopher wants the ends tied up neatly. But in law I’m very suspicious of theories that pretty much don’t ever force you into rulings you would disagree with if you were making the law as a legislator. The judiciary is part of a system of balancing political judgments against each other in a mitigated way. If your system always allows you to get your way, I kind of suspect that it isn’t functioning as intended unless you happen to be lucky enough to be exactly the median political view. The more formalist theories (originalism, textualism) at least in theory force a judge to say things like “I disagree with the policy, but it just isn’t unconstitutional” or “we should do this but it just isn’t constitutional” from time to time. Unless a living constitutionalist has a problem with the age 35, it is difficult to see where he would ever be forced into that position. And that I think is a serious flaw in a judicial legal theory.

138

Brett Bellmore 02.18.11 at 12:47 pm

“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.

139

bianca steele 02.18.11 at 3:28 pm

The eighth amendment clearly . . . most certainly does not extend so far as to outlaw the death penalty.

The 8th Amendment talks about the conditions all capital punishment that occurs have to meet. It doesn’t say there won’t end up being no capital punishments, whether they’re prohibited on 8th Amendment or other grounds.

I’m convinced that what Strauss says about having the Constitution play a merely “ceremonial” role is more extreme than I’d like (and I’m convinced about what Sebastian says about there being different ways of using statutory and constitutional text, and not sure what I think about that–I’m fine with living constitutionalism in general, but on the other hand I would be concerned if there were an assumption that the outcome of the Constitution really prescribes is up for grabs, but on the other hand I’m not convinced judges really think that way), but from what I’ve seen, what’s described in the book doesn’t rise to the level of being “merely ceremonial.” I am more concerned (not being an academic) about academic overstatement of what goes on, for educational purposes, than about practitioners not being capable of critiquing their own practice.

140

bianca steele 02.18.11 at 8:01 pm

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.

141

John Holbo 02.19.11 at 2:46 am

“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.”

I think you’ve just misunderstood the problem, Brett. The issue is not whether one should read ‘commerce’ as simply meaning non-commerce. The issue is whether the ‘due and proper’ clause should be applied to the commerce clause, such that the power to regulate commerce entails the right to regulate non-commercial activity that has a bearing on commerce. Now, obviously the framers didn’t intend that, in effect, the commerce clause was a ‘regulate a whole helluvalot’ clause, via the ‘due and proper’ clause. But that is largely because they didn’t anticipate the conditions under which the commerce clause might be invoked in a modern society. They didn’t intend that this NOT happen. They didn’t consider that this formula might obtain: modern society + commerce clause + due and proper clause = the right to legislate a lot of things. You have this time bomb view that the Constitution is supposed to explode when society changes too much. But you have yet to cite evidence that this result was intended. Another reading might be that the ‘due and proper’ clause was actually supposed to be elastic enough to prevent what Brett Bellmore wants: namely, a big practical problem.

To put it another way, what is driving this dispute is not a plain reading vs. a tricksy one. What is driving this dispute is a value dispute. You want the Constitution to be a ticking moral and policy timebomb. I would prefer not. That’s a value judgment.

142

John Holbo 02.19.11 at 2:51 am

Also, one main reason why people aren’t drummed out of the Living Constitution movement is that it isn’t a movement. It’s a descriptive view of how things go, and a normative view of how they ought to go. It’s not a special interest advocacy group. If a living constitutionalist is a bad judge, or makes unreasonable decisions, the thing to do is not to throw the baby – living constitutionalism – out with the bathwater – the bad judgment.

Comments on this entry are closed.