What Now?

by John Holbo on June 30, 2018

Like lots of folks, I’m pretty shell-shocked by the latest round of Supreme Court decisions, capped off by Kennedy’s retirement. (I haven’t felt up to writing about it. I haven’t felt able to write up anything else.) It’s not that any of the decisions were so shocking (although the gerrymandering punt was deeply disappointing.) It’s not surprising that Trump, plus a retirement-age court, equals fresh appointments. But all this seems fearfully irreversible in two senses.

First, ‘the courts will save us’ is dead for liberals and progressives for a generation.

Second, the hope that America might still awaken from the bad dream of Trump before something Really Bad happens seems dead.

It all seems a lot more zero-sum and long-term now. Either the left struggles and wins by huge margins, to take the (undemocratic) heights the Republicans currently command, or the future of US politics is Trumpist. There isn’t any hope that the future of the Republican Party isn’t Trumpist, or that there is some neither/nor option consisting of leaving a major decision to a somewhat inscrutable Magic Eight Ball in the form of Anthony Kennedy.

{ 290 comments }

1

Hidari 06.30.18 at 6:55 pm

Corey Robin, a year ago.

‘So what keeps the Republican party, particularly the elite sectors, with Trump? I’ve begun to think it all comes down to the judiciary. Trump has gotten one supreme court appointment, he may well get more, and he’s moved more quickly on lower-court appointments than Obama did. The legal arm of the conservative movement is probably the best organized, most far-reaching and far-seeing sector of the right.

They truly are playing – and have been playing – the long game. Control the supreme court, stack the judiciary, and you can , no matter how popular it is, no matter how much legislative power it has, for decades.’

https://www.theguardian.com/commentisfree/2017/jun/15/trump-stack-judiciary-years-republicans

2

oldster 06.30.18 at 7:05 pm

Yup.

So the two remaining things that we can do are
1) work for a blue wave this fall, and
2) work for a blue wave this fall.

We no longer need to dream about time travel to see what we would do to stop the rise of a fascist dictator. We can just look at our own actions over the next four months.

3

BenK 06.30.18 at 7:13 pm

The inevitable result of trusting everything to government is to be finally left completely defenseless against the government you don’t want.

4

Dr. Hilarius 06.30.18 at 7:32 pm

Hidari at 1: Exactly. Liberals and the left have comforted themselves that they will win because of confidence in the correctness and decency of their beliefs. The impact of Republican control of state governments has been minimized by the “courts will save us” syndrome. As an attorney it makes me crazy to hear “they can’t do that, it’s unconstitutional!” The Constitution means whatever five justices say it means. Even if it requires throwing out decades of established precedent; “wrongly decided” is all it takes.

5

Payne588 06.30.18 at 7:59 pm

As far as I’m concerned, McConnell’s theft of the open seat that went to Gorsuch was egregious enough to justify some court-packing by democrats when they get the opportunity.

6

bob mcmanus 06.30.18 at 8:00 pm

Secession

The losses in 2010 and 2014 were terminal. The extra millions in California is terminal. With the courts, redistricting, and the Constitutional small state advantage the Republicans are now the only party than can rule the country as a whole, although if California resists, it will be really tough for them.

To rule Missouri, you have to live in, have a majority in Missouri. Oh, public reason, communicative action blah blah you have to live with racists misogynists and homophobes talk to them everyday and make deals sacrificing valuable things. To rule Missouri from Frisco requires coercion force violence and not only is the current left ill disposed to it, they really don’t have the guns. Britain ruling India, France ruling Algeria. You will lose.

s0 1) Move back to Missouri and make friends with jerks
2) Secede
3) But the next question is what about the people left behind, the minorities and women and progressives in Red States. Try to talk them into moving, help them move, because the Left is incapable of protecting them.
4) With increasing concentration and the failures of neoliberal globalism, the Democratic Party will be moving ever further Left. We will no longer go for the austerian hawk oil friendly compromisers of the last few decades. Sanders is the beginning and at the right of what the Democratic Party will soon become. Alexandria Ocasio-Cortez is the future of the Party, hell yeah, but she will not play in Peoria. So much for Peoria.
5) It could become Leninist or Maoist and go after Red State kulaks…no, I can’t stop laughing. We don’t have the power or the people. Same with re-unionization.

Obama destroyed the party and the country. The only choice left is submit or secede

7

Hey Skipper 06.30.18 at 8:08 pm

Like lots of folks, I’m pretty shell-shocked by the latest round of Supreme Court decisions …

The only people who could possibly be shell shocked are those for whom the Constitution is merely an impediment to their desires.

8

Anon. 06.30.18 at 8:12 pm

That Harvard anti-Asian discrimination case is going straight to the SC, you can wave goodbye to affirmative action.

9

alfredlordbleep 06.30.18 at 8:26 pm

High Court packing has interested me at least since 2010. Contrarian judge Richard Posner highlighted the option years ago in TNR. I notice fellow traveling on the topic has picked up for the obvious reasons since 2016. JQ is now equivocating because, of course, the other side can play the same game when it returns to power. But JH’s “huge margins” (at least like Great Depression margins) wouldn’t be necessary for a control of Court reversal—however temporary.

Here is Linda Greenhouse (NYT) with some early history that should appeal to the “originalist” crowd* [Am presuming fair use of a long clip—with excisions at that]

. . . before most of our modern federal judiciary existed, it was much easier for the party in power to manipulate the law by simply changing the number of seats on the Supreme Court, up or down. Why not? There is nothing in the Constitution that says they can’t—any more than there’s anything saying that Mitch McConnell can’t have the Senate wait until “the people have spoken” in a distant presidential election.

Without any fixed number of Supreme Court seats in the Constitution, Congress originally set it at six. The Democratic-Republicans raised it to seven after they gained full power in 1801. This was completely understandable, considering how unfairly the Federalists had tried to destroy them. When the new Republican Party gained full power in 1861—with a president who got all of 40 percent of the popular vote—Democratic Chief Justice Roger Taney, author of the appalling Dred Scott decision that many Americans blamed for starting the Civil War, tried to contain the chief executive’s ability to wage that war. Abraham Lincoln simply defied Taney, while his fellow Republicans in Congress raised the number of Supreme Court justices to ten.

Three years later, after Lincoln’s assassination, the Republicans, who still held Congress, cut the number back to seven—in the very best of causes. They were trying to thwart President Andrew Johnson, and why shouldn’t they? Johnson, after all, was a churlish, reactionary Democrat, who had only been included on President Lincoln’s national unity ticket because he was one of the most prominent Southern politicians to remain loyal to the Union. A slave-owner until Emancipation and an inveterate racist, Johnson vetoed the country’s first civil rights bill, backed “Black Codes” that would have left freedmen and women in virtual slavery, vetoed the creation of a Freedmen’s Bureau, supported letting Southern states return to the Union with governments dominated by former Confederates, and campaigned fervently against the Fourteenth Amendment. . .

In order to stop Johnson from negating all the sacrifices of the Civil War and their every attempt to build a just, interracial society in the United States, the Radical Republicans voted not only to impeach the president—who may have avoided expulsion from office only by bribing his Senate judges—but also to eliminate three Supreme Court seats Johnson hoped to fill. . .

The Johnson crisis passed, as the country moved into the four-party system (and Jim Crow: As usual, abject racism proved to be the balm that soothed most white people). The Tenure of Office Act would be repealed 20 years down the road. When a president again tried to pack the Supreme Court, even to address a terrible crisis, as Franklin Roosevelt did in 1937—he was stopped cold. His plan was rightly seen as an improper attempt to change the rules—to violate what had come to be viewed as basic political fairness.

http://www.nytimes.com/2016/12/08/opinion/under-trump-the-federal-courts-will-be-up-for-grabs.html?ref=opinion

Kiss “political fairness” goodbye mates!

*yeah, right

10

bob mcmanus 06.30.18 at 8:28 pm

Two last things

The last time we had nice things, say 1965-75, we also made huge compromises with militarism and the economic right, we made deals with the likes of Dirksen, Stennis, and Eastland. And Meany and Daley. That “centrist” blue dog conservadem faction is becoming completely unacceptable, and after Manchin Heitkamp and Donnelly provide the swing votes to kill choice, the neoliberal faction that wants to make deals will be dead.

We also sent Federal Marshalls to occupy the South, and more, for a generation or two. We no longer have the political or social capital to do it again.

The dreams of the centrists ending the EC, protecting choice and immigration are just fantasies, because Democrats will never again make the compromises necessary to get the majorities FDR and LBJ had. At least any Party I will support.

It’s over.

11

Lee A. Arnold 06.30.18 at 8:36 pm

I do not understand why the big money on the liberal side has not started a counterpropaganda news network to fight Fox.

12

kingless 06.30.18 at 8:37 pm

We no longer need to dream about time travel to see what we would do to stop the rise of a fascist dictator. We can just look at our own actions over the next four months.
Agreed, except instead of the next four months, it’s from now on. Even if a blue wave takes (part of) Congress, that won’t be anything like time to relax.

13

Layman 06.30.18 at 8:42 pm

@JH, ‘what now’ is we’re fucked. For added entertainment value, the Trump admin has teams of lawyers reviewing the archives of naturalization applications looking for excuses to strip people of US citizenship. Maybe they won’t de-citizen my wife, but it really never occurred to us to worry about that before.

14

Layman 06.30.18 at 8:45 pm

@BenK, WTF do you mean to say? I read your terse snark as ‘Republican rule is really bad, and that’s the liberals’ fault’. Did I get that right?

15

ph 06.30.18 at 9:16 pm

What now? How about the ‘reality-based’ community starts accepting reality? The single most troubling dimension of the last eight years has been the willingness of many clever people to internalize political fictions.

First, ‘Trumpism’ is shorthand for ‘I don’t know what the f- is going on around me.’ As Corey and sundry others have observed Trump isn’t the exception, he’s the rule. He simply sounds and sometimes acts different. Obama, Clinton, and Bush spoke in different registers according to the audience, for which they were roundly complemented, or condemned – be it Clinton discovering a southern accent, or Obama tipping a food server with a ‘We good’ affirmation of shared identity. Trump has no elite register and his ‘Versailles’ style apartment is an manifestation of the tackiness elites deplore – he might as well have black velvet paintings on the wall, a paunch, and walk around in stained white t-shirt beer in hand. But none of the above means he’s stupid, crazy, authoritarian, or even mean. And that’s the part folks forget – Trump’s immense popularity through the 80s up to his Obama antipathy, and even after.

The solution – I put it to you – is to accept that Trump has already accomplished a great deal of good, good that cannot be denied, or dismissed. Bush managed to condemn Clinton for not doing enough with the ‘peace dividend,’ he didn’t argue contra-reality that Clinton built surpluses. What made/makes Trump different from other politicians is that he’s willing to say anything – and flatly contradict himself mid-sentence – because he knows that as long as we’re listening to the puppet-master, we’re losing.

Ask yourself one question – would Donald Trump have been elected if the press had ignored his tweets, or statements? The answer is a robust and emphatic ‘no.’ The issue with Trump was and is always – what will he do, not what is he saying.

Dems today continue to misunderstand that few benefit from taking Trump literally, rather than seriously. The danger Trump presented was always the judiciary, and never concentration camps – which is why Trump is/was delighted when his political opponents fix the discussion on actions that are provably untrue, rather than the real – worth opposing consequences of a Trump presidency.

Ask yourself another question. Would Clinton have been more successful if she had made the judiciary and not the access Hollywood tape and Trump tweets the reason to vote Democratic. Would sober stewardship, probity, and patience versus a NY hustler with multiple business failures selling a pipe dream of American greatness via made in China MAGA hats to a reality TV audience been more effective than OMG!!!!! ‘this time he’s finished’?

The next Democratic candidate needs simply to embrace all that is good about the Trump presidency, and then describe how and where Trump fell and continues to fall short. As the OP notes – the barn door is still swinging wide open. But that doesn’t mean the door should remain open.

Trump got 2 billion in free air-time via his tweets, and sucked all serious discussion from the election by inviting people to fixate on his meaning-free Trump U tweets. Trump is no nazi – he’s a corrupt self-interested ego-maniac – which makes him another run-of-the mill bum.

Focus on Trump’s accomplishments, be generous in spirit and action, move past the distractions and promise more of the same, only better, more substantive, and permanent.

Be happy.

Is there any better place to be than a Trump rally? For many of his voters, there truly isn’t.

Match that.

16

bob mcmanus 06.30.18 at 9:39 pm

I do not understand why the big money on the liberal side has not started a counterpropaganda news network to fight Fox.

Because they pretty much like conservative economic policies, and know that a resurgent left can only be ( also, additionally) economic populists. There is no way the top of the party accepts FDR or LBJ economics. That was Obama’s terminal “mistake” one that Bill Clinton didn’t make, or couldn’t afford to make. It’s the economy, stupid.

PS:Did I fail to hit submit on my first comment, or are y’all scared of treason and sedition. Let me know fore I post again. I’m patient.

Maybe they won’t de-citizen my wife

I wanted, and still want, honest-to-god sanctuary cities and states, protecting immigrants at any cost. The law will no longer be on our side, ever. We will never have the votes to abolish ICE. This is the reality we need top adapt to.

17

ph 06.30.18 at 9:48 pm

So many lessons, and so much great data! More happy thoughts – so, I teach messaging – I’m lovin’ it – etc. And for fun and edification I watched the MSNBC 2016 coverage of election again last night. And Holbo, I know, enjoys great cartoons. So, let’s take a serious look at some seriously well-designed messaging. As always, the visuals do the heavy-lifting.

How did the early versions of each Apprentice begin? Trump is in a private helicopter soaring over New York, or in a stretch limousine boasting about money and success.

How did each Trump rally begin? Trump rolling up in a private plane and then boasting about money and his political success.

In both cases Trump invites the audience to imagine that we are each on the threshold of becoming FANTASTICALLY and INCREDIBLY RICH, simply by being close to Trump!!

The pitch is identical and exactly the same as that of a casino and a beauty contest, and here’s the key part – credible and proven – even as most of the rubes know that only a tiny fraction ever win, and that nobody is going home with the ‘babe in the bikini.’ It’s real-life drama and its EPIC in the truest, most traditional sense of the trop, just as all great comics are. Will the hero vanquish the evil unhumans and save Smallville? Is there any ever doubt? But tune in next issue to find out!!!

One of my favorite old essays on popular culture is ‘What Makes Superman So Darned American?’ Folks know they’re going to be ripped-off and come away from Atlantic city poorer, but that doesn’t mean Tony Robbins and Jordan Peterson are going to go broke anytime soon. We want to be liked and we want to be listened to. Our opinions count! Look at how many TV shows now allow the audience to pull the trigger on the outcome?

The single most important benefit of the Trump presidency is that non-elites get to stick to elites every single day. That’s hard for a lot of academics and such to swallow, because few perhaps think of themselves as living on the top of the mountain – but that’s just another example of their disconnect from a world where most folks send their kids to fail, fail, fail, fail again, and then perhaps end up in prison, or dead.

That ‘other planet’ is California and the ‘other community’ is that of African-American parents, where 90 percent of their male high-school age children can’t read or write. Get to know the reality of everyday life, celebrate all people, like everyone, and WIN BIG!!!

18

Cranky Observer 06.30.18 at 9:49 pm

= = = But none of the above means he’s stupid, crazy, authoritarian, or even mean. = = =

The African-American families who who had their applications for apartments in Trump-owned properties turned down due to their race, and the five African-American men against whom Trump led a hate campaign to have them executed even after it was proved that they could not have committed the crime of which they were accused, might disagree.

19

SC 06.30.18 at 10:42 pm

Somewhat against my better judgement . . . What, other than the rich getter way richer, and the powerful gaining more power, has gone well over the last year? Yes, job growth has continued much the same as it did the last two years of Obama but a wide range of working class protections, including heathcare, have gone downhill. Yes, diplomatic contact was made with NK but it’s unclear that the odds of war with NK have resided and there’s evidence that iffy diplomacy has made things worse. I guess it might be possible to argue that dismantling the US empire and ending alliances and closing joint exercises and potentially closing bases and turning parts of the world back over to non-US care is good but . . . in fact, military spending is going up, miltary action is increasing, and we seem to be getting more involved with various undemocratic counties. It might be possible to argue that some, mostly rich, white people are doing better or feeling more pride or something but, well, if that’s what “better” boils down to it’s probably best to be clear about that.

20

Alan White 06.30.18 at 10:54 pm

John at once I am so gladdened and saddened by your post. It reflects my own ongoing mood, which began right after the election, when I experienced the one and only panic attack in my life, masked as heart attack. I knew then that all this was coming–whether Trump or Pence was at the helm–and I lost hope for the rest of my life that things might get better. I knew the election was about the judiciary, and I knew that without a Senate majority that there would be no stopping the march dead right. Your post at least makes me feel a bit less alone in my despair. Thanks. (I’m not giving up however–I will work for the resistance in any way I can.)

21

ph 06.30.18 at 11:43 pm

@18 You’re not getting it.

To your point. Substantial majorities of minority voters living in states such as California are living lives very different from their Caucasian neighbors. Does that mean Democrats are racist bigots forcing African-American to live in economically isolated low-income housing far away from the much better public schools in the leafy suburbs? Trump’s may well be a bigot, but his track record suggests all money spends. He opened up his country club in Florida to minorities, and hired women for senior management positions in the construction industry. He’s amoral, rather than immoral. But your fixations are the real problem.

Unlike you, I’ve watched all the major network election night coverage of 2016 at least once. I’m more than midway through the MSNBC coverage again right now. To the OP, Nicole Wallace and other never-Trumpers are just now confirming what I pointed out earlier. The issue for many GOP voters hostile to Trump was the supreme court.

Your fixations with whether or not Trump is HITLER, RACIST, HOMOPHOBE OMG!!!!! Concentration Kamps are Koming ANDREW SULLIVAN foaming at the mouth hysteria is exactly what Trump wanted you to be doing. I said it then and and I’m saying it again,

You’ve got Trump right where he wants you.

Want to make him mad and win? Ignore him. He’s the symptom, not the cause.

22

ph 06.30.18 at 11:51 pm

I’m out, but a quick reply. You’re not getting it, either. Stress the positive – NK – which part of that is bad? So give Trump credit, unless you’ve got a better plan.

The Bush response to the Clinton economy was not to try to assert that Clinton hadn’t succeeded, but that he hadn’t done enough, and that Democrats would waste all the benefits.

Fred Kaplan voted for Bush in 2000 and cites his fears over Gore’s economic stewardship to explain his choice. Trump’s numbers are up among Hispanics by 10 percent even as MSNBC is asserting that all Trump voters, not just the president, are Nazi racist scum.

Dems dug an enormous hole for themselves turning into end-timers in 2015-2016.

I suggest you stop.

23

John Holbo 06.30.18 at 11:56 pm

For the sake of his dignity, I’m putting ph on a diet. One comment per 24 hour period in this thread. I’ll see you tomorrow, ph.

24

John Holbo 06.30.18 at 11:59 pm

Skipper: “The only people who could possibly be shell shocked are those for whom the Constitution is merely an impediment to their desires.”

Why?

25

Lee A. Arnold 07.01.18 at 12:36 am

bob mcmanus #16: “Because they pretty much like conservative economic policies… There is no way the top of the party accepts FDR or LBJ economics.”

There are plenty of counterexamples: e.g. 45 Democratic senators signed a letter in support of a public option in health care. But I think this example also points toward the ongoing wimpiness and timidity of their tactics and a lack of long-term strategy. It’s as if they would rather not express enthusiasm and so comfort themselves with “the correctness and decency of their beliefs” as Dr. Hilarius put it above. Perhaps they hope others will join in (without giving them much reason to). They are also rhetorically confused and unable to respond factually when someone from the Right starts spouting nonsense such as “Trump has really turbocharged the economy.” It’s evident from the charts that the economic path is going on the same slope upwards since its nadir after the financial crash, and the same thing is happening in many other countries — yet you won’t see those simple facts on TV. Trump’s taking credit for something he has nothing to do with, in fact may clumsily destroy. What is really lacking is a counter network to combat the Right’s very effective Fox strategy of 24-7 lies for candidates at the state & federal levels to parrot.

26

Omega Centauri 07.01.18 at 1:58 am

Lee @11
I think there is strong left/right asymmetry when it comes to the tolerance of obviously biased presentations. Too many on the left just don’t go for it, for it to support a popular station. In short, at least in the modern US context, reality-based is an identity that most on the left want to be identified with. On the right, loyalty trumps careful thinking.

So the closest we can get is MSNBC and maybe Democracy Now. I find the later mind numbingly boring. Pretty lukewarm stuff if you ask me.

There is also a strong asymmetry with regards to deep-pocketed sponsors. The right is overflowing with such. Not too many on the left. Also when someone leaves an estate, those who are left leaning seem to be more interesting in apolitical philanthropy, not much is left for left political groups.

27

John Quiggin 07.01.18 at 2:02 am

To present the positive side of the story, “winning big” is not impossible or even implausible. A margin of 7 to 8 percentage points is enough to overwhelm the gerrymander* and win the House. Right now, that’s exactly the margin showing in the generic poll at 538.com https://projects.fivethirtyeight.com/congress-generic-ballot-polls/?ex_cid=rrpromo. Sustain that until 2020 and it gives the Presidency and the Senate as well.

The other big question is whether a big win would do more than stave off the disaster of Trumpism. That remains to be seen, but the Dems have moved a fair way to the left and there’s unlikely to be much appeal in “reaching across the aisle”.

* Much over 8 per cent, and the gerrymander becomes counterproductive, since it depends on lots of seats held by comfortable, but not overwhelming margins.

28

Peter K. 07.01.18 at 2:07 am

@25

For a lot of voters, just a public option for health care is not enough. It’s minor tinkering as the Democrats have been doing for 40 years when Clinton wasn’t doing welfare or crime reform or he and Obama weren’t doing free trade deals.

Related, I don’t think most voters see the recovery as that good. There are long term problems with the economy and a low unemployment rate isn’t enough.

The only hope is the rising generation of democratic socialists. If they are able to organize the poor and working class and the center left doesn’t obstruct the Left too much, it will come down to a mass movement versus a conservative judiciary and Senate. People are sick of a Democratic Party that is all rhetoric and no action. They are tired of the excuses and rationalizations.

What I want to hear from leaders on the left and those running in 2020 is how are you going to destroy the conservative movement? New Jersey Democrats went back on their pledge to tax millionaires. Pathetic.

29

Whirrlaway 07.01.18 at 2:21 am

Far from saving us, SCOTUS has become willing to block whatever reform efforts are proposed and dismantle those previously achieved. Eventually it will get around to dismantling itself and there will emerge fresh ideas. Vote in November surely, but seriously the time has come to strengthen local defenses, literally our smaller political units, physically and morally. The Words of my House are “Learn to Grow Vegetables”.

30

nastycomment 07.01.18 at 4:17 am

@
”I’m putting ph on a diet”.

Oh Nooo!

He got Trump right where we want him – imagine that we are each on the threshold of becoming FANTASTICALLY and INCREDIBLY RICH, simply by being close to FF Von Clownstick!!

31

nastywoman 07.01.18 at 4:54 am

and about @mcmanus
”it’s over”
or
”This is the reality we need to adapt to”.

From driving across the country a few month ago – I know that the reality of my homeland is so unlike all of this… this… ‘political stuff’… and one major reality one has to adapt to – is NOT to take that ”Californian Feeling”… across the border – BE-cause one might run occasionally into some FF Fans who are as bit as uptight as our ph – BUT otherwise US reality is as much like the reality of some soccer stars:
When they are ”winning” – they are winning ”YUUUGE” – but only at exactly the moment of winning – as the next game is a completely ”new game” – and losing it – is as forgettable ‘as this ”sad” and silly episode with FF Von Clownstick – who never will have even made it to the Semis of a worldchampionship while surf’s still UP in California and in Manhattan you can’t get a place at Nobu’s on saturdays.

And – Yes – there is this ”racism” and all of this… ”other crap” in US – but at least nobody shot us – the way these two hairy dudes were shot in this old movie – when riding across the American landscape – and that’s progress? –

Right??

32

Raven Onthill 07.01.18 at 5:29 am

Even if the Democrats retake the House and Senate in November, even if they impeach Neal Gorsuch for the perjury he committed during the confirmation hearings, it will be at least 20 years to recover from the damage Trump and the Republicans have done.

But this is not likely. The rule of law at the Federal level is over for at least a decade to come. We are now governed by the whims of the wealthy and powerful. We are back into aristocratic politics, where knowing the character of the wealthy and powerful will be necessary for almost any significant business or political success.

The next likely moves from Trump are withdrawing from the WTO and NATO. Living in that America will be very much like living in the old Soviet Union; we will work very hard for poor wages and be asked to patriotically bless the most awful products of American industry, while the rest of the world forges ahead.

Meantime, environmental degradation will continue. The seas will rise.

33

bad Jim 07.01.18 at 5:40 am

Perspective, people.

I went down, to the demonstration, to get my fair share of abuse. It was a much larger demonstration than the ones we held fifteen years ago before the invasion of Iraq, which was an evil far larger than anything Trump has done.

Donald is certainly more personally objectionable than George, so much so that his Katrina moment, the inadequate response to the devastation of Puerto Rico, has escaped comparable attention, but he hasn’t cost nearly as many lives so far.

34

relstprof 07.01.18 at 6:22 am

First, what Peter K. writes @28 is pretty spot-on.

Second — “the hope that America might still awaken from the bad dream of Trump before something Really Bad happens seems dead.”

I fail to see that what happened this week really has anything to do in particular with Trump. Exactly everything that happened this week — SCOTUS rulings, Gorsuch (or a carbon), Kennedy retirement (well, maybe not exactly now but this term sometime) would have happened under Pres. Cruz or Pres. Rubio or Pres. Pence. None of this is peculiar to Trumpism, this is GOP Classic Edition brought to you by Corporate America with a healthy dose of White Supremacy. There’s a lot to lay at Trump’s feet in exacerbating it, vilely, but it’s all there in the GOP. Would Pres. Kasich be deciding on an anti-Roe nominee? 1000x yes. Look at the anti-choice legislation he signed in Ohio and tell me differently.

Short term? Surely having the same Democratic leadership for the last 12 years or so isn’t helping? But that’s on them, not us. Alexandia Ocasio-Cortez, when asked if she would support Pelosi for leadership, demurred. I’m with her.

Long term? The energy is with candidates running with the support of Justice Democrats, Democratic Socialists of America, and Our Revolution. That’s the only way to change the party, from the bottom to the top, city to city, state by state.

You want the voters to turn out, you give them the policies they want, you give them candidates that are trustworthy and connected to the actual economic conditions and experiences of constituents. AOC again — register the actual base. That base exists everywhere in the US, not just the urban coastal centers.

35

Hidari 07.01.18 at 7:15 am

Sorry if this is slightly off-topic but this comment caught my eye.

‘It all seems a lot more zero-sum and long-term now.’

Now??? Really? It’s taken you this long to see that Trumpism is a long-term political project? Gee whiz. And yes, this isn’t me being wise after the event: I posted quite a lot here after Trump’s victory (and Brexit) to point out that that, call it number magic if you want, but American politics tends to go in ’30 year cycles’. Les Trentes Glorieuses (i.e. The New Deal years) were about 30 years, obviously, then Reaganism was about 30 years, now that has broken down and you have Trumpism. It wasn’t inevitable. Obama was in power and could have radically and fundamentally changed American politics in his own image. But he chose not to.

The key point is that the ‘2 neos’ (neoconservatism and neoliberalism) have broken down, permanently, forever, and the parties most strongly connected to them (those of the centre-right and, especially, those of the centre-left) have been annihilated. The parties which have prospered, at least electorally, have been those that have seen the writing on the wall and either moved to the left (Corbyn’s Labour party, Syriza, Podemos, the Pink Tide in Latin America, although that’s fading now slightly) or (and this is sadly more frequent) moved to the populist right (Netanyahu, Putin, Erdogan, Trump, Duterte, May etc.).

News of the victories of the Democratic Socialists are of course welcome in a US context, as was the Sanders insurgency. But the Democrats have 30 years of spinelessly and obsequiously toadying to money and it’s difficult to unlearn the habits of a lifetime.

If you want my prediction (which could, of course, be wrong) I would bet that these insurgencies will fail. The Democrats will remain the Moneycrats. Due to the weirdness of the American political system, they won’t be PASOKified, so there will be another Democratic Party Government (maybe not too long after Trump’s second term either), and it will do what Democratic Governments always do: it will normalise the right wing revolution. The way Bill Clinton normalised Reaganism. (The way Obama normalised the War on Terror). The next Democratic Presidency will probably take Trumpism and take off the sharp edges, prettify the discourse, make it seem all shiny and respectable. Because that’s what the Democrats do. That’s their purpose in the American political system since about 1975.

I could be wrong, of course, but remember that any move to make the Democratic (sic) party …well…democratic, will be fought tooth and nail by the moneycrats in charge. Only by defeating them, permanently,will the Democrats be able to surf the populist wave. So that’s another possibility. But remember two iron laws of American politics:

Never underestimate the Republicans.
Never overestimate the Democrats.

36

Hidari 07.01.18 at 7:19 am

Sorry I know it’s ‘bad form’ to have another post that essentially follows on from my last but
2 more data points:

What happened just a few weeks ago in Italy and what will (probably) happen in Mexico tomorrow.

The populist tide is NOT going away. What IS going away is ‘standard’ centre left political parties who operate under the ‘business as usual’ rule.

37

J-D 07.01.18 at 7:51 am

Raven Onthill

… even if they impeach Neal Gorsuch for the perjury he committed during the confirmation hearings …

I can only hope that is an actual possibility. You dream magnificently.

38

Hidari 07.01.18 at 8:49 am

‘The next likely moves from Trump are withdrawing from the WTO and NATO. ‘

Every cloud, eh?

39

Hey Skipper 07.01.18 at 8:52 am

[John Holbo:] Skipper: “The only people who could possibly be shell shocked are those for whom the Constitution is merely an impediment to their desires.”

Why?

Take Janus for instance. It is obvious that through opaque accounting, public service unions charged far more for agency fees than reality could possibly bear. Which meant that compulsory dues also amounted to compulsory speech: members were required to subsidize the political goals of a private organization. This is particularly troublesome because most public service unions actively support political causes having nothing to do with compensation or working conditions. Never mind that compensation and working conditions are themselves political questions. So even agency fees are compelled speech. Compelled speech, no matter how much it affects public service unions, is antagonistic to the 1A. (Full disclosure: I am a union member in a right to work state. Nearly 100% of the employees — I included — are members. Why? Because the union is focused solely on compensation, work rules, and contract enforcement: the value for money is obvious, and the union doesn’t pursue extraneous political objectives.)

Or Trump v. Hawaii. The Constitution and federal law give the president explicit and extensive control over immigration. Leaving aside for the moment whether the 1A’s guarantee of freedom of religion extends to foreign nationals, the administrations ban covers less than 8% of all muslims. Whether one agrees with the provided rationale, calling that a ban on muslim immigration is grotesquely abuses the word “ban”. Further, to have decided otherwise would have put made the judiciary not a coequal branch of government, but rather a superior branch. Any number of judges could take it upon themselves to police executive branch speech and over rule executive branch decisions, which, combined with universal injunctions, would lead to the judiciary appropriating executive branch power.

Masterpiece was a perfect example of viewpoint discrimination, and showed that stretching public accommodation law beyond its original intent would have the effect of allowing government edict to vitiate 1A guarantees to freedom of expression and conscience.

In each case, the Constitution provides a limiting principle — a brake — on factional political desires. And since the shoe will inevitably trade feet, one would think this is something worth welcoming, not criticizing.

40

bob mcmanus 07.01.18 at 9:48 am

Quiggin, 27: A margin of 7 to 8 percentage points is enough to overwhelm the gerrymander* and win the House.

It’s all about turnout in midterms, and McConnell/GOP have shown some skill, 2010, 2015, and 2016 had more Republicans vote in Congressional races.

The timing of the Justice nomination is interesting. I would have expected a later rollout than July 9, especially since the nominee will likely have already been vetted and approved, a recent lower court judge. You would think holding off until after midterms might be more motivating.

Manchin, Heitkamp, and Donnelly all voted for Gorsuch, and Doug Jones is really iffy. McConnell probably doesn’t even need Collins and Murkowski.

What happens to Democratic morale after those four confirm a monster? Are we really going to listen to “Well, at least he has a “D” to caucus with Democrats?” I wouldn’t be surprised if McConnell gives them help to get re-elected, and then one or more switch parties in 2021. Certainly if they provide an essentially meaningless vote to deny confirmation, turnout against them will be motivated.

I think maybe Dems get a small majority in the House and lose seats in the Senate.

But September-October will be crazy.

41

Lee A. Arnold 07.01.18 at 10:45 am

Peter K. #28: “For a lot of voters, just a public option for health care is not enough.”

Most voters didn’t even know what the public option means; it would shortly become the single-payer. But it takes three or four more sentences to explain how and why. This gets to both of my points: 1. the reality-based voters don’t automatically know enough and there is no messaging network to set the basic ideas, and 2. the Democratic Party is timid and floundering, and contents itself to be correct in principle. So everybody waits for an emotion to happen, to carry the day to victory.

42

stephen 07.01.18 at 11:38 am

ph@17: “the ‘other community’ is that of African-American parents, where 90 percent of their male high-school age children can’t read or write”.

I can believe that may be lamentably true in some misfortunate parts of the remarkably diverse USA; but surely it can’t be true across the nation, can it?

ph is currently allowed only one post a day and this may not be his choice for his restricted right of reply: maybe some other well-informed person can cheer me up by explaining that he was seriously exaggerating.

43

John Holbo 07.01.18 at 12:56 pm

Skipper, have you ever found a Supreme Court decision to be wrong, disappointing or poorly reasoned?

44

John Holbo 07.01.18 at 1:07 pm

I am preparing to correct Skipper for his signature lapses of legal reasoning (familiar from former threads.) I could also point out that he has failed reading comprehension. In the original post I did not say I was shocked by any (or even all!) of the Courts’ decisions. But I am a generous soul. We proceed straight to the legal stuff.

45

Layman 07.01.18 at 1:18 pm

@stephen

He’s not even exaggerating. It’s a lie, pure and simple.

https://nces.ed.gov/NAAL/PDF/2006470_1.PDF

46

LFC 07.01.18 at 1:59 pm

“September-October will be crazy.” Esp since b mcmanus himself will be preparing to move from TX to one of the coasts in furtherance of his secession strategy.

47

Hey Skipper 07.01.18 at 2:04 pm

[John Holbo:] Skipper, have you ever found a Supreme Court decision to be wrong, disappointing or poorly reasoned?

Many. Kelo leaps immediately to mind. Dred Scott. Korematsu. Obergefell (NB: I don’t disagree with the outcome, but rather what is perhaps the worst reasoning of any decision ever.) Roe v. Wade (some questions the Constitution can’t answer; in that case, the SC shouldn’t be answering them).

I am preparing to correct Skipper for his signature lapses of legal reasoning (familiar from former threads.)

I don’t recall ever having made any comments on legal reasoning here. If I’m wrong, I am sure you can correct me.

BTW, since I am not a lawyer, I have read what lawyers have to say about these recent decisions, and others. So if you have problems with my legal reasoning, take it up with SCOTUSBlog.

In the original post I did not say I was shocked by any (or even all!) of the Courts’ decisions.

This is the opening sentence of the OP:

Like lots of folks, I’m pretty shell-shocked by the latest round of Supreme Court decisions …

I think you have failed to comprehend your own writing.

48

John Holbo 07.01.18 at 2:18 pm

“Many.”

Excellent. A one word answer will suffice. In my post I indicated my disappointment with the latest round of Supreme Court decisions – without giving the grounds for my disappointment – and you responded that the only way this could be the case is if (and I quote), I am one “for whom the Constitution is merely an impediment to their desires.”

But now it emerges that you, too, Skipper, have been disappointed by court decisions. Do you think of yourself as a person for whom the Constitution is merely an impediment to your desires?

49

John Holbo 07.01.18 at 2:20 pm

” Like lots of folks, I’m pretty shell-shocked by the latest round of Supreme Court decisions …

I think you have failed to comprehend your own writing.”

Skipper, skipper, truly your name is a well-chosen one. What is the bit that you skipped over with the dot-dot-dot?

50

Glen Tomkins 07.01.18 at 3:10 pm

“Either the left struggles and wins by huge margins, to take the (undemocratic) heights the Republicans currently command, …”

We just need simple majorities in House and Senate, plus the presidency, to reverse everything the Rs have done, including their packing of the courts. Even the narrowest of majorities would be all that is required. That, of course, and the willingness to use the power of the legislative authority.

The problem is presented in your use of the scare parenthesis. We have grown so accustomed to only the other party being willing and eager to use the power of govt, that govt power alone seems somehow undemocratic to us. We would have to trample norms to retake and use power, and we are so used to only the unjust and anti-democratic other party wanting to use power, that we see any norms at all in our politics, as something to shore up rather than trample.

These are the obvious measures our side would have to do to destroy the political power of the other party, all of which are achievable with even the narrowest of majorities in House and Senate, plus the presidency. Make the 11 million undocumented citizens, and admit Puerto Rico and the District as states. Pass a federal law that accomplishes popular vote election of the president by making EC votes tallied by terms of the national voter compact the only EC votes that Congress will count. Pass comprehensive voting law that limits gerrymandering and encourages voting by as many people as possible. Make all this take effect before the next election, and the Rs are done as a national party.

What norms would have to be trampled to accomplish this? Senate rules that in any way inhibit simple majorities would have to go. SCOTUS might have to be re-packed, or its jurisdiction over election law taken from it, both doable by simple legislative majorities. Good riddance to both norms. They are anti-democratic norms. Getting rid of them would be good in itself, quite aside from the practical necessities of power.

If we can’t reconcile ourselves to wielding power unless we stay strictly within all norms, including the antidemocratic ones that accreted over generations of Congress ducking its responsibility to govern the US, then, yes, the situation is hopeless. But if our side is willing to actually govern should it win the trifecta — by even the narrowest of margins — then every disaster we see now as we survey the political scene can be easily put right.

51

Hey Skipper 07.01.18 at 4:11 pm

[John Holbo:] But now it emerges that you, too, Skipper, have been disappointed by court decisions. Do you think of yourself as a person for whom the Constitution is merely an impediment to your desires?

SC decisions are not the Constitution.

Skipper, skipper, truly your name is a well-chosen one. What is the bit that you skipped over with the dot-dot-dot?

Paraphrasing your intro, you were shell-schocked by the decisions, found none of the decisions shocking, appointments, and the conclusion that the SC is dead to progressives for the foreseeable future. Also, America is sleep walking into something Really Bad Happening because Trump.

If my paraphrasing misses your intent, the fault is mine.

My point is that, paying heed to the Constitution, rather than the merely the result a jurist wishes to see that day, none of the decisions should come as a surprise. Further, because they shouldn’t be a surprise, Constitutionally speaking, then the appointment of “conservative” justices points towards jurisprudential predictability that is based upon the Constitution and institutions, not Trump.

That is good for everyone, progressives included, for two reasons. Decisions will be based on limiting principles, first, which, second, means the SC should become less pivotal, not more. Decisions like Obergefell effectively placed a huge political decision in the opinion of one man. Ignoring the outcome of the decision — I’m glad my gay brother became happily married shortly afterwards — that is exactly the kind of thing that gives the entire country fits every time a justice leaves the court.

(Oh, and if I was to become the nominee, I would make it clear that I favored an amendment limiting federal judges to staggered 18 year terms, with no possibility of re-appointment.)

52

LFC 07.01.18 at 5:33 pm

@Skipper

To run afoul of the Establishment Clause, the travel ban did not have to ban all Muslims in the world from entering the US; rather it had to be directed primarily at Muslims, which this was. And if the waivers and exceptions are not being observed, as Breyer suggested in his dissent, that strengthens the case against it.

More generally, the Constitution and its putatively limiting principles do not dictate particular results in these 5-4 SCOTUS cases. They inevitably involve political and moral judgment, not just the simple, straightforward application of legal principles to facts.

53

John Holbo 07.01.18 at 6:08 pm

“If my paraphrasing misses your intent, the fault is mine.”

You are still skipping over the dot-dot-dot, Skipper. But we must all be true to our natures. Perhaps you are not at fault for your faults – though they remain faults. (If you are really curious what my post says, I do recommend reading the part you skipped.)

“SC decisions are not the Constitution.”

If SC decisions are, as you say, not the Constitution then how do you know that MY dismay at decisions can only be indicative of my disregard for the Constitution (whereas yours are indicative of a loftier judicial attitude)?

Answer: you are presupposing a naive view of Constitutional interpretation. Namely, that originalism has some obvious, demonstrable, neutral superiority and determinateness, such that appointing originalists is tantamount to appointing neutral, restrained judges. And appointing anyone else is tantamount to appointing unrestrained, whimsical radicals. This is just a false view. The opposite would be closer to the truth. (But, honestly, you shouldn’t retain the picture even for purposes of standing it on its head, for reduced inaccuracy. You should discard it.)

“My point is that, paying heed to the Constitution, rather than the merely the result a jurist wishes to see that day, none of the decisions should come as a surprise.”

No one writes opinions that say things like ‘hey, here’s what I want today, so what I say goes’. Of course, so-called originalists SAY that ‘living constitutionalists’ are blithely indifferent to what the Constitution says. But that’s just rhetorical elbow-throwing. It doesn’t reflect reality. You’ve drunk the kool-aid if you believe it.

Originalism is not without its hermeneutic and philosophical attractions, in theory. But – meanwhile back on earth – it’s a highly ambiguous, equivocal, indeterminate method. As such, it’s morally hazardous, since it invites self-serving confabulation. Far from being a bulwark against partisanship, it’s a strong invitation to it.

There’s nothing worse, for introducing bias, than a method that you delude yourself won’t introduce your biases, whereas in fact it obviously will.

Last but not least, originalism is incompatible with judicial restraint and institutionalism.

Richard Posner wrote some of the most cogent critiques of Scalia-style originalism. I endorse this argument and could hardly hope to say it so well myself.

https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism

https://www.nytimes.com/2015/12/03/opinion/justice-scalias-majoritarian-theocracy.html

54

stephen 07.01.18 at 7:02 pm

Layman@45: many thanks. It is always a relief to learn that, if something seems too bad to be true, it is.

We won’t argue about where serious exaggeration becomes an outright lie: not in this case important, I think.

55

John Holbo 07.01.18 at 7:15 pm

Hidari:

“Sorry if this is slightly off-topic but this comment caught my eye.

‘It all seems a lot more zero-sum and long-term now.’

Now??? Really? It’s taken you this long to see that Trumpism is a long-term political project? Gee whiz”

The internet is not a good medium for conveying conceptual nuance but I tried to convey some, against the grain, by means of ‘seems’. Evidently I failed. Sometimes you know something. But then something happens and you KNOW it. You know?

56

al 07.01.18 at 7:22 pm

The curious notion that manipulating the composition of the federal courts by refusing to hold votes and hearings is business as usual and well within constitutional norms so OK, while adding (or subtracting) seats on the federal bench (including the SC) by actually voting on a bill is this thing called “packing” and that’s bad is merely convention and conventions can be changed so we start now. An “Access to Justice” act would increase the number of judges on the District and Appeals benches to the benefit of all. That a Democratic president and Senate would be the ones appointing and confirming all those judges in their thirties and forties is a bonus. It strikes me that there is a upward practical limit to the size of the SC (15, 17?) and the Dems need to go there.

Hopefully the Dems start taking the long view in terms of state and local elections and the mid-term problem. Controlling enough state houses to bring something like the National Popular Vote Compact into being would do an end run around the Electoral College.

Nationalize the standards and methods of voting (election day a holiday and not in the middle of the work week, vote by mail, etc.?) and make a constitutional amendment on voting rights a goal. Enlarge the House, end first past the post and congressional districts.

The Senate will always be an undemocratic wild card but making the House and the presidency more democratic would likely help there.

57

alfredlordbleep 07.01.18 at 7:54 pm

Old-fashioned, true-blue

And let’s recall the shorthand pitch the rightwing uses (in concert with ranting against “activist” judges in former (?) days):

We are the champions of COMMON SENSE judges [nevermind when Roberts & Co. push contorted reasoning or just outright baldly political assertion]

JH, thanks for the TNR Posner.

58

Layman 07.01.18 at 7:54 pm

Skipper: “I have read what lawyers have to say about these recent decisions, and others. So if you have problems with my legal reasoning, take it up with SCOTUSBlog.”

There is another possible explanation you’re excluding.

Otto: Apes don’t read philosophy!
Wanda: Yes they do, Otto, they just don’t understand it.

59

LFC 07.01.18 at 9:34 pm

None of the Justices is actively indifferent to what the Constitution says (in the sense that none of them gets up in the morning, rips up a small copy of the Constitution while saying “I don’t give a f*** what this says”) and most or all of them can probably look in the mirror and tell themselves that what they do every day does have a legal (as opposed to nakedly political) component. And they’re right in that it has a legal component. But anyone who has ever read even a handful of Supreme Court decisions in controversial or important cases cannot be unaware that moral and political, as well as prudential and institutional, judgments come into the decisionmaking. It’s like all these things get stirred into a big pot which the different sides of the Court put different flavors into, and then when it’s actually served it comes out in SCOTUS-speak or federal-court-speak (which is a distinctive kind of prose diction and style), but the crucial stage is when the ingredients get put into the pot and at that stage political dispositions do matter. Ok, so much for culinary analogies.

(And then there’s Justice Thomas who seems to be cooking in an entirely separate kitchen about 50 percent of the time: not being derogatory, pretty much just a fact. But that’s neither here nor there for these purposes.)

60

Alan White 07.01.18 at 10:56 pm

JH:

“Originalism is not without its hermeneutic and philosophical attractions, in theory. But – meanwhile back on earth – it’s a highly ambiguous, equivocal, indeterminate method. As such, it’s morally hazardous, since it invites self-serving confabulation. Far from being a bulwark against partisanship, it’s a strong invitation to it.”

Gawd I wish I’d said that!

61

Suzanne 07.01.18 at 11:15 pm

@15: Clinton certainly could have made more of the Supreme Court in the balance. That said, I’m not sure how much of a difference it would have made, given that the evangelical base of the GOP have a laser focus on Roe v. Wade and the Democratic base had other fish to fry (they’re scared about Roe now, of course, a couple of years too late).

It must also be said that Obama didn’t give Clinton much to work with. Had he nominated someone more energizing and/or more ethnic than the milquetoast Garland, who did nothing to excite the base and proved no more palatable to the Republicans than a more liberal choice would have done, the Court might have become more of an issue for Democratic voters.

This is all the more depressing in that it was so predictable. Obama is certainly an intelligent man but perhaps not a terribly shrewd one. Interesting that after eight years of pitched battle with Mitch McConnell, first as the leader of an obstructive minority and then as the leader of a recalcitrant majority, Obama actually thought he could appease, or at least neutralize, his adversary by putting up a boring nominee.

62

J-D 07.02.18 at 5:53 am

Hey Skipper

BTW, since I am not a lawyer, I have read what lawyers have to say about these recent decisions, and others. So if you have problems with my legal reasoning, take it up with SCOTUSBlog.

I’m not sure what you’re looking at on SCOTUSBlog. I seldom look at it myself, but since you mentioned it I searched it for references to the first case you mentioned, Janus. Not at all to my surprise, what I found was not a consensus among the lawyers commenting endorsing the position of the Supreme Court majority, but rather a division between lawyers endorsing the position of the majority and lawyers endorsing the position of the minority. I would be slightly surprised to find anything other in most major cases decided by a majority, although Janus is the only one I actually checked on.

and here

My point is that, paying heed to the Constitution, rather than the merely the result a jurist wishes to see that day, none of the decisions should come as a surprise.

Given that, broadly speaking, in any given case the Supreme Court has a choice between finding for the appellants and finding for the respondents (yes, I know it’s more complicated than that, but it’s true to a useful first approximation); and given that both sides will typically have experienced lawyers state the case as persuasively as possible; then, given that, whichever way the Court finds there is unlikely to be much that’s seriously surprising about the finding. Are you surprised by the opinions of the minority in Janus?

However, I can be appalled without being surprised. Indeed, every day, all over the world, people engage in all kinds of behaviour that I find appalling but not surprising. I’m not a diligent follower of the US Supreme Court, but I have a vague general recollection of reading a few things over the years about Antonin Scalia, for example, and as far as I can recall I found nearly all of it appalling but not surprising.

63

Layman 07.02.18 at 11:29 am

Suzanne: “Obama is certainly an intelligent man but perhaps not a terribly shrewd one.“

In the particular example that prompted this comment, it’s hard to see what the ‘shrewd’ play was. McConnell had the power to steal the seat, and was going to steal the seat, so he stole it. Nothing Obama did or said would change that.

I think a lot of people don’t grasp the pressure Obama felt (feels!) not to fuck up as the first black President, but it goes a long way in explaining his relentless drive to always be reasonable, and always act as if the other side might be reasonable, too.

64

ph 07.02.18 at 11:42 am

Hi John. Dignity? I have too little to worry about, but thank you for the concern. A comment per day is fine. Hope the links work.

The way forward?

As I mentioned I’m watching election night coverage again and enjoying every minute! CNN’s is better than I recall. There are perfectly good reasons to object to Trump and to even dislike/loathe him. I disliked Obama the first time I heard him speak. Obama reminded me instantly of my time selling cars. He has that glib self-assurance that so too many easily mistake for expertise and intelligence. The fact that Obama in 2007 was already a highly-accomplished grifter frightened the hell out of me. I resolved on the spot to support any Dem in 2008 but him. The notion, however, that Obama was a Manchurian secret Muslim terrorist struck me as too absurd for even the most gullible Free Republic regular to consider. I’m therefore relieved that some of the ‘Trump is Putin’s puppet’ fever that still grips so many ‘intelligent’ people seems to have somewhat receded.

As I stated earlier, however, I think ‘Trumpism’ is a particularly unhelpful term.  I’m surprised intelligent people choose to employ it. I’ve always preferred ‘the racist Republican right’ for politically-slanted invective. Yet, given the fact that self-declared liberals seem, at least, to be utterly unaware/indifferent to the plight of African-American youth (no need to mention any names!) the question of racism in the Democratic party seems a very live issue. I prefer today to assume that most of us are pretty much consumed with self-interest. Bad me.

A 2013 study reports that only 17 percent of African-American 8th-grade boys nationwide are reading proficient – Education Week  And so?
In 2016, 3/4 African-American high school age males in California (Democrats rule!) could not read reports The Root Just 3/4 black high school students statewide can’t read. Progress!

Stuff Happens! (CNN) “Small pluralities of black voters proved immune to Hillary Clinton’s (more of the same)
electoral pleas, casting their votes for third party candidates or
staying home to watch as Rome burned.”

Donald Trump ‘a Birther’ is elected President of the United States. 

Picture coming into focus? Hope so, cause the key word search Black voters stay home 2018 turns up some interesting results. I’m not going to link to the Hispanic support for Trump up 10 percent because I can’t be bothered. But I can be bothered to inform myself. Strange, huh?

And for John, Much more Dotti

65

Lawrence Maggitti 07.02.18 at 2:16 pm

John, why isn’t kidneystones/ph banned? Not because his opinions are disgusting. though they are – alternate viewpoints are often a positive good. But because he is a troll, distilled in the purest form.

66

Another Nick 07.02.18 at 3:06 pm

ph: “In 2016, 3/4 African-American high school age males in California (Democrats rule!) could not read reports The Root. Just 3/4 black high school students statewide can’t read. Progress!”

The report data showed 49% of 8th grade African-American males “did not meet the achievement standard and need substantial improvement to demonstrate the knowledge and skills in English language arts/literacy needed for likely success in entry-level, credit-bearing college coursework after high school”.

Nowhere did the report say they “can’t read”.

67

politicalfootball 07.02.18 at 3:20 pm

Whether one agrees with the provided rationale, calling that a ban on muslim immigration is grotesquely abuses the word “ban”.

I am shocked — shocked! — that you would accuse President Trump of abusing the English language.

68

politicalfootball 07.02.18 at 3:53 pm

The notion, however, that Obama was a Manchurian secret Muslim terrorist struck me as too absurd for even the most gullible Free Republic regular to consider.

And yet, Trump rode birtherism to political prominence.

I’m therefore relieved that some of the ‘Trump is Putin’s puppet’ fever that still grips so many ‘intelligent’ people seems to have somewhat receded.

It is still unbelievable to me the things that people say about Trump. They say he likes to grab women by the pussy; that he thinks journalists should be beaten up; that he wanted to institute a Muslim ban; that he mocked a disabled journalist; that his minions met with Russians to get dirt on Hillary; that 20 Trump cronies have been indicted and five convicted.

The list goes on. They never said any of those things about Obama. How can that be fair?

Admittedly, it is true that people accused Obama of wanting to meet with Kim Jong Un without sufficient preconditions, but they accuse Trump of actually having gone to Singapore and doing this. So even there, we see how the media treats Trump differently than Obama.

69

alfredlordbleep 07.02.18 at 4:41 pm

Glen Tomkins @50 in the course of making good points has this, “SCOTUS might have to be re-packed, or its jurisdiction over election law taken from it, both doable by simple legislative majorities.”

Now the latter notion is very interesting and reminded me of a not too distant rightwing threat (couldn’t recall off-hand). However, it seems court-stripping does not apply to the Supremes*:

Congress may define the jurisdiction of the judiciary through the simultaneous use of two powers.[1] First, Congress holds the power to create (and, implicitly, to define the jurisdiction of) federal courts inferior to the Supreme Court (i.e. Courts of Appeals, District Courts, and various other Article I and Article III tribunals). This court-creating power is granted both in the congressional powers clause (Art. I, § 8, Cl. 9) and in the judicial vesting clause (Art. III, § 1). Second, Congress has the power to make exceptions to and regulations of the appellate jurisdiction of the Supreme Court. This court-limiting power is granted in the Exceptions Clause (Art. III, § 2). By exercising these powers in concert, Congress may effectively eliminate any judicial review of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by “knocking [federal courts]…out of the game.”[1]

https://en.wikipedia.org/wiki/Jurisdiction_stripping

*which would make the phrase, “co-equal branches” just goofy if it did

70

Lawrence Maggitti 07.02.18 at 5:00 pm

Another Nick,

Hook, line, and sinker.

The problem with ph isn’t so much the specifics of his misleading statements (misleading as they are). The point is that every word is a troll. Concerned about African American achievement? That’s one of the clearest examples of an area where Trumpism is demonstrably much worse that the Democratic alternative, even if one is skeptical of how well the Dems are addressing the issue. And of course ph knows that, and knows that we know it. He’s trying to trigger us. Most people on this forum no longer fall for it. You, on the other hand ….

71

Suzanne 07.02.18 at 6:41 pm

@63: Respectfully, I really don’t see what Obama’s skin color has to do with the selection of Garland. Let us say that Obama realized that McConnell was going to do his worst and get away with it. All the more reason, and perfectly reasonable, to look to the election and go with a nominee that would fire up the base about the Supreme Court. I do not see how such a decision would have endangered his reputation for reasonableness, well established by that time, or risked transforming his image into that of an Angry Black Guy. As it is, he did, to employ your term, fuck up, or more gently, he miscalculated.

I see by the Times that FWIW, Michael Tomasky agrees with me:

https://www.nytimes.com/2018/06/28/opinion/sunday/the-right-has-won-the-supreme-court-now-what.html

“That, of course, is in all likelihood exactly why Mr. Obama didn’t nominate him — too political. Mr. Obama appeared to have deluded himself into thinking that if he advanced an older man (Judge Garland was 63, meaning he would not be on the court for 40 years) with something of a centrist reputation, Mitch McConnell might decide to be a reasonable fellow and give him a vote.”

72

Glen Tomkins 07.02.18 at 9:01 pm

alfredlordbleep, @69

Well, for one thing, “coequal branches” is a goofy term, and worse, an inaccurate description of both how Constitution frames the govt of the US, or how any govt should be constituted. The only real power is the legislative power. This has to be true if we are to have a democracy. The US president’s only real power stems from his being given the veto, and thus part of the legislative power. The only real power of SCOTUS is the judicial review of the legislative power that it has successfully usurped.

The idea that the three are coequal by design and intention of the Framers is a relatively late invention designed to convince 5th grade Civics students that the systemic Congressional abdication of its power to the president and the courts is normal rather than alarming. In fact, lately, you are most likely to hear the three coequal branches thing advanced as part of some plea that Congress be graciously allowed some role, that it isn’t really as irrelevant as recent practice (mostly its own) has made it. Congress has let itself become the Lepidus of this triumvirate.

Secondly, the item you quote seems to argue against your summary thereof.
“By exercising these powers in concert, Congress may effectively eliminate any judicial review of certain federal legislative or executive actions and of certain state actions.”
The item does say that Congress can too strip jurisdiction.

And it’s not as if in this particular jurisdictional territory, federal elections, Congress really has to go on the offensive. As Al Gore famously observed, the courts are not, formally anyway, the controlling legal authority in federal elections, Congress is. Each house is the final judge of elections to itself, and both together are the final judges of presidential elections. Had the R Congress that convened in 2001 possessed an ounce of self-respect and respect for their position, it would have angrily dismissed the theft of the presidential election accomplished by Bush v Gore, and instead stolen the election for Bush its own damn self, as God and the Framers intended. But they’re punks. No self-respect, even as thieves for their chosen profession of thievery.

73

Faustusnotes 07.03.18 at 12:01 am

To me a sufficient explanation for Obama’s mistake with the supreme Court is simply that he didn’t realise McDonnell would be such a ratfucking. He nominated a vanilla judge thinking the ratfucking would go no further than blocking someone more extreme. Remember in the sweet pure days of 2015 we hadnt yet realised that the Republicans are traitors as well as wreckers, so we still thought they might have some respect for their own country’s traditions. Now, not so much.

John, it’s nice that pH is down to one rant a day but is one racist statement a day okay with you? If you have any desire to stop your blog being used to peddle racist lies like the one above, you might want to finally cut them off at the source. It’s your blog, and if you want it to be used for peddling racist lies it’s your decision, but…

74

Hey Skipper 07.03.18 at 12:12 am

[John Holbo:] Answer: you are presupposing a naive view of Constitutional interpretation. Namely, that originalism has some obvious, demonstrable, neutral superiority and determinateness, such that appointing originalists is tantamount to appointing neutral, restrained judges.

No, I’m not presupposing some naive interpretation. After all, many of the words in the Constitution are easily understood as they stand, and as for many of the rest, the meaning at the time is also easily enough discovered. Nor am I insisting upon some demonstrable superiority. Rather, making a concerted effort to adhere to the Constitution as written imposes real restraints on judicial adventurism.

As I mentioned above, the Obergefell case was, Constitutionally speaking, undecidable. The majority opinion should make that clear — it is just about the fluffiest legal writing in history. Similarly, the immigration decision overturned a 9th circuit court injunction that was based upon no law, nor any precedent. And Kagan’s dissent didn’t make things any better. Korematsu was completely irrelevant.

In contrast, ignoring the text has the effect of removing constraints upon the judiciary. That’s fine when the majority pleases the left most of the time. But when the tables turn as, thankfully, they still do, then the left blows a collective aneurysm.

Richard Posner wrote some of the most cogent critiques of Scalia-style originalism. I endorse this argument and could hardly hope to say it so well myself.

I have read them, and didn’t find them persuasive. And, should you be interested in expert shellacking, I’m not the only one.

Take another example. Title VII, when passed, pertained only to sex based discrimination. Courts have since effectively re-legislated Title VII to include sexual orientation and identity. If you wish to have no constraints on the judicial branch, then that is fine. Otherwise, the solution is obvious: stick to the clear meaning of the law as originally passed, and leave the legislating to Congress.

75

John Holbo 07.03.18 at 3:46 am

Skipper: “Nor am I insisting upon some demonstrable superiority. Rather, making a concerted effort to adhere to the Constitution as written imposes real restraints on judicial adventurism.”

Objection! Relevance!

76

lampoon 07.03.18 at 4:22 am

Hey, all of you Eeyore’s out there, remember what Legolas said to Gimli as they were navigating the Anduin upstream to rescue a burning Minas Tirith: Up with your beard! Oft hope is born, when all is forlorn.
I, for one, am encouraged by the victory of Ocasio-Cortez. I know, not many votes were involved compared to a nation of hundreds of millions, but look at how she succeeded. She wore out her shoes visiting every nook and cranny of her district. It reminded me of when Lyndon Johnson was campaigning for his first trip to Congress, how he traversed the whole of the Texas hill country, a perilously beautiful landscape with shallow topsoil and uncertain weather, and nearly if not the poorest congressional district in the nation. He wore out his shoes and the tires on his car, but he listened to their concerns and fears and hopes, and when he went to Congress, he did not forget them. He helped pass the Rural Electrification Act, and LBJ’s district was one of the first areas to benefit. And that, in my opinion, is exactly the kind of thing the federal government should do. It is a benefit to the commons that as well as being capital intensive, is not susceptible to the advantages offered by a competitive market (maybe because of the network effect?).
I believe Occasio-Cortez will not forget the people she represents. Plus, she studied economics at University and survived it, by which I mean that she seems to understand the fiscal policy advantages enjoyed by a fiat currency with a floating exchange rate that is so liquid it makes up almost 2/3 of the world’s reserve currencies; that taxes do not drive (or limit) the sovereign’s ability to spend its fiat currency; and that full employment is a goal, not a catastrophe. I think she has noticed that anti-trust laws, such as they are, have not been enforced for over three decades.
The Supreme Court is by design an undemocratic body. Its scope is strictly limited. I have no expectation that it will do more or less than an home plate umpire. If one wants to take control of the policy agenda, do not overlook state legislatures. The Republicans have been gaining ground there for more than a decade or two, but maybe now we are seeing the turn of the tide. Early primary results have been encouraging. Don’t write off the Midwest and Rust Belt. The key is to give them a voice, and real results. And it is definitely doable.
Macroeconomics is important.

77

J-D 07.03.18 at 6:13 am

Hey Skipper

Everybody knows that the Supreme Court frequently hands down split decisions, and not just in rare exceptional cases. This is also true of other highest-level appellate courts (such as the High Court of Australia, in my own country).

How do you explain this fact?

The way I explain it is that part of the job of judges is to decide what the law is going to be, and different judges have different preferences/attitudes which affect how they think the law should develop.

Given that these differences of preference/attitude exist among judges on the highest appellate courts, the natural expectation is that similar difference will be found among the general population, including you and me (and John Holbo).

It seems that Antonin Scalia, for example, had some preferences/attitudes which appall (although they do not surprise) me, and from that it is only to be expected that some of his judicial decisions appall (but not surprise) me.

If you have different preferences/attitudes from me, then the natural expectation is that some judicial decision which appall me won’t appall you, while some that appall you won’t appall me.

There is at least one alternative way of understanding the situation. There is a conceivable view that judges (or at least appellate judges) are not supposed to decide what the law is going to be but only to declare what the law is. But then, how is the frequency of split decisions to be explained? It could be explained, I suppose, by incompetence or crookery, but is that the explanation you want to adopt?

If, to take the example you mention, the decision of the majority in Obergefell was not just wrong but obviously and incontrovertibly wrong, if it was absolutely clear what the law was and the judges who made the majority decision simply defied it, how do you explain that without saying those judges were either too incompetent for their job or too dishonest for their job?

78

Layman 07.03.18 at 10:20 am

Suzanne: “Respectfully, I really don’t see what Obama’s skin color has to do with the selection of Garland.”

Next time I’ll include more of your comment:

“Obama is certainly an intelligent man but perhaps not a terribly shrewd one. Interesting that after eight years of pitched battle with Mitch McConnell, first as the leader of an obstructive minority and then as the leader of a recalcitrant majority, Obama actually thought he could appease, or at least neutralize, his adversary by putting up a boring nominee.”

I’m saying I don’t think he thought that being reasonable would work at all. I think he was smart enough to understand that McConnell would take advantage of the power the R’s had, but he was obligated by history to be the reasonable one, so that no one could criticize him as not being up to the job.

79

ph 07.03.18 at 12:54 pm

We welcome debate as long as we set the discourse boundaries and determine what positions can be expressed. Democrats desperately need a debate over discourse boundaries – all opinions are welcome except those of conservatives.

Which creates something of a problem ‘going forward’ given that “Sixty-five percent of African-American Millennials support charter schools.”
(the Hill)

My point is not to ‘troll’ or ‘trigger’ members of the CT community. Get under your skin? Too easy, and I frankly shudder at the very thought. No, the only reason I show up is to do something infinitely more challenging – change a mind, or two. And I occasionally do.

Let’s not forget just how wrong the CT community was (and still is IMHO) on the subject of Donald Trump. This is a community of proud academics – experts in the social sciences and other disciplines of considerable merit. But every time Holbo or Corey tried to introduce ‘another’ opinion – namely that Trump might win, precisely the same individuals who are now crying ‘troll’ and ‘racist’ rose up to shriek against the very mention of the possibility.  One deranged individual actually mounted a campaign to have Corey banned from his own blog – for the ‘racist’ act of suggesting HRC might lose.

So, the CT community is all about dissent? If you say so.

In 2017 CT turned to John Brennen, Steele, and the very folks who brought us the Iraq invasion to ‘explain’ the Democratic Party’s defeat. Why? Good question. My own view is many still can’t accept the possibility that some black people and others have priorities and concerns that do not include making a geriatric white millionaire in a pant-suit the first female president of the United States. Sorry, but that seems to be the case. Electing the first female president wasn’t enough for folks struggling to find schools where the failure rate wasn’t 75 percent for people of color.

And the best part? Pointing out the obvious makes one a ‘troll’ and a ‘racist.’

The largest part of the CT community explicitly ignored the real possibility of a Trump victory, and shut down Holbo and Corey every time the two tried to broach the topic. That’s not social science. That’s not science of any kind. Solutions aren’t ‘republican’ or ‘democrat.’ They’re just possible solutions to serious problems. Ignoring these problems, and limiting the solution set can have serious consequences – such as The Trump presidency. Get it?

Hope so, cause I’ve no intention of spelling it for you out again in the near future.

That’s it from me, John. Cheers!

80

JimV 07.03.18 at 1:34 pm

If this were my blog …, well. who cares what I would do, but I think I would have a rule that if someone makes a comment that seems to be a deliberately inaccurate representation of a cited source, I probably would not ban that person, but I would replace that comment with some statement that it had to be deleted because it was untrue. I would hope this would motivate the commenter to be more careful in his (sorry for my gender bias here) subsequent statements, and anyway the comment would not be able to mislead any later readers. I recognize that moderation is a time-consuming and dirty job.

While I’m here, re President Obama’s nomination of Garland, I am in total agreement with respected commenter Layman. The record will show that prior to that choice I commented somewhere here that McConnell was obviously going to block whomever President Obama nominated, and so the best thing PO could do would be to nominate someone well-qualified and moderate and be seen as doing his job rather than partisan politics, in contrast to McConnell. I may well have been wrong in that assessment but it still seems reasonable to me.

81

Hey Skipper 07.03.18 at 1:39 pm

[J-D:] Everybody knows that the Supreme Court frequently hands down split decisions, and not just in rare exceptional cases. This is also true of other highest-level appellate courts (such as the High Court of Australia, in my own country).

How do you explain this fact?

Because no non-trivial legal system is internally consistent. For example, a balance must always be struck between the rights of the victims, and those of the accused. Because that balance isn’t explicitly described, people’s axiomatic preferences come into play; those, in turn are affected by society’s prevailing attitudes which are far from static. Individual judges will their own emphasis on existing law, precedent, and experience. Enough police misconduct over time leads to the Miranda warning, differing judicial attitudes, each legally sound, leads to a 5-4 decision.

Similarly, public accommodation law strikes a balance between conflicting equal access, property, and association rights, and that balance has changed over time, as will judicial attitudes, which won’t all be the same at any given time, even while strictly relying on the Constitution, law, and precedent.

If, to take the example you mention, the decision of the majority in Obergefell was not just wrong but obviously and incontrovertibly wrong, if it was absolutely clear what the law was and the judges who made the majority decision simply defied it, how do you explain that without saying those judges were either too incompetent for their job or too dishonest for their job?

The best way to answer that question is to read the opinion.

In particular, the dissent, starting at page 41. Here are the first few paras:

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex
couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow
marriage between two people of the same sex. But this Court is not a legislature.

Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what
the law is, not what it should be. (…)

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a
State are free to expand marriage to include same-sex couples, or to retain the historic definition. Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

Obergefell was as pure an example as you could hope to find of judges legislating from the bench.

How do I explain it? There are other options besides incompetent and dishonest, after all. Without having access to their thoughts other than by reading the majority opinion, they saw that their desired outcome, and the ultimate political result, were the same and decided to put the whole thing to rest. (Reading the majority opinion will quickly reveal what a fluffy mess it is; I’ll bet it will never be cited as precedent.)

Obergefell makes my point perfectly. Progressives vapor locking over a SC nominee who will hew much more closely to text and precedent fail to understand that is exactly what is needed. Such a court slows down attaining Obergefell’s outcome — politics is like that — but it also means that when anti-progressives hold the balance of power, that same attitude protects against authoritarian impulses.

And that there is so much angst over this nomination is proof positive that federal courts, and the SC in particular, have far too often strayed outside their remit.

82

Pro Bono 07.03.18 at 1:44 pm

I think Obama expected McConnell to block any candidate he nominated. His aim was to pick someone so anodyne that McConnell would have to admit that his objection was to Obama not the candidate.

Then Hillary would be able to pick whoever she wanted, and laugh at McConnell’s claim to want a more moderate candidate.

Of course Obama assumed that Hillary wouldn’t manage to lose to Trump.

83

politicalfootball 07.03.18 at 2:15 pm

Hey Skipper –

The Constitution has survived as long as it has in part because the language of it is qualitative and flexible. No “unreasonable” searches and seizures; no “cruel and unusual” punishment; gun rights in the context of a “well-regulated” militia. These terms necessarily change according to milieu. That’s built into the document.

But you know what’s not ambiguous? The Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The language of this is crystal clear. The original intent is also well understood. The Framers were afraid that nitwits would look at the Bill of Rights and say: That’s not in there; so therefore it’s not a right. One objection to the inclusion of the Ninth Amendment was that it didn’t solve a real problem — nobody was stupid enough to think that the Constitution outlined every possible right that people legally held.

The inclusion of the Ninth Amendment was a condition of getting the document approved. It wasn’t incidental or accidental.

Sure, the practical application of the Ninth Amendment is a problem, but anybody who denies its existence is denying the original intent of the Framers, whether you measure that intent by the actual words of the document or the intentions of the people who wrote it.

84

John Holbo 07.03.18 at 4:40 pm

Skipper, let me get this straight: you believe that the ‘conservatives’ on the court are (mostly) just reading what it says in the Constitution and doing what it says? Whereas the ‘liberals’ are (mostly) just flagrantly ignoring what it says right there in black in white. They are mostly just shamelessly making up stuff mostly contrary to the Constitution, as they go along, to suit their aggressive, activist political preferences?

That is your considered view of how it goes, as a rule?

And, because this is your view, you think it’s nonsense to worry that too many conservatives on the court could produce an ideological, partisan result, since the ‘conservatives’ are, by nature, non-ideological and non-partisan – mostly just reading what it says in the rule book and applying neutral rules in the obviously correct way. And that is why you think anyone disappointed in conservative rulings must want justices to make it up as they go along, in a progressive way? It simply couldn’t be that there are legitimate grounds to suspect conservatives of ruling, on a regular basis, out of partisan preference for political outcomes? They simply wouldn’t do that. Whereas the liberals simply wouldn’t do anything else?

You believe this? This is your working theory of judicial psychology and practice on the Supreme Court?

I don’t see how any less stark picture is consistent with your breezy pronouncements, upthread.

I’m tempted to ask, simply, how you square your picture with reality. With the world. But I’ll start smaller. How do you square this stark picture even with your own admission that there can be tough cases? Do you just think that all of the ones that get decided in a liberal direction are easy ones that should have gone the other way? Or none of the recent batch happen to have been tough? They were all easy calls and went the way all right-thinking folk knew they ought, and every soul who opined that there was any merit to the losing side was a fool or a knave? Or what?

85

politicalfootball 07.03.18 at 4:57 pm

One deranged individual actually mounted a campaign to have Corey banned from his own blog – for the ‘racist’ act of suggesting HRC might lose.

You are misremembering. Prof. Robin was a persistent critic of Hillary on the grounds that there was no chance Trump would win, and therefore we should be paying attention to how bad Hillary was. Prof. Robin shared the same context-free reading of Hillary’s flaws that you are promoting, although he was more interested in actual facts. I think that’s what you’re remembering here.

A quick Google turns up this item from a week before the election, or this from a bit earlier in the cycle.

To give you the flavor of how he deployed his knowledge of Trump’s certain defeat, here he casts Trump as a harmless McGovern, and Hillary as a scheming Nixon.

Prof. Robin attempted to think through his error on this blog.

86

Hey Skipper 07.03.18 at 5:53 pm

[political football:] Sure, the practical application of the Ninth Amendment is a problem, but anybody who denies its existence is denying the original intent of the Framers, whether you measure that intent by the actual words of the document or the intentions of the people who wrote it.

Did you read the Obergefell dissent? A major component of it was the way it absolutely trampled states’ rights.

As it has happened, progressives have been antagonistic to states’ rights. The reasons don’t matter here. But it is noteworthy that extensive states’ rights are both a constructionist view of the Constitution (commerce clause abuse be damned), and a safe harbor for states like California and New York — e.g., sanctuary cities — when His Trumpiness is roaming the land.

87

Orange Watch 07.03.18 at 6:03 pm

Skipper@76

No, I’m not presupposing some naive interpretation. After all, many of the words in the Constitution are easily understood as they stand, and as for many of the rest, the meaning at the time is also easily enough discovered.

With all due respect, the above is a blatant admission that you’re presupposing a particular naive interpretation. The “meaning at the time” being non-controversial and unambiguous is a glaringly naive assumption, but it is absolutely critical to your (and originality) reasoning despite how easily its falsehood can be discovered.

The Constitution (and Bill of Rights) was a document drafted by committee and through compromise between factions with radical disagreements about the scope and role of government. To take a nice and easy example, Federalists and Anti-Federalists diverged bitterly on the subject of Federal authority, and the Constitution and Bill of Rights reflects compromise between them. Yet when you read the decisions of staunch originalists like Scalia, by some strange coincidence the common contemporary layperson’s understanding is unambiguous and universal (and in line with Anti-Federalists almost without fail)…

Simply put, if the naive Constitutional revisionism originalists and their camp followers presume was true, Marbury v. Madison and other early decisions would never have happened because the politicians and body-politic would have been marching lockstep for at least a generation in unanimous groupthink, and ambiguity and contested interpretation of statutes and Constitutional text would be a new blight. It is easy enough to discover that this is a childishly naive, incredibly ahistorical, and transparently self-serving mythologicalized retcon of the early days of the Republic.

This entirely sets aside the issue of originalists suddenly discovering novel interpretations that hadn’t been noticed for 200+ years, inconsistency between relying on the letter of the document vs. the authorial intent according to what would reach the desired outcome, relying on very specific novel precedents in the case law while rejecting others as innovative, and of course pretending that the Constitution’s text as literally written encompasses technologies undreamed of by the Founders. Originalism (and your related interpretive POV) is a transparently biased philosophy that is well-suited to legislating from the bench, and in practice it does just that. It is made worse, not better, by its aloof, pedantic, condescending, and thoroughly delusional claims to be unbiased, mechanical, and non-partisan, “simply calling balls and strikes”…

88

John Holbo 07.03.18 at 6:09 pm

“Did you read the Obergefell dissent?”

Skipper, it won’t do just to pick the side you prefer and treat its bare existence as a proof that there can’t be two sides to the argument. The existence of the Obergefell dissent doesn’t prove the majority can’t have any arguments on their side. It’s rhetorically powerful that the dissent accuses the majority of arguing ‘fairness’ rather than law but, inconveniently for that position, there are fairness claims encoded into the Constitution and also established by precedent.

I reiterate my question: do you truly subscribe to the (to my mind extremely naive) view I sketch above? If so: why? If not: then what are your claims based on?

89

Hey Skipper 07.03.18 at 6:09 pm

[political football:] … gun rights in the context of a “well-regulated” militia.

This is a perpetual fantasy of progressives. In English, a prefatory clause need not, and often doesn’t, restrict the operational clause. In this case, where there are many putative reasons for individual possession of guns, the listing of one in a prefatory clause does not exclude all the other reasons. And that is before acknowledging that in every other case where the words “… the people …” are used, they refer to individual rights. It is singularly blinkered to then assume that, in this case, the authors completely forgot what they were doing and suddenly went all collective.

What’s more, if possessing guns was, indeed, a state sanctified collective right, there would have been absolutely no reason to have it appear at all in the constitution.

Finally, it completely ignores the enlightenment philosophy upon which the Constitution is based. People, as individuals, inherently possess freedom of conscience, speech, association and meaningful self-defense. Consequently, only tyrannical government would seek to abrogate these rights that inhere by virtue of our existence as individuals, from whom government legitimacy derives.

Now, it may well be that you disagree with all of this. But to the extent you do, then you are antagonistic towards the very basis of US governance. Like it or not, the 2A isn’t optional.

90

Hey Skipper 07.03.18 at 6:21 pm

[John Holbo:] Skipper, let me get this straight: you believe that the ‘conservatives’ on the court are (mostly) just reading what it says in the Constitution and doing what it says? Whereas the ‘liberals’ are (mostly) just flagrantly ignoring what it says right there in black in white. They are mostly just shamelessly making up stuff mostly contrary to the Constitution, as they go along, to suit their aggressive, activist political preferences?

I have tried to base my comments upon specifics. Perhaps it would help if you did the same.

My position is that justices whom progressives label conservative as a rule stick much more closely to original meaning, existing law, and precedent than do those whom progressives term liberal. (BTW, that sentence including “shamelessly”, “making up stuff”, “aggressive, activist” is a perfect example of straw manning.)

I don’t think it is particularly debatable that there is an intellectual divide between those who believe that there is an ascertainable meaning to the constitution, law, and precedent, and that meaning is determinant, regardless of outcome; and those who believe in a living Constitution, that is useful to substantiate desired outcomes, and ignorable otherwise.

So, take Obergefell as a case in point. In particular, read the entire dissent, and explain how it is wrong. Because, if it isn’t, then the majority opinion was arrived at almost exclusively because that was the outcome the majority desired.

In writing [it’s] rhetorically powerful that the dissent accuses the majority of arguing ‘fairness’ rather than law but, inconveniently for that position, there are fairness claims encoded into the Constitution and also established by precedent. you are showing your own naivety: the dissent is about far more than that.

Which is what you have to address before you accuse me of being naive. The contrast between the majority and dissenting opinions could hardly be more stark.

91

John Holbo 07.03.18 at 6:26 pm

“Finally, it completely ignores the enlightenment philosophy upon which the Constitution is based.”

Am I allowed to add in anything I want that seems to me like it has some basis in ‘enlightenment philosophy’? Or do only conservatives get to play the ‘enlightenment!’ card? (Ah, the sleep of Enlightenment breeds penumbras!)

92

John Holbo 07.03.18 at 6:48 pm

“I have tried to base my comments upon specifics.”

“The only people who could possibly be shell shocked are those for whom the Constitution is merely an impediment to their desires.”

If you call that basing your comments on specifics I’d hate to see you when you are waxing vague and unsubstantial, Skipper.

I’m out. I asked you whether you hold what I regard as a hopelessly naive view. You have said you do. The mystery, such as it was, is solved.

93

Orange Watch 07.03.18 at 6:59 pm

politicalfootball@83:

Sure, the practical application of the Ninth Amendment is a problem, but anybody who denies its existence is denying the original intent of the Framers, whether you measure that intent by the actual words of the document or the intentions of the people who wrote it.

…and were it not so grim, it would be amusing how prevalent it is for Originalists to hold that the 9th Amendment is literally meaningless verbiage included for no particular reason, having no legal impact, and being unambiguously understood and intended to be strictly decorative language in an otherwise very serious and businesslike document. Especially given their assertions that the proper understanding of Constitutional text is not that of a legal scholar with an academic background and familiarity with legal terms of art, but of a contemporary layperson with no legal background reading the unannotated plain language of the document.

Seriously, even if the rest of the practice of Originalism didn’t make a mockery of the lofty principles it claims, Originalists’ scornful dismissal of the 9th would still give away their game.

94

Hey Skipper 07.03.18 at 7:16 pm

[John Holbo:] “I have tried to base my comments upon specifics.”

“The only people who could possibly be shell shocked are those for whom the Constitution is merely an impediment to their desires.”

If you call that basing your comments on specifics I’d hate to see you when you are waxing vague and unsubstantial, Skipper.

Oh, for pete’s sake. Your comment only makes sense if I followed it up with absolutely nothing else. Obergefell is an excellent case in point. So by all means, address the dissenting opinions therein and explain how they got it wrong.

Am I allowed to add in anything I want that seems to me like it has some basis in ‘enlightenment philosophy’? Or do only conservatives get to play the ‘enlightenment!’ card? (Ah, the sleep of Enlightenment breeds penumbras!)

Do you deny that the Constitution and Bill of Rights have a significant basis in enlightenment philosophy? Or that enlightenment philosophy is an actual thing, the citing of which does not therefore making any particular claim about enlightenment?

95

John Holbo 07.03.18 at 8:21 pm

Skipper,

You quoted (not me!) a bit from the dissent, critiquing ‘fairness’ as a basis for the decision. I rebutted it, pointing out that fairness is guaranteed by the equal protection clause. Now you claim that you didn’t mean THAT bit. There’s extra good secret sauce … somewhere else. Ah, I know how this one goes. I’ll be chasing your goalposts all day long. Nope, if you want to stand and argue, stand and argue. If, as I suspect, you are always going to run away upon contact with any serious challenge then …

As to the Enlightenment: “Do you deny that the Constitution and Bill of Rights have a significant basis in enlightenment philosophy?” Of course not. Yet, although I’m a living constitution guy (because I’m a realist), I’m too much of a textualist to think this means that any old thing I think sounds good, in an ‘Enlightened’ way, can be freely stuffed in any which way I find facially plausible. The framers didn’t have an individual right to bear arms in mind when they crafted the 2nd Amendment. They were thinking about the need for militias (to spare us a standing army.) That’s what the 2nd Amendment is for. (It doesn’t follow that there isn’t a personal right to bear arms, but it isn’t based on originalism.) Now, it may be, as you say, that an individual right to bear arms is a very, very, good, ‘enlightened’ idea. But here’s where you and I part ways. I do not assume that everything I personally think is a very, very good, ‘enlightened’ idea must therefore be in the Constitution.

You write:

“People, as individuals, inherently possess freedom of conscience, speech, association and meaningful self-defense. Consequently, only tyrannical government would seek to abrogate these rights that inhere by virtue of our existence as individuals, from whom government legitimacy derives.”

This basically boils down to: only really bad governments would want to do X. Therefore, X is unconstitutional. Do you really – really? – want to license that as an interpretive rule for the Constitution? I think only a really bad government wouldn’t want universal health care. Does that mean that anything besides universal health care is actually unconstitutional?

Thus, my point earlier in the thread is underscored. One of the problems with so-called ‘originalist textualism’ is that, although it is supposed to rule out personal bias, it actually invites it in under cover of (among other things) sloppy history arguments about hazy stuff like ‘a significant basis in enlightenment philosophy’. As Posner says in that article you didn’t like: judges aren’t professional historians. This causes problems.

96

Layman 07.03.18 at 8:26 pm

Hey, Skipper

The core of the Obergefell majority decision is this:

That the Constitution guarantees the right to marry (which is not an enumerated right, but one upheld by numerous prior decisions by the Court);

that the people may not be deprived of rights without good cause through due process (5th and 14th Amendments);

and that people are entitled to equal protection under the law wherever they reside (14th Amendment).

Thus, same-sex people have a right to marry, that right can’t be arbitrarily denied by a state or the state, and states must honor the marriages recognized by other states.

This seems to me a perfectly reasonable argument. Can you, in your own words, tell me where you think it fails? Don’t say ‘read the dissent’ because I did. I’m asking for your dissent, not Roberts’.

(I’d tread carefully if I were you. Even the dissent authored by Roberts concedes the fundamental right to marry, so that can’t be where the problem is.)

97

Jeff Guinn 07.03.18 at 9:26 pm

[John Holbo:] You quoted (not me!) a bit from the dissent, critiquing ‘fairness’ as a basis for the decision. I rebutted it, pointing out that fairness is guaranteed by the equal protection clause.

I quoted merely the introductory portion of one of the two dissenting opinions. Did you read the rest? (Some of which addresses the equal protection clause.)

The framers didn’t have an individual right to bear arms in mind when they crafted the 2nd Amendment.

Except the 2A only makes sense as an individual right. The Heller opinion gives an extensive background to the 2A. By all means, quote where it goes wrong, and why.

[Hey Skipper:] People, as individuals, inherently possess freedom of conscience, speech, association and meaningful self-defense. Consequently, only tyrannical government would seek to abrogate these rights that inhere by virtue of our existence as individuals, from whom government legitimacy derives.

This basically boils down to: only really bad governments would want to do X. Therefore, X is unconstitutional.

It doesn’t boil down to anything of the kind. The assertion that people, as individuals, inherently possess freedom of conscience, etc, is axiomatic. Therefore, by definition, is any government that acts to deprive people of them is tyrannical. It is an entering argument is independent of any constitution or form of government.

I think only a really bad government wouldn’t want universal health care. Does that mean that anything besides universal health care is actually unconstitutional?

It might well be that the lack of universal health care is, indeed, bad government policy. It is also, within the US Constitution, as written, prohibited.

There are ways to deal with this. The first is federalism. There is absolutely nothing stopping, says, California from instituting universal health care for its citizens. If universal health care is such a self-evidently wonderful thing, then other states will start doing the same.

The other way is to amend the constitution to allow the federal imposition of universal health care on the states.

The worst answer is to pretend the Constitution doesn’t say what it clearly says because it impedes your preferred policy preference.

(OT, but not completely. You insist it is beyond debate that universal health care is the sine qua non of good government.

Socialism, which is what you are talking about with UHC, is, to be kind, not noted for being inventive. Particularly in contrast to free markets. So it may well be that at any given instant, UHC is morally preferable. However, over time, less socialistic health care provision will be more inventive, so that eventually it will provide better outcomes than its socialistic, static, counterpart.)

As Posner says in that article you didn’t like: judges aren’t professional historians.

NB: there are plenty of constitutional lawyers who didn’t like Posner’s article, either.

One of the problems with so-called ‘originalist textualism’ is that, although it is supposed to rule out personal bias, it actually invites it in under cover of (among other things) sloppy history arguments about hazy stuff like ‘a significant basis in enlightenment philosophy’

The Heller decision I cited above is a perfect example of originalist textualism. It should, therefore, provide many examples for you to cite of sloppy historical arguments and hazy bases in enlightenment philosophy.

98

Layman 07.03.18 at 9:40 pm

Hey, Skipper

What’s wrong with the dissent in Obergefell?

1) Roberts argues that the right to marry cannot compel a state to change its definition of marriage, despite the fact that the court held precisely that in Loving. Is Roberts right, and was Loving wrongly decided? Can a state enact a law in such a way as to violate the rights of its citizens?

2) Roberts argues that the Due Process clause only applies to those rights enumerated in the Constitution. This effectively nullifies the 9th amendment, which is an odd thing for an originalist to do. Do you agree with Roberts? Is the Due Process clause limited in effect to only enumerated rights, and where is that limit expressed in the actual text of the Constitution?

3) Roberts argues that forcing states to change the definition of marriage in response to the rights of those who want to marry might usher in plural marriage, and that this would be an absurd result. Is Roberts making a legal argument here, or expressing his personal preference? Is reductio ad absurdum an originalist tool? Why would an originalist need it?

I’ll wait for your response.

99

Orange Watch 07.03.18 at 9:46 pm

JH@95:

The framers didn’t have an individual right to bear arms in mind when they crafted the 2nd Amendment. They were thinking about the need for militias (to spare us a standing army.) That’s what the 2nd Amendment is for. (It doesn’t follow that there isn’t a personal right to bear arms, but it isn’t based on originalism.)

Indeed, reading the tortured abomination that is Heller the staunch originalist Scalia makes a strong historical argument based on a common-law right to bear arms, which would reasonably follow as one of the 9th’s unenumerated rights. Unenumerated rights, however, have no place in the jurisprudence of most* originalists, as their plain-text reading is mysteriously but consistently only compatible with a fanciful revisionist caricature of Anti-Federalism that gives as few powers as possible to the Federal gov’t, excepting the Executive’s law enforcement and military roles… and since unenumerated rights for mere citizens would interfere with the rights of states, corporate persons, and the Executive…

*Ofc, the fact that not all originalists or even strict constructionists can agree on something so fundamental as “one of the original ten amendments was/wasn’t meant to be a dead letter by its authors” should deal a rather definitive deathblow to originalism’s credibility in general, let alone to its claim to provide an intuitive, unambiguous, neutral reading of the sacred texts. And yet here we are.

100

John Holbo 07.03.18 at 9:48 pm

“The assertion that people, as individuals, inherently possess freedom of conscience, etc, is axiomatic.”

And the ‘etc.’ includes (by the light of reason?) the right to personal ownership of firearms? That is axiomatic, too? No enlightened person could doubt it? What about concealed carry? Semi-automatic? Semi-axiomatic? (Asking for a friend!)

101

John Holbo 07.03.18 at 9:56 pm

Also, it isn’t good enough for you to find several scholars who disagree with Posner. Your position requires that no reasonable person could possibly see any merit in his anti-originalist position, and that he himself be demonstrably incompetent as a scholar.

102

Orange Watch 07.03.18 at 10:01 pm

The Heller decision I cited above is a perfect example of originalist textualism. It should, therefore, provide many examples for you to cite of sloppy historical arguments and hazy bases in enlightenment philosophy.

Sadly, you’re exactly right about this: it is a perfect example of originalist textualism. That’s not a compliment, though.

To take a page from your rhetorical book: read the dissent.

I’d also be interested in how Young’s decision in Worman v. Healey fits into your conception of the pristine textualism of Heller. Worman v. Healey is quite faithful to Heller, and in particular to Scalia’s reasoning. And yet fans of originalist jurisprudence were quite upset with it…

103

LFC 07.03.18 at 10:58 pm

The dueling positions in Obergefell come down to a difference in framing: for the majority, it was about the right to marry, while for the dissenters it was about the definition of marriage and whether that question should be left to the states (and “the people”.)

From the standpoint of craftsmanship, Kennedy’s majority op. left something to be desired, certainly in its opening. He should have begun prosaically and straightforwardly, for instance: “this is a case about the fundamental right to marry and whether same-sex couples must be allowed to exercise that right on the same basis, and in the same way, as opposite-sex couples.” Instead, Kennedy began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to find and express their identity.” That is a bad sentence. But its defects in style do not mean that the maj. op. is wrong, anymore than Scalia’s mocking anger (the Court has descended to “the mystical aphorisms of the fortune cookie”) mean that his dissent is right.

104

LFC 07.03.18 at 10:59 pm

p.s. I think I might have gotten the first sentence slightly wrong; shd be “define and express their identity.” anyway the pt stands; it’s not a v. good sentence.

105

politicalfootball 07.04.18 at 1:27 am

Hey Skipper @89:

Good for you for trying to quote me. But the fragment you quoted made no sense, and that’s probably why your response was gibberish. Here’s the whole quote:

The Constitution has survived as long as it has in part because the language of it is qualitative and flexible. No “unreasonable” searches and seizures; no “cruel and unusual” punishment; gun rights in the context of a “well-regulated” militia. These terms necessarily change according to milieu. That’s built into the document.

And your response:

This is a perpetual fantasy of progressives. In English, a prefatory clause need not, and often doesn’t, restrict the operational clause.

I said nothing about the relationship between the prefatory clause and the operational clause — except that it was subject to interpretation. And you interpreted it! Good for you!

You are uncomfortable with the language of the Second Amendment, so to you that clause means nothing at all. That’s fine! It’s not me pretending to be an originalist or a constructionist.

I don’t profess to know which parts of the Constitution are meaningless. But I will say this: The reasonable interpretation of the First Amendment would be entirely different if it were written thus: “Well-regulated debate being necessary to a free society, Congress shall make no law … abridging the freedom of speech, or of the press.”

106

J-D 07.04.18 at 1:48 am

Hey Skipper

I repeat (in different words) my previously stated position in order to expand on it.

Judges (particularly appellate judges) decide what the law is going to be. In doing so, they weigh up various and often competing considerations. In order to do this job they need to understand what the law is. People vary, a lot, in how well (how broadly and how deeply) they understand what the law is; so do judges, but generally speaking they understand the law much better than is typical of the general population. Judges are not exactly equal in their understanding of the law, but compared to the general population they are approximately equal and generally they are sufficiently well equipped in that respect to do their jobs.

If a judge (particularly an appellate judge) makes a decision without adequate understanding of what the law is, that’s incompetence; or if a judge (particularly an appellate judge) makes a decision deliberately disregarding what the law is, that’s dishonesty.

Now, I asked you for your explanation of how it happens that appellate courts give split decisions (as we know they frequently do). You responded, in part

Because no non-trivial legal system is internally consistent. … a balance must always be struck … Because that balance isn’t explicitly described, people’s axiomatic preferences come into play; those, in turn are affected by society’s prevailing attitudes which are far from static. Individual judges will their own emphasis on existing law, precedent, and experience. …

… law strikes a balance between conflicting … rights, and that balance has changed over time, as will judicial attitudes, which won’t all be the same at any given time, even while strictly relying on the Constitution, law, and precedent.

Now, if I’ve understood what you’ve written correctly (and if my ellipses don’t distort your meaning), it seems to me that what you have written is consistent with the position I have described: appellate judges weigh up competing considerations, taking into account their understanding of what the law is, and their decisions balance those considerations; the reason split decisions happen is that appellate judges, taking into account their approximately equal understandings of what the law is, and weighing the same or very similar competing considerations, strike the balance at different points.

If that’s what happened, for example, in Obergefell, the expected result would be majority and minority opinions which reflect approximately equal understanding of what the law is, but which strike the balance between competing considerations at different points.

However, you also write this about Obergefell:

Reading the majority opinion will quickly reveal what a fluffy mess it is; I’ll bet it will never be cited as precedent.

I can’t figure how that comment can be reconciled with an explanation of the majority opinion as arising from an adequate understanding of what the law is and a serious balancing of competing considerations. If the majority opinion was a fluffy mess, surely that means it’s not grounded in an adequate understanding of what the law is? if not, what else does it mean? or, if I’m right about what it means, how do you explain it as neither incompetent nor dishonest, that is, as neither reflecting the majority judges’ failure to understand what the law is nor their determination to disregard it?

107

politicalfootball 07.04.18 at 1:51 am

What about concealed carry? Semi-automatic? Semi-axiomatic? (Asking for a friend!)

The Second Amendment says nothing specific about guns. As with many constitutional provisions, it is broadly written. It discusses “arms.”

So yeah, the “well-regulated militia” stuff is just throat-clearing, and has no actual meaning. But the word “arms” is unambiguous. Under the constitution, people have an unrestricted right to keep and bear nuclear arms, regardless of what you libs might think.

Nukes don’t kill people. People kill people. If you outlaw nukes, only outlaws will have nukes. The only thing that stops a bad guy with a nuke is a good guy with a nuke.

108

faustusnotes 07.04.18 at 6:15 am

Hey Skipper says

It might well be that the lack of universal health care is, indeed, bad government policy. It is also, within the US Constitution, as written, prohibited.

This is unfortunate, because if you look at the history of the early actions of the framers, they don’t agree with you. In 1790 the congress, which at that time was full of the people who wrote the constitution, required all ship owners to buy insurance for their sailors. In 1798 it required all sailors to buy hospital insurance. And in 1792 this same congress required all able-bodied men to buy a firearm.

Is the problem here that the framers didn’t understand the constitution? That they interpreted it as a living document? Or that the modern Supreme Court’s “originalists” don’t actually have a clue?

109

Hey Skipper 07.04.18 at 7:52 am

[JD:] Now, if I’ve understood what you’ve written correctly (and if my ellipses don’t distort your meaning), it seems to me that what you have written is consistent with the position I have described: appellate judges weigh up competing considerations, taking into account their understanding of what the law is …

If that’s what happened, for example, in Obergefell, the expected result would be majority and minority opinions which reflect approximately equal understanding of what the law is, but which strike the balance between competing considerations at different points.

Thanks for accurately summarizing what I wrote.

What happened in Obergefell was that various district and circuit courts decided, based upon existing state laws, that those states’ refusal to recognize valid same-sex marriage licenses from other states, by violating equal protection, contravened those states’ constitutions.

Which makes complete sense. Existing laws in those states recognized as valid marriage licenses from other states. It was not permissible to suddenly create an exception that the laws did not themselves provide for.

The main (IMHO) problems with the majority opinion in Obergefell is that it put in federal hands what is a matter for the states. Worse, five justices arrogated to themselves the right to decide an ongoing political issue. How is that not judicial tyranny? (NB: my criticism isn’t based upon the outcome, but rather is directed at the SC short circuiting a political process that was well on its way to getting there. It undermined the legitimacy of same-sex marriage, and elevated the SC above the legislative branch and laws that are in the realm of the states.)

I can’t figure how that comment can be reconciled with an explanation of the majority opinion as arising from an adequate understanding of what the law is and a serious balancing of competing considerations.

My comments are based on reading Obergefell’s majority and dissenting opinions. I’d be interested to see where you find the dissent opinions got it wrong, because I found them very persuasive even though I think same sex marriage should be legal.

110

Hey Skipper 07.04.18 at 7:53 am

[political football:] But the word “arms” is unambiguous. Under the constitution, people have an unrestricted right to keep and bear nuclear arms, regardless of what you libs might think.

That is why it is a good idea to read Heller. Then you will understand why that assertion makes no sense.

111

Hey Skipper 07.04.18 at 8:11 am

[John Holbo:] And the ‘etc.’ includes (by the light of reason?) the right to personal ownership of firearms? That is axiomatic, too? No enlightened person could doubt it? What about concealed carry? Semi-automatic? Semi-axiomatic? (Asking for a friend!)

Did you read Heller? That provides answers to all your questions. Natural law philosophy and English common law both pointed to the inherent right of meaningful self defense. Consequently, the right to bear arms means those in common use for lawful purposes. As for concealed vs. open carry, SFAIK that is an issue for the states. Prohibiting both, as CA does, looks like as good an example of directly (and uselessly) violating an enumerated right as one is likely to find.

Also, it isn’t good enough for you to find several scholars who disagree with Posner. Your position requires that no reasonable person could possibly see any merit in his anti-originalist position, and that he himself be demonstrably incompetent as a scholar.

Just as it isn’t good enough to point at Posner and rely upon argument from authority. I had read his article. I read Heller. I think Heller does an excellent job of refuting Posner. Originalism may not be possible in every case, but that doesn’t mean it is never, or even frequently, impossible.

The problem with Posner, and your “living Constitution” is that there are no limiting principles. Which is a singularly odd position to take with respect to a form of government predicated on limiting principles.

Which is why progressive hyperventilating about a SC nominee that believes in those limiting principles is misplaced.

112

Hey Skipper 07.04.18 at 8:27 am

[Layman:] 1) Roberts argues that the right to marry cannot compel a state to change its definition of marriage, despite the fact that the court held precisely that in Loving.

Roberts addressed that directly. Loving did not redefine marriage; Obergefell did. Redefining marriage is a societal issue, not judicial.

2) Roberts argues that the Due Process clause only applies to those rights enumerated in the Constitution. This effectively nullifies the 9th amendment, which is an odd thing for an originalist to do. Do you agree with Roberts?

I’m not sure I follow you. The enumerated rights are limits upon the federal government. Other rights, an exhaustive list of which would be impossible, are left to the states. I don’t see how this Roberts nullifies the 9th Amendment: his position is that since the Constitution is completely silent on the definition of marriage, the Constitution can’t be used to overturn an, until recently, the universally accepted definition. That is up to the states and the people.

3) Roberts argues that forcing states to change the definition of marriage in response to the rights of those who want to marry might usher in plural marriage, and that this would be an absurd result. Is Roberts making a legal argument here, or expressing his personal preference?

By my reading, he is making an observation: if polygamists were to insist upon a valid marriage license, they could rely upon the majority opinion to substantiate their case. Regardless of what one thinks of the case for same-sex marriage, the traditional definition made explicitly clear what marriage was, and was not.

Based on Obergefell, what now constitutes marriage?

113

nastywoman 07.04.18 at 10:16 am

Hey Skipper! –

as I thought that it was a good idea that Ellen could get married – why don’t we skip all of this lawyer-talk and do it the Von Clownstick-Way?

‘Take the guns first, go through due process second.”

Meaning: Let them get married first and THEN – only THEN adjust the law to the marriages.

Or in other ”Trumpists” words:
”F… Obergefell- who is this loser anywhow”?!

114

Collin Street 07.04.18 at 10:30 am

I shouldn’t fucking have to do this. Skip: where did you go to high school?
Anyway.
That is why it is a good idea to read Heller. Then you will understand why that assertion makes no sense.

Skip. Heller was not a unanimous decision.

Why was this?

115

J-D 07.04.18 at 10:34 am

Hey Skipper (=Jeff Guin?)

I don’t think any good purpose would be served by you and I disputing the merits of the opinions (majority and/or dissenting) in Obergefell. What could that possibly settle? If we find out that we disagree, that would be needless confirmation of what we already know, that people vary in their evaluations of those opinions. On the other hand, if it turns out that we agree, that wouldn’t change the position: it would still be true that people vary in their evaluations of those opinions, even if we didn’t.

It’s possible for people to disagree in this way without dismissing a conflicting evaluation as making no kind of sense and having no kind of merit. Judges are capable of incompetence and of dishonesty, just like anybody else, but I can explain a difference of opinion between them without being obliged to invoke those possibilities, because I can say that their opinions are wrong without saying that they’re hopelessly and incontrovertibly wrong, making no kind of sense and having no kind of merit. You could do the same. You could rate the dissents in Obergefell more highly than the majority opinion without rating the majority opinion at zero. But if you evaluate the dissents not just as right but incontrovertibly right, and therefore the majority opinion not just as wrong but as incontrovertibly and hopelessly wrong, making no kind of sense and having no kind of merit, irreconcilable with the degree and level of understanding of what the law is which is a requirement of doing the job of a judge, then it seems to me that the only explanations you have available for what the majority undeniably did are incompetence and/or dishonesty. If you want to accuse the judges in the majority of either or both of those things, your meaning will be clear to me and I can assure you that my sense of the decencies will not be offended; and yet you are (it seems to me) strangely shy of doing so. (Or, on the other hand, you could concede that there is some merit in their opinion, even if you think it much less than the merit of the dissents, but you seem to be equally–but perhaps less strangely?–reluctant to do that.)

116

Layman 07.04.18 at 11:24 am

Hey, Skipper

“Roberts addressed that directly. Loving did not redefine marriage; Obergefell did. Redefining marriage is a societal issue, not judicial.”

That is nothing but a silly semantic dodge. Before Loving, marriage was defined as between a man and woman of the same race. After loving, marriage was defined as between a man and a woman regardless of race. Look, marriage redefined, by Loving!

“The enumerated rights are limits upon the federal government. Other rights, an exhaustive list of which would be impossible, are left to the states.”

Can you point to the part of the Constitution which leaves to the states the business of defining and protecting non-enumerated rights? I can’t. Can you point to the part of the ninth amendment which says its scope is limited to only the enumerated rights? I can’t. I don’t think Roberts can point to those sections either. The idea that the Constitution points to some non-identified rights which are the province of the states to govern and which retain no Constitutional protection has to be one of the least originalist ideas I’ve ever read.

“By my reading, he is making an observation: if polygamists were to insist upon a valid marriage license, they could rely upon the majority opinion to substantiate their case. Regardless of what one thinks of the case for same-sex marriage, the traditional definition made explicitly clear what marriage was, and was not. Based on Obergefell, what now constitutes marriage?”

That’s my reading, too. Another way to put it is that he says Obergefell is decided wrong because he doesn’t like the consequences of the decision. This is not an originalist argument! It’s an argument about social consequences. It is an exercise in deciding which outcome you would like for society, even if that outcome is contradicted by the law, or otherwise not strictly supported by law. It’s exactly what he accused the majority of doing.

These are three substantial examples from Roberts’ dissent which have basically no connection to originalism at all; if anything, the arguments are anti-originalist. But you’re holding it up as a great example of originalism which proves the majority perpetrated a partisan hack. I think you should find another example.

I’m not holding my breath, though. I’ve argued with you in good faith, using your example, and pointing out to you where your example doesn’t actually support your argument. In a rational discussion, you’d be troubled by my argument, and say so, and re-examine the example. This will not happen!

117

John Holbo 07.04.18 at 11:45 am

“Natural law philosophy and English common law both pointed to the inherent right of meaningful self defense.”

So now you’re allowed to pack in natural philosophy AND English common law AND the Enlightenment, at convenience? So you are just abandoning originalism? So where’s your limiting principle?

118

LFC 07.04.18 at 1:09 pm

Another sign that Roberts’ dissent is not esp originalist is his discussion of the misleadingly named substantive due process, the doctrine that certain interests or rights are so fundamental that it’s unconstitutional to be deprived of them irrespective of whether you got due process or not. Roberts says the SC has to be v careful and cautious in applying this doctrine lest it fall into the errors of Lochner. The originalist view of this is not that of Roberts but that of Thomas, who says in the opening of his separate dissent: F— substantive due process, the whole doctrine is rubbish.

119

Orange Watch 07.04.18 at 1:52 pm

That is why it is a good idea to read Heller. Then you will understand why that assertion [that any arms are permissible] makes no sense.

Here’s the problem, though: if you do read Heller, you’ll find Scalia’s opinion to be disingenuous and incoherent. Scalia repeatedly asserted his was the first decision meaningfully addressing the 2A. He also repeatedly asserted that his decision broke no new ground and was entirely in keeping with the previous 217y of jurisprudence. More specifically still, he claimed his decision was an affirmation of Miller, despite his repudiation of its conclusions. But he was presenting a conceit as uncontroversial fact, namely that the 2A was very non-controversially understood by the Court to grant an individual right to bear arms for personal self-defense, so he needed to claim he was overturning no precedents even as he made a mockery of Miller.

Do you agree with Gorman? I’m all but certain you do not, but there is no way to square that circle without throwing out Scalia’s glowing approval and affirmation of Miller while retaining the rest of Heller, despite its claim being that it was affirming 217y of precedents w/o exception. You also find yourself in a rather nasty bind because of what Miller actually holds and Scalia endorsed without reservation. So: is Gorman good law, or did Reagan nominate a scurrilous, meddling progressive in Young? Is Miller good law? If not, how do you square that with Scalia’s claim that it is and is binding and formative in his opinion? If so, how do you square it with Scalia’s unblinking claims that undermine it, and possibly with a rejection of Gorman, assuming you predictably deem that bad law? And in any case, how do you reconcile Scalia’s insertion of a defensible unenumerated right to personal, individual self-defense defense into a Constitution mentioning nothing of the sort even in frivolous, definitely-non-operative preferatory clauses with your unequivocal claim upthread that the Constitution cannot be used as the basis for defense of unenumerated rights?

120

stephen 07.04.18 at 7:18 pm

I am, as I hope I have made clear, not an American citizen, and view the USA with partial knowledge and a mixture of admiration and (to put it politely) bafflement.

When I consider the problems that people on this thread are so concerned with, I cannot help comparing the effects of the UK constitution and the US one.

Homosexual marriages: UK, Parliament votes to approve. US, Congress does nothing.
Restrictions on firearms: ditto.
Abolishing death penalty: ditto.
Abolishing slavery: Parliament votes to approve early C19, US has to fight a civil war.

Nevertheless, some USAians insist UK is backward feudal monarchy.

Why does UK not enjoy the advantages of the US constitution?

121

Layman 07.04.18 at 8:44 pm

@stephen, I think you need to up your trolling game.

122

Hey Skipper 07.04.18 at 10:59 pm

[Collin Street:] Skip. Heller was not a unanimous decision.

Why was this?

One point under discussion is whether originalism is possible. I pointed to Heller as an excellent example of applied originalism, which was undertaken in the quest to determine whether the 2A is collective or individual.

I happened to find it extensive and thorough. Perhaps you didn’t, in which case I am sure it will be easy for you to point out what Scalia got wrong.

Why wasn’t it unanimous? Because “liberal” justices believe in a living Constitution, and where required it will bend to fit their desired outcomes.

[J-D:] I don’t think any good purpose would be served by you and I disputing the merits of the opinions (majority and/or dissenting) in Obergefell. What could that possibly settle? If we find out that we disagree, that would be needless confirmation of what we already know, that people vary in their evaluations of those opinions.

Here are the important questions: Did Obergefell legislate from the bench? Did it appropriate, without legal justification, a role that had previously been left to the states?

If so, and I think that much is hard to argue, then how can the majority opinion be characterized as anything other than outcome driven? Sure, in this case not many people would argue with the outcome. But the ends didn’t justify the means.

[Layman:] That is nothing but a silly semantic dodge. Before Loving, marriage was defined as between a man and woman of the same race. After loving, marriage was defined as between a man and a woman regardless of race. Look, marriage redefined, by Loving!

The dissent directly addresses that. (And it is worth noting that marriage was racially restricted in only a few states, not everywhere.)

That’s my reading, too. Another way to put it is that he says Obergefell is decided wrong because he doesn’t like the consequences of the decision. This is not an originalist argument!

Pointing one of the consequences of an the opinion is an accurate observation, which has nothing to do with originalism.

123

Hey Skipper 07.04.18 at 11:02 pm

[Hey Skipper:] Natural law philosophy and English common law both pointed to the inherent right of meaningful self defense.”

[John Holbo:] So now you’re allowed to pack in natural philosophy AND English common law AND the Enlightenment, at convenience?

Well, if the Constitution is allowed to pack in natural law, enlightenment philosophy and English common law, why is it out of bounds when I bring that up?

124

Suzanne 07.05.18 at 12:46 am

73: “To me a sufficient explanation for Obama’s mistake with the supreme Court is simply that he didn’t realise McDonnell would be such a ratfucking. He nominated a vanilla judge thinking the ratfucking would go no further than blocking someone more extreme. “

I certainly hope that’s not the case, or else the miscalculations of Obama and his team went well beyond miscalculation:

https://www.huffingtonpost.com/entry/mitch-mcconnell-neil-gorsuch-conservative-court_us_5b326aabe4b0cb56051c92d6

“Within an hour after Justice Antonin Scalia died in Feb. 2016, McConnell announced that he would block any Obama replacement. “

125

J-D 07.05.18 at 4:17 am

Hey Skipper

Here are the important questions: Did Obergefell legislate from the bench? Did it appropriate, without legal justification, a role that had previously been left to the states?

To my way of thinking, this just brings us around again to the same question which you seem to me to be repeatedly evading, as follows:
The opinion of the majority in Obergefell is presented as a legal justification for the result they arrived at. If you accept that it was a legal justification, then you can’t say that what they did was done (and I quote your phrase) without legal justification.
If the majority knew they had no legal justification, then they were faking their job.
If the majority’s understanding was so flimsy that they didn’t realise that their opinion had no standing as a legal justification, that’s incompetence.
If you reject both those options, then it seems to me you can still argue that the minority’s opinion is better than the majority’s and should be and should have been preferred, but you can’t deny that the majority had a leg to stand on.

126

Orange Watch 07.05.18 at 5:21 am

HS@122
I happened to find it extensive and thorough. Perhaps you didn’t, in which case I am sure it will be easy for you to point out what Scalia got wrong.

The dissent directly addresses that. So go ahead and address the dissent.

127

Collin Street 07.05.18 at 8:08 am

Verbatim Skip:
Why wasn’t it unanimous? Because “liberal” justices believe in a living Constitution, and where required it will bend to fit their desired outcomes.

“There are dissents because everyone who disagrees with me is wrong-headed.”

I mean, we’re plainly dealing with someone with some sort of pathology, here.

128

Layman 07.05.18 at 10:29 am

Me: “I’m not holding my breath, though. I’ve argued with you in good faith, using your example, and pointing out to you where your example doesn’t actually support your argument. In a rational discussion, you’d be troubled by my argument, and say so, and re-examine the example. This will not happen!”

Hey Skipper: “The dissent directly addresses that.“

World: (Continues to majestically turn on its axis.)

129

Hey Skipper 07.05.18 at 11:54 am

[Hey Skipper:] I happened to find it extensive and thorough. Perhaps you didn’t, in which case I am sure it will be easy for you to point out what Scalia got wrong.

[Orange Watch:] The dissent directly addresses that. So go ahead and address the dissent.

Okay.

[Stevens I: The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose …

No, it doesn’t.

Without further background knowledge, it is impossible to say if that was the sole purpose of the 2A, or the one out of a list of other reasons, that was most pertinent to the Bill of Rights. Without acknowledging that possibility, Stevens engages in question begging.

However, the extensive originalist background Scalia provided shows how unwarranted Stevens assumption was, thereby rendering the rest of his dissent as typing in pursuit of his pre-conceived conclusion.

He ignored the majority (9, if memory serves) of the 13 states explicitly insisting on the individual right to bear arms, as a consequence of the natural right to self defense. The vast majority of state constitutions assert the primacy of natural rights that exist without requiring law to enable them. Most of those enumerate the right to self defense.

Finally, there is no mention that the Constitution was adopted in the hope of creating a form of government that would protect individual rights. It is a heck of a leap to get from there to concluding that possessing arms that provide for meaningful self defense — a right preceding government — is somehow only collective.

130

Hey Skipper 07.05.18 at 11:58 am

[Hey Skipper:] Here are the important questions: Did Obergefell legislate from the bench? Did it appropriate, without legal justification, a role that had previously been left to the states?

[J-D:] To my way of thinking, this just brings us around again to the same question which you seem to me to be repeatedly evading, as follows:

The opinion of the majority in Obergefell is presented as a legal justification for the result they arrived at. If you accept that it was a legal justification, then you can’t say that what they did was done (and I quote your phrase) without legal justification.

To my way of thinking, that is a perfect example of circular logic: It is a legal justification because it was presented as a legal justification.

131

Hey Skipper 07.05.18 at 12:06 pm

[Hey Skipper:] Verbatim Skip: Why wasn’t it unanimous? Because “liberal” justices believe in a living Constitution, and where required it [sic] will bend [it] to fit their desired outcomes.

[Collin Street:] “There are dissents because everyone who disagrees with me is wrong-headed.”

I mean, we’re plainly dealing with someone with some sort of pathology, here.

One thing that is diagnostic of progressivism is pathologizing disagreement. It is a particularly nasty form of ad hominem, and completely avoids addressing the assertion that liberal justices, like John Holbo, prefer a living Constitution.

E.g.: Griswold, emanations, and penumbras.

Another diagnostic is the gross abuse of quote marks. I am sure if you could find anywhere I said anything remotely like that, then you would quote what I actually said, instead of making it up.

132

Another Nick 07.05.18 at 12:53 pm

“Roberts addressed that directly. Loving did not redefine marriage; Obergefell did.”

In his opinion. In most people’s opinion the “core structure” of marriage wasn’t redefined at all.

I take you to be my husband/wife. I promise to be true to you in good times and in bad, in sickness and in health. I will love you and honour you the days of my life.

Those words are now more truthful. An originalist should want that.

133

bianca steele 07.05.18 at 1:34 pm

The headline at New York Magazine, “Court pick could come down to looks,” reminds me of my favorite Rawls story. In the political theory core course in college, there was a guy who was from Dublin and had basically “no accent,” except for a few words when it poked through. In the class discussing Rawls (who wasn’t on the standard curriculum but was added by the instructor), this guy said something like, “but then it all comes down to look, doesn’t it?” Everyone stared at him, the instructor asked him to repeat it, and eventually he said, “to look, to chance,” and we all exhaled and said to ourselves, “oh, that makes more sense.”

134

John Holbo 07.05.18 at 1:41 pm

“One thing that is diagnostic of progressivism is pathologizing disagreement. It is a particularly nasty form of ad hominem”

Skipper, you roll into the thread, declaring that everyone who disagrees with your view of the Constitution must be either incompetent or corrupt – those “for whom the Constitution is merely an impediment to their desires.” There is no reasonable disagreement. There is only the sensible (originalist) school and the (obviously absurd) it-says-what-I-want school. And then, when this untenably extreme attempt to pathologize disagreement is, every which way, knocked back in your face – and after you’ve run around, moving your goalposts for a while – you finally put them down in exhaustion and complain that the trouble with progressives is … pathologizing disagreement and nasty ad hominem? Really? You are picking THAT door?

135

John Holbo 07.05.18 at 1:52 pm

“Well, if the Constitution is allowed to pack in natural law, enlightenment philosophy and English common law, why is it out of bounds when I bring that up?”

If the Constitution is allowed to pack in natural law, enlightened philosophy and English common law, then the Constitution obviously contains lots of stuff that aren’t, by any stretch of the imagination, in the text of the Constitution. Why is it out of bounds to bring up that you obviously aren’t a textual originalist if you are ok with this grand packing operation?

136

bianca steele 07.05.18 at 2:16 pm

Roberts is a member of the Federalist Society, which *supposedly* makes a distinction between “legislating” and “judging” that in theory might restrain his actions (as when he left an opening for the ACA’s continuance). On the other hand, it’s looking like they only restrain his actions when he’s asked to judge what the legislature has done. Despite his vaunted dedication to the Court as an institution, he looks to be dedicated equally to lack of restraint in weakening it (as in ignoring precedent a bit more wildly than his predecessors would have done) when he sees an opening to do so.

In theory, however, a Federalist is presumably committed to whatever the people legislates for itself, or at least what’s legislated by duly appointed persons. Unless that was rhetoric for the time and has been superseded by what the party seems needful for today.

137

Orange Watch 07.05.18 at 2:52 pm

HS@129:
Without further background knowledge, it is impossible to say if that was the sole purpose of the 2A, or the one out of a list of other reasons, that was most pertinent to the Bill of Rights. Without acknowledging that possibility, Stevens engages in question begging.

The further background knowledge is most pertinently 217y of caselaw holding the prefatory clause to be operative, not decorative. Scalia unblinkingly declares this not to be the case in his majority, but Scalia’s dishonesty does not erase 217y of caselaw, no matter how much you admire the conclusion he reached.

However, the extensive originalist background Scalia provided shows how unwarranted Stevens assumption was, thereby rendering the rest of his dissent as typing in pursuit of his pre-conceived conclusion.

…conveniently, this stops your reading on page 5 and does not consider the the remaining 41 pages. Address the actual reasoning rather than making a shallow rhetorical flourish, please.

You cite state Constitutions as something that strengthens your argument, but they actually weaken it as Stevens explains in the portion of the dissent you’ve breezily dismissed. The state Constitutions and state proposals for what would become the 2A are explicit in their scope – and more importantly, in their stated justifications. The 2A is not. It’s funny that a textualist, an “originalist”, would take this to mean that we should dismiss what is written in favor of what could have been written – and indeed, was written in contemporaneous documents – but quite decidedly was not written.

You cite 9/13 states calling for a right to bear arms (though you give no support for this claim, nor for the quite specific reasoning you provide for it). This, too, undermines your position rather than supporting it. The Constitution (and more relevantly, the Bill of Rights) was was drafted by compromise, not consensus. The Constitution (and Bill of Rights) represents what all would agree to as a unified document. It’s interesting to cite what some ratifiers would have liked the text of the document to include, but it’s not terribly relevant given that their opinions were known at the time, included in contemporary documents, and decidedly not included in the adopted Amendment. An obtuse refusal to acknowledge this is particularly strange for someone claiming to support a non-expansive purview for the federal government; the authors could easily have included language relating to natural rights, self-defense, or anything other than a militia. They did not; they included only language relating to a militia. It defies all credulity to see you present this as evidence that they meant it to be sweeping and wrote it for purposes at most peripherally relating to the reasoning they did cite.

Ofc, all of what I just wrote is explained in the paragraph of the dissent following the point where you apparently stopped reading. It is discussed in even greater detail in (II), to include explicit language along the lines of what you deem to be implicit but undeniable that was rejected – which you’ve aloofly dismissed as “typing” without considering its content.

Your citation of 9/13 states explicitly advocating certain explicit rights also undermines Scalia’s originalist claims, insofar as it makes clear that the meaning was not clearly understood and agreed upon. Originalism relies on an absurd ahistorical conceit of unanimity of opinion with regards to documents drafted and/or approved by committee through compromise. Those 9/13 may have wanted more expansive amendments, but they ratified the limited version. It is beyond absurd for someone praising limits on scope of government to suggest that it is right and proper to assume desired-by-some-but-not-adopted implied text to be legally operative. Even moreso when that someone is also declaring explicitly stated text to be decorative and meaningless.

The unrelated significance Scalia’s refusal to overturn Miller is also discussed. As I’m sure you know because you read the whole dissent and not just the first 5 pages… right?

However, all of this ignores your flat contradiction here of your prior claim that the Constitution cannot be used to defend unenumerated rights. You cannot have your cake and eat ours too. When you’re an originalist, you’re an originalist all the way; you cannot pick and chose when (you and only you) can advance anti-originalist arguments. You either need to set aside your claim to originalism and make your case in living Constitutionalist terms (without rejecting opposing claims for being antithetical to originalism), or you can continue to advance strictly originalist claims and reject those you show to not compatible with it (while being vulnerable to having your claims shown to be in contradiction of originalism’s tenets). But you can’t do both.

138

Layman 07.05.18 at 3:33 pm

Hey Skipper: “Another diagnostic is the gross abuse of quote marks. I am sure if you could find anywhere I said anything remotely like that.”

This seems to qualify: “The only people who could possibly be shell shocked are those for whom the Constitution is merely an impediment to their desires.”

You say more or less explicitly that surprise at the content of judicial opinions – with which you agree – can only stem from wrong thinking. Isn’t that right?

139

oldster 07.05.18 at 4:28 pm

Oh, and as far as Collin Street diagnosing pathologies? I would not take it personally.

It’s a thing he does, all the time. And he may be right to do it in many cases!

But it seems to be, I don’t know how to say this, maybe symptomatic of something?

Anyhow, I want to thank you on behalf of all of us regular readers h

140

oldster 07.05.18 at 4:32 pm

Oh, and Skipper:

As far as Collin Street diagnosing pathologies? I would not take it personally.

It’s a thing he does, all the time. And he may be right to do it in many cases!

But it seems to be, I don’t know how to say this, maybe symptomatic of something in his own constitution?

(Just as the inability to resist recursive jokes is symptomatic of my own pathologies.)

Anyhow, I want to thank you on behalf of all of us regular readers here, for giving such a clear demonstration of the intellectual bankruptcy of “originalism”. There’s really no better way to show how vacuous it is, and how openly it invites abuse, than by having someone show up and use it in ways that are vacuous, abusive, and exactly in line with the practice of its most celebrated proponents and advocates.

You’ve performed a public service!

141

Hey Skipper 07.05.18 at 6:13 pm

[John Holbo:] Skipper, you roll into the thread, declaring that everyone who disagrees with your view of the Constitution must be either incompetent or corrupt – those “for whom the Constitution is merely an impediment to their desires.”

John, perhaps you have noticed that when I respond, it is always to a direct quote. So, had you done me the same favor, you would have forsaken the opportunity to attribute “either incompetent or corrupt” to me. Instead, you would have been looking at J-D.

In contrast, what I actually said on that was this:

There are other options besides incompetent and dishonest, after all. Without having access to their thoughts other than by reading the majority opinion, they saw that their desired outcome, and the ultimate political result, were the same and decided to put the whole thing to rest.

Which means you grossly mischaracterized me. I have made no declaration about “everyone”, nor gave even a hint of a suggestion that those who disagree with me are in some way mentally or morally deficient.

Of course, should I have forgotten something I’ve written, or if page search has failed me, I am sure you can directly quote me otherwise.

142

John Holbo 07.05.18 at 6:44 pm

“I have made no declaration about “everyone”, nor gave even a hint of a suggestion that those who disagree with me are in some way mentally or morally deficient.”

You don’t think that those “for whom the Constitution is merely an impediment to their desires” are in any way mentally or morally deficient, if they presume to pass off whims or private policy preferences in the guise of serious constitutional interpretation, even if it has no credible basis in the text of the Constitution?

Do you or do you not think there are only two possibilities? Namely, originalist textualism (which is obviously sane and correct) and just-make-up-anything-you-like (which is obviously insane and wrong)?

143

Hey Skipper 07.05.18 at 7:05 pm

This seems to qualify: “The only people who could possibly be shell shocked are those for whom the Constitution is merely an impediment to their desires.”

You say more or less explicitly that surprise at the content of judicial opinions – with which you agree – can only stem from wrong thinking. Isn’t that right?

No, it isn’t.

The Constitution is a fine blueprint for an individualistic society. It is a concise document that is devoid of positive rights, and therefore circumscribes government when it comes to activist goals.

So far as I know, progressives are collectivist, and very enamored of positive rights. Consequently, the very structure of the Constitution, individualist and containing only negative rights, is frequently an impediment to progressive goals. If one views progressive goals as inherently and obviously good, and the Constitution is in the way, then it must bend or stretch as required to accommodate.

Obergefell is the perfect example. The proper role of the SC would have been to punt the ball right back to the states and Congress. I think it safe to say that, ultimately, the outcome would have been the same. It would have taken longer, but it wouldn’t have suffered the legitimacy problem of having five people deciding to be veto-proof legislators in robes. Do you really want the SC playing that role?

One consequence of activist justices has been to render one side or the other apoplectic at the thought of having the “wrong” kind of judge nominated. That is a sure sign something is wrong.

Going way back, my main point is that progressives really don’t have much to fear from a conservative, originalist nomination. What they (and all of us) should fear is the nomination of activist judges — because ultimately, shoes change feet.

144

Hey Skipper 07.05.18 at 7:45 pm

[John Holbo:] You don’t think that those “for whom the Constitution is merely an impediment to their desires” are in any way mentally or morally deficient…?

I strongly disagree with this guy, for whom the 1A is an impediment.

That doesn’t mean that therefore I think him mentally or morally deficient.

145

Hey Skipper 07.05.18 at 7:51 pm

You don’t think that those “for whom the Constitution is merely an impediment to their desires” are in any way mentally or morally deficient …

I forgot to add this:

I strongly disagree with affirmative action, to which the Constitution is an impediment. I don’t for second think its adherents mentally or morally deficient.

You should stop putting thoughts in my head.

146

Hey Skipper 07.05.18 at 7:53 pm

[Orange Watch:] The further background knowledge is most pertinently 217y of caselaw holding the prefatory clause to be operative, not decorative.

That doesn’t hold water.

Whether John Holbo likes it or not, the US Constitution is based upon natural law philosophy — there is no making sense of it otherwise. Therefore, the inherent right to meaningful self-defense is a pre-existing right that government may not abrogate.

Moreover, if the prefatory clause was operative, then the entire 2A is completely pointless. The 2A, just like the 1A, is a negative right (i.e., a limit upon government), not one granted by law. So it makes no sense to create a negative right that can be taken or withdrawn at will by the government: it is a contradiction in terms.

Within the context of the context of the Constitution, a blueprint for government, prefacing a negative right with a justification pertinent to that blueprint doesn’t exclude all the others out there. Natural law predicates don’t go away simply because they weren’t part of a laundry list.

That there happens to be more specificity in state Constitutions doesn’t weaken the case at all. That they chose to make explicit what was already implicit: absence is not exclusion.

Remember, before the 14th amendment, the Bill of Rights was taken only to limit the federal government, not the states. So most, if not all, state constitutions echo the Bill of Rights in freedom of speech and religion. That doesn’t, therefore, weaken them in any regard.

How many people at the time, if you told them that their possession of guns was predicated on government’s decision to provide for a well regulated militia, would have found that acceptable? (Speaking of originalism.)

The unrelated significance Scalia’s refusal to overturn Miller is also discussed. As I’m sure you know because you read the whole dissent and not just the first 5 pages… right?

Miller outlawed specific types of weapons — sawed off shotguns, for example. Since then, SFAIK, the 2A is taken to cover weapons commonly owned by law abiding citizens. Miller doesn’t need overturning, because the weapons in the NFA aren’t, and wouldn’t be, commonly owned by law abiding citizens. (However, including suppressors is just dumb.) And, SFAIK, no one is litigating Miller, in any event.

147

NickS 07.05.18 at 8:06 pm

“[The Constitution] is a concise document that is devoid of positive rights…”

I’ve been following this back-and-forth with some interest, but not much to contribute, but that comment seemed to absolute that I wanted to double-check it. Interestingly, one of the top results for “us constitution positive rights” is a post by Eugene Volokh in which he argues that the constitution does contain positive rights. Precisely because his view of the constitution and law is more conservative than mine, I think it’s worth quoting:

And all these positive rights, I think — the Contracts Clause, the Takings Clause, the Debt Clauses, and the Seventh Amendment — capture a broader point. Civilized life requires that the government positively protect property, contracts, and persons, and while the political process must have a great deal of flexibility in deciding the scope of such protection, some amount of such protection is constitutionally required.

[emphasis his]

Consider the various agencies of government, and the demands that you can place on them.

You can go to the police station and say “Come eject these people who are trespassing on my property.” That’s generally seen by conservatives as a right, even if not always a legally enforceable one. It’s the positive right to get (and without paying for it, except through taxes) a certain government service.

You can go to court and say “Issue a judgment awarding me damages for my ex-partner’s breach of contract.” That is a legally enforceable right, secured both by common-law and by the federal constitution. It’s the positive right to get (and these days without paying for the entirety of the court’s expenses) a certain government service.

You can go to the government and say “Educate my child for free.” That is a legally enforceable right, secured by state statutes and many state constitutions. It’s the positive right to get a certain government service — one that’s more controversial among many libertarians and some conservatives, though also one that’s broadly accepted by many conservatives and some moderate libertarians (though they might prefer that the right be to a voucher redeemable at a wide range of schools).

You can go to the government and say “Give me medical care.” That too would be a positive right to get a certain government service, though one that is probably opposed (except perhaps as to a few services, especially ones having to do with communicable diseases) by many hard-core conservatives and libertarians.

All of these are claims of positive right.

148

John Holbo 07.05.18 at 8:24 pm

Skipper: “It is a concise document that is devoid of positive rights, and therefore circumscribes government when it comes to activist goals … Consequently, the very structure of the Constitution, individualist and containing only negative rights, is frequently an impediment to progressive goals.”

Look, you are doing it again. You are sure that the Constitution must be some wish-list of your favored policy preferences. Somehow the Constitution is this magic document for pleasing libertarians and frustrating progressives. I – as a moderate textualist – am here to tell you: read the damn text. Let’s take the Contracts Clause, since that is 1) rather relevant to the marriage question; 2) obviously secures a positive right. “No state shall … pass any law … impairing the Obligation of Contracts.” That is the government giving you a positive right to make contracts. You can, of course, twist it so it comes out negative: you have a positive right to (negative) freedom from violation of your positive right to make contracts. But, what the hell, if you are allowed to twist it like that, any right can be positive or negative, as you like it. Negative rights can be positive rights to freedom from impairment of your negative rights. So forth.

The bottom line, Skipper: the Constitution doesn’t just allow you to indulge your policy preferences – for only negative rights, or natural law, or common law, or enlightenment. You can’t just make it say whatever you want. And merely labeling your policy preferences ‘textualism’ doesn’t make them textualist. They have to be rooted in the text. I realize that may feel restrictive at times, but that’s Constitutional law. We can’t always get what we want, even if we think what we want is very morally right and proper.

149

John Holbo 07.05.18 at 9:52 pm

Ah, all those other comments were in moderation while I posted mine. Good to know that pinko progressive Eugene Volokh is with me on the positive rights.

“Whether John Holbo likes it or not, the US Constitution is based upon natural law philosophy — there is no making sense of it otherwise.”

Yes, of course it is based on natural law philosophy, insofar as the framers were influenced by it. But it is equally true that the US Constitution is based on a desire for justice and the welfare of all. That does not mean that anything I think is just, or conducive to the welfare of all, is mandated by the Constitution.

Again and again you are assuming that if it makes moral sense to you it must be in the Constitution. Whatever you need to get what you want – common law, natural law, enlightenment, the ghost of Isaiah Berlin sermonizing about the value of negative liberty – it’s all in there. (After all, if you like it, why wouldn’t it be in the Constitution?) It’s a very loose way to interpret the law, to say the least.

150

Pro Bono 07.05.18 at 9:56 pm

Speaking of the Second Amendment, it seems to me that it would be entirely reasonable for originalists to read the absolute phrase as time-limited: the construction is similar to “the weather being hot, members may take off their jackets”. Under which interpretation, the Second Amendment is now null.

151

LFC 07.05.18 at 10:01 pm

Skipper,

The 14th Am. says no state can deprive someone of life, liberty or property w/o due process. What does it mean to deprive someone of “liberty”? The text doesn’t say.

So there are options. You can look at what those who wrote the amendment seem to have meant and/or what the ratifying state legislatures seem to have meant, to the extent this is recoverable. But what if it turns out one thing they meant was that “liberty” should have a meaning that is not fixed once and for all as of 1868, when the 14th Am took effect, but is deliberately open-ended enough to adapt to the society of 100 or 150 years later? In other words, what if the original drafters of this amendment (or any other, for that matter) chose general language precisely b.c they wanted the amendment to change the specifics of its application and even meaning over time? And what if you can find evidence of that in the congressional debates that led to its passage?

Then you would have a situation where an honest “originalism” would yield an “activist” jurisprudence (at least w/ respect to that provision, say), where “activism” means recognizing that the meaning of “liberty” is not frozen as of 1868, partly b.c the people who wrote the amendment didn’t want it to be so frozen (if, in fact, they, or at least some of them, didn’t).

And, btw, what if the only way to protect and nurture and ensure the functioning of “the democratic process” that the losing side in Obergefell claimed such great attachment to is by “activist” measures, say trying to ensure that everyone who’s entitled to vote actually is able to do so free of unreasonable hurdles? Or that huge amounts of money (masquerading as speech) don’t corrupt the democratic process and drown out all voices but a few?

You say that the Obergefell majority usurped the role of legislators. But what if the case had gone the other way and the issue had gone back to the states to be decided, say, in referenda? Isn’t it at least slightly ironic that the very same Justices who wanted the issue to be decided in the states by the democratic process are (or in the case of Scalia, were), for the most part, the Justices who have displayed the least interest in the integrity and functioning of that democratic process, who have been the most hospitable to the entry of huge sums of money into the process, who have been least concerned with efforts at voter suppression, who have weakened the Voting Rights Act, who have been mostly unconcerned about gerrymandering?

These judges write paeans to the democratic process when it suits them to do so, wrapping themselves in the mantle of judicial restraint and “non-activism,” while at the same time they do everything they can to weaken that democratic process and guarantee that its results will at least sometimes be open to doubt on the score of legitimacy. That is hypocritical, istm.

152

J-D 07.06.18 at 12:07 am

Hey Skipper

To my way of thinking, that is a perfect example of circular logic: It is a legal justification because it was presented as a legal justification.

If that were my argument, it would be circular; but it is not my argument!

My position is that there are three possible evaluations of the majority opinion in Obergefell:
(I) it is a piece of legal fakery;
(II) it is a piece of incompetence;
(III) it is a genuine, competent attempt at legal justification.

Is it your position that there is a fourth possibility and, if so, what is it?

153

Layman 07.06.18 at 1:17 am

Hey Skipper: “No, it isn’t.”

Well, who should I believe? You or your lying words? It’s so confusing!

154

Sebastian H 07.06.18 at 4:56 am

Much of the argument is an eternal rehash, but I’ll try to make a slightly different spin.

Whatever you want to call it, there has definitely been an upswing in the importance of social changes originating from the Court. Even if you believe that the social changes have been generally positive, you could argue that systemically it is unwise for Courts to gain to much on the legislatures as an agent for change.

For me the biggest problem with the Court as a primary agent of change is that its feedback processes are very weak. Once something has been ruled on a “constitutional” level, you can’t easily modify it if it is wrong or even easily soften it. That leads to situations where people compelled to vote for ‘their’ side even if they don’t currently like it much, because they can’t risk letting the other side get further entrenched constitutionally. It raises the stakes for losing more and more than democratic transitions should have to bear.

155

Orange Watch 07.06.18 at 3:10 pm

Most of the rest of what can be said has been said by others, but I’ll answer one single claim which was probably left unaddressed because of how pedantic addressing it must be:

That there happens to be more specificity in state Constitutions doesn’t weaken the case at all. That they chose to make explicit what was already implicit: absence is not exclusion.

Absence is also not inclusion. Especially if the matter is not actually agreed upon and non-controversial. Which you have conceded, and which would be even more evident if you did not pull the standard originalist trick of carefully only finding the contemporary opinions that agree with your desired outcome. Saying what is implicit needs not be stated only works when not stating something is unambiguous, and when what is stated does not contradict or confuse drawn inferences. The prefatory clause being operative is reasonable when you look at contemporary discussions of concern about militias being restricted by the federal government, no matter how much you want (and Scalia wanted) to pretend those inconvenient concerns never existed. The prefatory clause being wholly unrelated to the intent and scope of the amendment makes no sense, period. It’s the height of absurdity to claim that textualism lies in rejecting the written in favor of picking and choosing among possible unwritten meanings. Again, absence is not and must not be inclusion, and your insistence that it is sounds utterly bizarre coming from someone praising the limited scope of the Constitution. If it is not possible to limit the scope of the Constitution without exhaustively and explicitly stating what it does not mean… originalism in even its pure (and decidedly unpracticed form) cannot exist.

There is a reasonable argument to be made for a common law individual right to bear arms for self defense arising from the Constitution. It is found unenumerated by way of the 9th Amendment alongside other unenumerated rights, however, not by way of the pristine and lonely second clause of the second amendment.

156

Layman 07.06.18 at 5:57 pm

Sebastian H: “That leads to situations where people compelled to vote for ‘their’ side even if they don’t currently like it much, because they can’t risk letting the other side get further entrenched constitutionally. It raises the stakes for losing more and more than democratic transitions should have to bear.”

This strikes me as concern trolling. In a situation where adherents of one party feel compelled to vote for their candidate in order to change the balance of the court so that they may e.g. overturn marriage equality, surely the question is not ‘has the court gone too far and precipitated this crisis’, but rather ‘why the fuck do these cretins insist on discriminating against gay people who want to marry?’

157

Hey Skipper 07.06.18 at 6:17 pm

My position is that there are three possible evaluations of the majority opinion in Obergefell:
(I) it is a piece of legal fakery;
(II) it is a piece of incompetence;
(III) it is a genuine, competent attempt at legal justification.

Is it your position that there is a fourth possibility and, if so, what is it?

Yes, there is a fourth possibility:

A majority of the justices decided same-sex marriage needed legalizing, decided they were the ones to do it, and used some fluffy wordage as a fig-leaf to cover themselves.

That isn’t legal fakery, that is legislating from the bench.

Even if the result is good, the ends do not justify the means.

158

Hey Skipper 07.06.18 at 6:19 pm

[Nick S:] Eugene Volokh in which he argues that the constitution does contain positive rights. Precisely because his view of the constitution and law is more conservative than mine, I think it’s worth quoting:

Thank you; I stand corrected.

159

Hey Skipper 07.06.18 at 6:24 pm

[John Holbo:] Again and again you are assuming that if it makes moral sense to you it must be in the Constitution.

In citing Obergefell, I have repeatedly stated that the result made moral sense, but that there was absolutely nothing in the Constitution or precedent to enable the SC to redefine what constitutes marriage.

So, again, and again, stop putting thoughts in my head. You keep getting it wrong.

160

John Holbo 07.06.18 at 6:29 pm

I am relieved to see a comment by Sebastian H. This is such a Sebastian topic that if he hadn’t shown up at some point I would have gotten worried and started calling local hospitals! Glad to see you are safe and sound, Sebastian.

“Even if you believe that the social changes have been generally positive, you could argue that systemically it is unwise for Courts to gain to much on the legislatures as an agent for change.”

Sharpening this question: did the judicial activism of Roe v. Wade cause conservatives to become judicial activists, and simultaneously cause them to denounce judicial activism in principle? Or, if it hadn’t been that, would it have been some other damn culture war thing?

Sebastian is surely right that 9 life-time appointed, unelected officials are not an optimal body to regulate the pace of social change, or the rate of advance or retreat of cultural norms and notions. Process questions always pose this dilemma. It’s insane to value process more than outcome, tout court, because the point of process is good outcomes, overall. A really good outcome, right now, that risks impairing the prospects for a steady flow of modestly good outcomes, going forward, is always a puzzler. If you are thinking long-term, you should conservatively opt for the long-term flow, probably. Slow and steady wins the long-distance race. Then again, if you figure it’s only a matter of time before something happens, to impair that steady flow, you are maybe tempted by the really good outcome today. Better a golden egg in the hand, that kills the golden goose, than a golden egg in the hands of the enemy, that kills the golden goose. It’s a prisoner’s dilemma.

161

b9n10nt 07.06.18 at 8:29 pm

I’ve really enjoyed this game of piñata (er…discussion).

It has been factually illuminating for me, but also demonstrates a gulf between styles of reasoning. In everyday life, neuroticism is a bad thing: should I order the fish or the chicken? I want the chicken but that looks so boring…and cheap; oh damn there I am again thinking about appearances. Oh I hate dating!!! .

But in intellectual work, “neuroticism” is healthy and necessary: why might the ideas i hold to be right actually be wrong? I always suspect I’m missing something; I’m never fully at peace with my arguments. This isnt marketing…I want to know the truth. Like a cat, I startle at the first suspicion that there may be something in the environment that I haven’t accounted for?

It really does seem that Conservatives show up in The Discourse only to garishly market their truths. Where’s the neuroticism? At what cost have they stuffed their knowledge within an arrogantly showy costume of paper mache and tissue paper?

…So we keep hacking away. “We” are neurotic; we can’t help it! And though we can’t reasonably expect to reap nutritious sustenance from the piñatas entrails, we might strengthen our own powers in the process.

162

John Holbo 07.06.18 at 10:43 pm

“So, again, and again, stop putting thoughts in my head.”

That one’s tempting. But I’ll let it lie there.

163

John Holbo 07.06.18 at 10:48 pm

“A majority of the justices decided same-sex marriage needed legalizing, decided they were the ones to do it, and used some fluffy wordage as a fig-leaf to cover themselves.

That isn’t legal fakery, that is legislating from the bench.”

I’m sorry: if it’s just fluffy wordage as a fig-leaf to cover something that has, by hypothesis, no legal substance, how is it NOT legal fakery?

164

John Holbo 07.06.18 at 10:51 pm

Legislating from the bench is not incompatible with legal fakery, after all.

165

Collin Street 07.06.18 at 11:08 pm

Am I the only one amused by the notion of “pathologising dissent” as being diagnostic [note implications of that word] of progressivism?

[also… since I’m the only one who’s really doing it, does that mean I’m the only real progressive?]

166

John Holbo 07.06.18 at 11:12 pm

“Again and again you are assuming that if it makes moral sense to you it must be in the Constitution.

In citing Obergefell, I have repeatedly stated that the result made moral sense, but that there was absolutely nothing in the Constitution or precedent to enable the SC to redefine what constitutes marriage. “

But in other cases you are obviously quite happy to get a result that is not based on the text of the Constitution. For example, regarding 2A you are happy to ignore the inconvenient ‘militia’ clause – which is a big textualist no-no: finding no use for text. And you just do some common law/enlightenment ‘it makes sense to me’ stuff about how it ought to be a personal right. And you’re done. Why isn’t someone else allowed to do the same for same-sex marriage? Namely, come up with an argument that makes sense to them and declare that, therefore, it’s ‘in there’? The fact that you draw back from arguing for same-sex marriage on ‘it just makes philosophical sense’ grounds, even though you argue for personal gun rights on that basis, shows that you are capricious, not that you are consistent.

167

John Holbo 07.06.18 at 11:22 pm

“Am I the only one amused by the notion of “pathologising dissent” as being diagnostic [note implications of that word] of progressivism?”

If it weren’t for inadvertent self-diagnoses, some people wouldn’t have any diagnosis at all.

168

J-D 07.06.18 at 11:39 pm

I see that John Holbo, above, in two comments (currently numbered 163 and 164, and time-stamped at 10:48pm and 10:51pm) has recorded two of the things that went through my head when I read Hey Skipper’s most recent response to me, but on reflection (and at the risk of appearing to be ‘piling-on’, which I can only hope it doesn’t feel like to Hey Skipper) I framed in my mind a differently worded question which I would like (if possible) to have Hey Skipper’s answer to:

If (in a given instance) judges do something which can be described as legislating from the bench (which is what Hey Skipper says the majority did in Obergefell), does that count as an honest and competent attempt to do the job of a judge?

169

Collin Street 07.06.18 at 11:54 pm

If it weren’t for inadvertent self-diagnoses, some people wouldn’t have any diagnosis at all.

Heh.

[I don’t think I’ve actually mentioned this before, but it seems an appropriate time. Years ago I did once get assessed for autism: it came back with, “well, you’ve got most of the indicative signs but, let’s be honest now, you’re not actually impaired to any significant degree, are you? Probably you worked out the management techniques on your own or something.”]

170

John Holbo 07.06.18 at 11:55 pm

On the natural law front, I see that Rod Dreher is wringing his hands a bit today.

http://www.theamericanconservative.com/dreher/impotence-of-natural-law-arguments/

He quotes a bit from one of his readers, praising Scalia as exemplary for being, by sheer force of personality, one of “the real unacknowledged legislators of the world.” I think that’s pretty good at catching the irony of the situation, although I don’t think the reader quite meant it that way (maybe a bit.) Undoubtedly Scalia’s strength – his virtue – was his sheer knack for legislating from the bench, in an unacknowledged way. Transmuting personal preference into living law. That he managed to do it BY denouncing the practice of legislating from the bench, in an unacknowledged way, is really the most stylish part of the trick. And should not go unnoticed and applauded even by the rest of us plodders who feel a bit more conscientiously bound by the text of the poor thing.

171

Barry 07.07.18 at 12:42 am

” That he managed to do it BY denouncing the practice of legislating from the bench, in an unacknowledged way, is really the most stylish part of the trick. “

I can honestly not think of an example where a right-winger’s accusations were not confessions.

Also, I felt that the best summary of Scalia’s character (too lazy to google the examples) was a week in which two SCOTUS decisions were released, both overturning a law. In the first case, Scalia was in the minority, and castigated the majority for presuming to override the will of the legislature and executive (IOW, Scalia was pretending to have failed high school civics). In the second, Scalia was in the majority, and didn’t say anything about this problematic override.

I’m not saying that he had zero principles, but I am saying that betting on him being dishonest was by far the safer bet.

172

LFC 07.07.18 at 2:36 am

The wiki article on Amy Barrett, who is on Trump’s SCOTUS shortlist and clerked for Scalia, links to a piece of hers in Notre Dame L Rev on originalism and stare decisis. Not that I’m planning to read it, just FYI in case someone is interested.

173

Hey Skipper 07.07.18 at 11:21 am

[John Holbo:] For example, regarding 2A you are happy to ignore the inconvenient ‘militia’ clause – which is a big textualist no-no: finding no use for text.

Wrong. You are excluding the middle — there is an option other than finding no use, and exclusive use, for text. Which is what Stevens did. He asserted that by including that phrase, it excluded every other justification for providing the negative right of bearing arms.

But, and I think I’m repeating myself here, doing so completely ignores the natural law bases for the Constitution, and a great deal else, besides:

One aspect of the Heller majority opinion that has not yet attracted the attention of commentariat, but may be greatly important of the long run, is the presence of natural law.

Heller reaffirms a point made in the 1876 Cruikshank case. The right to arms (unlike, say, the right to grand jury indictment) is not a right which is granted by the Constitution. It is a pre-existing natural right which is recognized and protected by the Constitution:

“it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed…”

This is consistent with Blackstone’s language, quoted by the majority, that the right to arms protects the “natural right of resistance and self-preservation.” The majority writes that “Justice James Wilson interpreted the Pennsylvania Constitution’s arms bearing right, for example, as a recognition of the natural right of defense “of one’s person or house’ — what he called the law of “self preservation.’”

Likewise quoted with approval is the 1846 Georgia Supreme Court decision Nunn v. State, which “construed the Second Amendment as protecting the “natural right of self-defence’.” Similarly, “A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769…”

174

Layman 07.07.18 at 11:38 am

Hey Skipper: “I have repeatedly stated that the result made moral sense, but that there was absolutely nothing in the Constitution or precedent to enable the SC to redefine what constitutes marriage.”

Yes, you have. That’s the problem, really. There are things in the Constitution the majority can point to, and they did, but you pretend there aren’t and that they didn’t. When someone points those things out to you, you say they are insufficient (which is not the same as absent), but then go back to pretending that they aren’t there. There is even precedent, precedent which the minority also endorsed while somehow denying it was precedent, and you copy that trick, too. You have an opinion which is impervious to facts and impervious to argument, and that opinion is simply wrong. You are irrational on the subject.

I don’t say that you are irrational because you disagree with the majority and agree with the minority; I say you are irrational on the subject because you claim there is no merit of any kind in the majority’s argument even after that merit is pointed out to you, and because you say there is no flaw of any kind in the dissent even after those flaws are pointed out to you. You seem incapable of learning anything about this particular subject.

You and I would surely continue to disagree on whether Obergefell was decided correctly, but it should be possible to disagree without taking the bizarre position that the decision was an easy one to make and that only one side’s position had any merit whatsoever. As an exercise in self-improvement, look back over this entire thread, at every exchange you’ve had, and see if you can identify even one time where you acknowledged that, on a particular point, your opponent had the right of it, and as a result modified your own argument. I can’t see it, not anywhere. Doesn’t that strike you as troubling?

175

Hey Skipper 07.07.18 at 12:35 pm

“Am I the only one amused by the notion of “pathologising dissent” as being diagnostic [note implications of that word] of progressivism?”

James Damore

176

Layman 07.07.18 at 1:20 pm

Hey Skipper: “But, and I think I’m repeating myself here…”

You certainly are, but it doesn’t improve with reputation. You cannot simultaneously insist that the Constitution be interpreted solely on the basis of the actual text, and that you are free to consider the other factors you want to consider beyond the text if it suits your need. If only the text matters, then the natural law assumptions that preceded it are irrelevant, because you can and must rely on only the text. If instead the natural law assumptions that preceded it are important to consider, then it is not only the text that matters. Pick one or other, and try to stick to it.

177

Hey Skipper 07.07.18 at 1:26 pm

[J-D:] If (in a given instance) judges do something which can be described as legislating from the bench (which is what Hey Skipper says the majority did in Obergefell), does that count as an honest and competent attempt to do the job of a judge?

Legislating from the bench is legislating from the bench; there is no need to characterize it any further.

I turn next to two issues that arise in context of the Heller opinion, but transcend the Second Amendment: first, judicial activism versus restraint; second, implications for the political branches.

In dissent, Justice John Paul Stevens quarreled primarily with Justice Scalia’s interpretation of historical events; but Stevens also implied that Scalia had abandoned true judicial conservatism by dragging the Court into the “political thicket” of gun control. “Judicial restraint would be far wiser,” wrote Stevens, than mediating a political process that is “working exactly as it should.” That’s quite an astonishing statement coming from Justice Stevens — the same Justice who had no such reservations just one day earlier when he voted to invalidate Louisiana’s death penalty for child rape and substitute an outright ban on capital punishment for any crime that isn’t fatal to its victim.

Demands for judicial restraint by the Court come more often from the political right. As I have written elsewhere (in a recent book co-authored with William Mellor): Some conservatives, reacting to the perceived excesses of the Warren Court and the ability of liberal interest groups to advance their agendas through the courts, insist that courts indiscriminately defer to the decisions of Congress and state legislatures. Yet blanket judicial deference effectively removes the courts from the meticulously crafted system of checks and balances that was designed by the Framers to prevent abuse of power. Over the years, the result of judicial abdication has been to expand government, at all levels, at the expense of individual rights.

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional. Deference in the face of excesses by the political branches, coupled with an allegiance to precedent, means that conservatives are rarely willing to overrule prior cases, leaving entrenched the very foundations of the regulatory and redistributive states they rail against. In practice, judicial restraint has mutated into judicial passivism, with a predictable result: more government power and fewer constitutionally protected individual rights.

Are we to conclude, therefore, that judicial activism — that is, the type of judicial intervention routinely condemned by liberals and conservatives alike — is actually a good thing?

Yes, if activism means engagement — applying the law and the Constitution to scrutinize the acts of the executive and legislative branches. Judges have a responsibility to invalidate all laws that do not conform to the Constitution. Courts would be derelict if they endorsed unconstitutional acts merely because our elected representatives passed them. In that respect, overturning the D.C. gun ban was a clear example of principled judicial engagement.

But if activism means rendering legal judgments based on the judge’s public policy preferences, it should be roundly condemned. Results-oriented jurisprudence, based on subjective value judgments, may be proper for a legislator, but not for a judge. His role is to apply the law, not impose his policy preferences

178

John Holbo 07.07.18 at 1:54 pm

Skipper: “This is consistent with Blackstone’s language, quoted by the majority, that the right to arms protects the “natural right of resistance and self-preservation.” The majority writes that “Justice James Wilson interpreted the Pennsylvania Constitution’s arms bearing right, for example, as a recognition of the natural right of defense “of one’s person or house’ — what he called the law of “self preservation.’”

OK, this is veering off in the direction of actually substantive argument. So I’ll bite. (Although, for the record, you are still pretty deep in the hole, owing responses to criticisms from upthread.)

I get it. I understand the logic of this way of looking at things. But – this is my point! – this is exactly the kind of legal logic that underpins the ‘activist’ jurisprudence you abominate. Namely, the idea that there are rights out there ‘naturally’. They aren’t mentioned in the Constitution (unless you really squint to see the Magic Eye picture.) But, because they are real – natural – the Constitution protects them despite their technical absence from the text. There is no individual right to bear arms in the text of the Constitution. But there is such a right in nature, ergo it’s protected by the Constitution. (That’s the argument.) But why can’t I now just cobble together a natural right to same-sex marriage?

You could say that, in order to be Constitutional they need to be 1) natural and pre-existing; 2) at least winked at in passing, in the Constitution. That would cover the guns case, not same-sex marriage. What’s wrong with this?

Well, at the very least, it’s arbitrary. If the Constitution protects natural rights, not just enumerated ones, then it protects natural rights – whether they are name-checked in the Constitution or not. You want a natural right to same-sex marriage? I can whittle you one in just a few minutes in such a way that you will recognize it comes from the same hard wood as certain amendments we all know and love. That isn’t to say it’s already there in the text, in black-and-white, but if all it takes is for it to be plausibly natural AND plausibly implied, by natural moral logic, by stuff that’s definitely in there, we’re good.

To put it another way: natural law jurisprudence isn’t different in practice from ‘living Constitutionalism’. Both identify independent moral and political goods, outside the Constitution, and drag the Constitution to get there. So, if you are a natural law guy, stop presuming to club the living constitution folks with ‘textual originalism’. You yourself are no more rigorously textualist than they are. It is disingenuous to pretend otherwise.

“Heller moves self-defense from the shadowy limbo of the Ninth Amendment into the bright uplands of the Second Amendment. It is now beyond dispute, in an American court, that self-defense is an inherent right, and that it is protected by the United States Constitution.”

Why can’t I just say that Obergefell moves same-sex marriage from the shadowy limbo of the 9th, plus the Contracts Clause (positive rights!) into the bright uplands of the 14th? (I am framing the case a bit differently than the actual majority opinion, but the basic moral logic of what I am saying is the same.)

You may say that for some reason (that you left in your other suit, but it’s a very good reason!) this Obergefell argument is ever-so-much worse than the Heller argument. Let it be so! Even so, back on earth, they are the same KIND of argument. So at least drop this pretense that Obergefell is no kind of legal argument at all (sheer fraud, in effect); whereas Heller is an excellent – even rigorously textualist! – argument. That’s just nonsense. Both are cases of considerable legal argument. Both are cases of legislating from the bench, to get what is felt to be a desirable moral result.

“James Damore”

Look, if you roll into a thread and imply that folks are nuts, expect some flak. If you don’t like being made fun of, when you make bad arguments, adopt a different tone – or stop making so many bad arguments.

179

Collin Street 07.07.18 at 2:46 pm

Both are cases of considerable legal argument.

Eh. It’s really, really hard to read the text of the US constitution as establishing an individual right to bear arms; even setting aside the historical context [which also is pretty unambiguous]; the bill of rights uses “the people” and singular nouns [“the accused”, “the owner”], and where we can establish a clear distinction in the underlying right the word used and the singular-vs-collective distinction align pretty clearly.

[even in the fourth amendment, where the right to be secure in your papers is clearly envisaged to be an in-the-general-case thing, not an absolute rule; that’s why it talks about situations it can be set aside]

So the second amendment sets out a collective right on the face of it. I mean, straight text-for-textualism, even setting aside the legislative and constitutional history and the inclusion of a collective “militia” in the first paragraph, both of which are seperately determinative that it’s a collective right. The judgement that it was an individual right is, bluntly, indefensible hackwork. It’s just bullshit, I guess in the sense that it’s meant to fool people like Skip without actually being believed.

180

John Holbo 07.07.18 at 2:53 pm

“really hard to read the text of the US constitution as establishing an individual right to bear arms”

The text of the US constitution clearly does NOT establish an individual right to bear arms. Nor does it clearly establish a right to same-sex marriage. No one who is a serious textualist originalist would seriously entertain either claim. So construct the Venn diagram. The set of people who think Heller is not just wrong but fraudulent. The set of people who think Obergefell is not just wrong but fraudulent. The set of people who can credibly claim to be textualists is the intersection. They think both cases were fraudulently – since non-textually – argued.

181

John Holbo 07.07.18 at 3:01 pm

“Legislating from the bench is legislating from the bench; there is no need to characterize it any further.”

So long as you incurious as to whether any of the stuff you have been saying is warranted , there is no need. But if it seems interesting to find out whether you’ve been talking complete smack, there is a need.

182

Collin Street 07.07.18 at 3:03 pm

I mean… exactly how much formal linguistics training did Scalia have? eighteenth-century english isn’t the same as what we speak today; did he have the background to identify the subtle differences?

Because unless he did the best part of an undergrad major in linguistics — he could skip phonology, I guess — he just never had the tools he needed to tease out any sort of original meaning with any reliability.

183

Sebastian H 07.07.18 at 3:15 pm

John, I feel like your response to me was very throw away. Benevolent dictatorships could get good outcomes, but we don’t seek them. A big part of the problem is that a dictatorship removes many of the feedback mechanisms that exist in other political systems, so they are inherently unlikely to stay benevolent. They are also very difficult to remove once in power, so as they become less benevolent, it becomes very socially costly to deal with them. (Which is close to a restatement rather than another point I suppose).

184

John Holbo 07.07.18 at 3:19 pm

“eighteenth-century english isn’t the same as what we speak today; did he have the background to identify the subtle differences?”

This is a point Posner makes. Textual originalism obliges judges to be professional linguists AND historians, but they are not professionally trained to be either. This creates a paradoxical situation in which there could be professional textual originalists, but they wouldn’t be the judges. Supreme Court justices must be amateur Constitutionalists, ideally. (They might be very talented amateurs. No one denies that amateurs are sometimes better than the professionals. But it’s a weird way to run the Constitutional railroad.)

185

Hey Skipper 07.07.18 at 4:05 pm

[John Holbo:] This is a point Posner makes. Textual originalism obliges judges to be professional linguists AND historians, but they are not professionally trained to be either.

Sounds like you assume SC justices do not have any resources at their disposal for research and recommendations.

186

Hey Skipper 07.07.18 at 4:07 pm

[Layman:] You certainly are, but it doesn’t improve with reputation. You cannot simultaneously insist that the Constitution be interpreted solely on the basis of the actual text

You are absolutely correct, I cannot do such a thing.

Now, embrace the power of the direct quote.

187

Hey Skipper 07.07.18 at 4:10 pm

[Layman:] I say you are irrational on the subject because you claim there is no merit of any kind in the majority’s argument even after that merit is pointed out to you, and because you say there is no flaw of any kind in the dissent even after those flaws are pointed out to you.

Once more, embrace the power of the direct quote.

NB: it isn’t as if there isn’t any expert criticism of Obergefell on these grounds.

188

Faustusnotes 07.07.18 at 4:14 pm

So do I have a natural, inherent right to possess nuclear weapons?

189

John Holbo 07.07.18 at 4:20 pm

Skipper: “Sounds like you assume SC justices do not have any resources at their disposal for research and recommendations.”

Sounds like you assume amateurs can’t have resources at their disposal for research and recommendations. I disagree.

Sebastian: “John, I feel like your response to me was very throw away.”

I was just glad that you weren’t in the hospital or something! (I kid, of course.)

“A big part of the problem is that a dictatorship removes many of the feedback mechanisms that exist in other political systems, so they are inherently unlikely to stay benevolent.”

I agree with this. And I agree with your point that lifetime, unelected judicial appointments have something para-dictatorial about them.

190

Hey Skipper 07.07.18 at 4:24 pm

[John Holbo:] I get it. I understand the logic of this way of looking at things. But – this is my point! – this is exactly the kind of legal logic that underpins the ‘activist’ jurisprudence you abominate. Namely, the idea that there are rights out there ‘naturally’. They aren’t mentioned in the Constitution (unless you really squint to see the Magic Eye picture.) But, because they are real – natural – the Constitution protects them despite their technical absence from the text. There is no individual right to bear arms in the text of the Constitution. But there is such a right in nature, ergo it’s protected by the Constitution.

The Constitution is not an uncaused effect. It cannot be separated from the natural law philosophy of the time: one of the fundamental rights of all humans, predating government, is the right of meaningful self defense.

The 1A contains others: freedom of conscience, speech, and association.

Since the writing of the Constitution was within a context that took these things as given, then it should come as no surprise that there aren’t extensive justifications within the Constitution for their existence. (Indeed, at the time, the main controversy over adding the Bill of Rights was that these things were so axiomatic that they didn’t need including, and imperiled other rights by their absence.)

Stevens desire to eliminate the 2A strongly suggests strongly motivated reasoning.

191

Hey Skipper 07.07.18 at 4:36 pm

[John Holbo:] “James Damore”

Look, if you roll into a thread and imply that folks are nuts, expect some flak

Where did I imply that folks are nuts? I keep asking you to quote me directly, you keep failing to do so, and you keep getting it wrong.

I didn’t imply folks were nuts, only sarcastically noting that it is a trait of collectivists to first demonize, then ostracize, dissent. Clifford Street is emblematic of the Soviet Union. Those contradicting collectivist shibboleths are, by definition, mentally ill.

And when you suggest I am out of bounds, you completely forget an ample track record. James Demore said nothing that isn’t at least arguably objectively true, and, in the process, argues that Google’s drive to greatly increase female representation in IT is doomed to either failure, or widespread, illegal, discrimination.

For that, collectivists pathologize him — labelling someone a misogynist is an accusation of moral or mental failure, after all — en route to ostracizing him.

There are plenty more examples to be had, and everyone of them comes under this heading: an insult where an argument belongs.

192

Hey Skipper 07.07.18 at 4:39 pm

[Faustusnotes:] So do I have a natural, inherent right to possess nuclear weapons?

You have a natural, inherent right, to meaningful self defense. Unless there are those who are directing nuclear weapons at you, personally, then no.

What you do have a right to is weapons commonly possessed by law abiding citizens (and the police, and the body guards of celebrities and politicians.)

193

John Holbo 07.07.18 at 5:41 pm

“The Constitution is not an uncaused effect.”

So if I say that the cause of the Constitution was a desire for justice – which is true! – then anything I think is just is in the Constitution?

“Where did I imply that folks are nuts?”

I keep saying it and you keep dodging it: you think judges are basing their judicial opinions on whims and fig leafs. If that’s true, then those judges are either insane or frauds. How not?

194

Layman 07.07.18 at 5:49 pm

Hey Skipper: “You are absolutely correct, I cannot do such a thing. Now, embrace the power of the direct quote.”

Happy to oblige.

Here you say that Obergefell was wrongly decided for reasons of textualism:

“…there was absolutely nothing in the Constitution or precedent to enable the SC to redefine what constitutes marriage.”

Here you argue that one can consider things besides the text:

“He ignored the majority (9, if memory serves) of the 13 states explicitly insisting on the individual right to bear arms, as a consequence of the natural right to self defense.”

If the text is all, what 9 states said before the amendment was agreed is no more relevant than what their representatives had for breakfast. It what they said is relevant, then textualism is not all. If the latter is the case, then you can’t fault the majority in Obergefell for (you say) not founding their ruling on the text.

(Note that I think your Obergefell criticism is wrong anyway, but you’ve managed to make it both wrong and inconsistent.)

195

Layman 07.07.18 at 6:03 pm

Hey Skipper: “Once more, embrace the power of the direct quote.”

Again, happy to oblige.

Quotes in which you deny merit in Obergefell:

“Obergefell (NB: I don’t disagree with the outcome, but rather what is perhaps the worst reasoning of any decision ever.)”

“…the majority opinion was arrived at almost exclusively because that was the outcome the majority desired.”

“…Obergefell was as pure an example as you could hope to find of judges legislating from the bench.”

Much of the rest of this thread is made up of 1) people pointing to legitimate constitutional bases for the majority opinion, and 2) people pointing to flaws in the dissent. There is not one response from you to any of those comments in which you acknowledge any merit in the majority or any flaw in the dissent. I can’t be bothered to list them all, especially since you can prove me wrong by pointing to the ones you wrote where you do acknowledge those points. I won’t hold my breath.

196

LFC 07.07.18 at 8:56 pm

197

Whirrlaway 07.07.18 at 10:12 pm

@HeySkipper

A trolly carrying a terrorist on his way to destroy a major city with a nuclear weapon is approaching a switch. As the switch is set, the trolly will be diverted onto the siding where you are standing, likely resulting in your death or serious injury as you blindly leap off the trestle. You have a remote control that will switch the trolly onto the mainline downtown, giving you time to bug out.

Do you have an absolute right to self-defense? If you say yes, I don’t want you on my team.

198

Collin Street 07.07.18 at 11:39 pm

Where did I imply that folks are nuts?

We told you. Use of the word “diagnostic” [“concerned with the diagnosis of illness or other problems.”, sez a definition I found] in reference to progressivism.

[for reference, “implication”: the conclusion that can be drawn from something although it is not explicitly stated. If you want your implication to be stated in plain words… this suggests you don’t actually understand what “implication” means, which…]

199

J-D 07.07.18 at 11:42 pm

Hey Skipper

I asked you a question. You refused point-blank to answer it. That leads me to conclude that you aren’t interested in a serious discussion with me, and prompts me to respond in the vernacular: rack off.

200

Orange Watch 07.08.18 at 12:51 am

HS@190:
Stevens desire to eliminate the 2A strongly suggests strongly motivated reasoning.

It suggests no such thing. It suggests that he believes the Court has misinterpreted the 2A, and that as a result of that misinterpretation eliminating it would now do more good than harm, particularly given that the purpose of the Amendment as understood prior to Heller is no longer considered a pressing one. That’s it. Stating that the repeal of the 2A should be carried out to eliminate legal resistance to gun control isn’t confessing nefarious motives 10y ago, it’s commenting on how our system of government is structured.

201

Hey Skipper 07.08.18 at 4:56 am

[Whirrlaway:] Do you have an absolute right to self-defense? If you say yes, I don’t want you on my team.

Yes, I have an absolute right to self defense, as do you.

What you or I do with that right is an entirely different matter.

202

Hey Skipper 07.08.18 at 5:06 am

[Hey Skipper:] Where did I imply that folks are nuts?

[Collin Street:] We told you. Use of the word “diagnostic” [“concerned with the diagnosis of illness or other problems.”, sez a definition I found] in reference to progressivism.

Why yes, now that you mention it, I did.

Well, except for one problem. I never characterized, or even implied, that progressivism is “nuts”. You did that all on your own.

In my use, “diagnostic” [straight out of the dictionary: characteristic of a particular species, genus, or phenomenon] could be replaced with “typical”, “often associated with”, etc.

So, no. I never implied folks are nuts. Your projection and incomplete dictionary are not my problems.

203

Hey Skipper 07.08.18 at 5:13 am

[Layman:] If the text is all …

Originalism is about more than just the text of the Constitution itself. It is also about what people at the time took it to mean, as well as its bases.

The Constitution is predicated on natural law. It makes no sense — as that SCOTUS blog link I provided above discussed — to treat the 2A as anything other than a negative right limiting government. To do otherwise means that an inherent right of individuals is up to the whim of government. Did anyone at the time believe that?

204

Hey Skipper 07.08.18 at 5:53 am

[Layman:] Much of the rest of this thread is made up of 1) people pointing to legitimate constitutional bases for the majority opinion, and 2) people pointing to flaws in the dissent.

Flaws in the majority opinion: it reached into the bottomless bag of “fundamental rights” (i.e., judicial invention); invoked the right to privacy where none is involved; short-circuited the ongoing political process; used the 14th amendment as justification for something those who wrote and passed the amendment would have found incomprehensible (along with everyone else up until a decade or so ago); it would inevitably lead to attacks on the religious liberty of those objecting to same sex marriage; and there was nothing in any accepted meaning of any part of the Constitution, its precedents, or subsequent decisions giving any judicial basis

Strengths in majority opinion: there are really no good reasons to deny the comfort and security of marriage due to the gender.

Which is a great reason to allow the political process to play out. But it doesn’t overcome all the objections. If the SC can, on the say-so of five people, redefine marriage, what can the SC not do?

Finally, you are faced with a profound contradiction of your own: Okay, a previously unmentioned fundamental right, unknown for virtually the entirety of history, is suitable for incorporation.

Then how is it the 2A, an enumerated right, well substantiated, with extensive judicial precedents, understood to be a negative right natural right preceding government, isn’t?

That’s the contradiction you need to address.

205

Hey Skipper 07.08.18 at 5:56 am

[J-D:] I asked you a question. You refused point-blank to answer it. That leads me to conclude that you aren’t interested in a serious discussion with me, and prompts me to respond in the vernacular: rack off.

Yes, I did answer it. I just refused to accept the options you offered as the only ones available. Perhaps you are the one who isn’t interested in a discussion on anything but your terms.

206

J-D 07.08.18 at 8:01 am

Hey Skipper

No, you didn’t answer the question I asked. You posted a lengthy series of statements, but neither any of those statements individually nor the whole of them taken together answered my question.

I just refused to accept the options you offered as the only ones available.

Since I didn’t offer options as possible answers to my question, still less suggest that your answer had to be limited to options offered by me, your statement is an obvious falsehood.

So I repeat: rack off.

207

Another Nick 07.08.18 at 8:51 am

HS: “the religious liberty of those objecting to same sex marriage”

But but billy goat but…there’s no such thing. You misunderstand the concept. In a secular state, people are free to practice whatever form of religion they like without interference from the state – so far as that religious practice falls within the law of the land. They have zero rights to religious liberty outside the law of the land. And they are not being discriminated against, because *the law applies equally to everybody*.

208

Collin Street 07.08.18 at 9:27 am

So, no. I never implied folks are nuts.

I accept arguendo that you did not intend to imply that folks were nuts.

But… look. The reality is, when something happens as a result of our actions that we didn’t intend to result, we still say, “we did it”. I drive too fast and hit a schoolkid who dies, people say, “Collin killed the kid”. Not my intent, not what I wanted… but it was what happened, and it was my action.

But this isn’t how you think. You think, if it wasn’t what Skipper wanted to happen then it wasn’t a thing skipper caused; it’s everyone else’s fault, or the universe’s. Not you! You’re only responsible for the things you wanted to happen. Accidents, undesired outcomes, are always the other guy’s fault; they should have known things about you that… you’d never told them about, right? They should have just known! It was obvious what you thought, how could they think you thought any different!!

Familiar exchange?

That, my friend, is autism. Autism is — inter-alia, although this is the core of it — problems with understanding that other people know things you don’t and don’t know things that you do. In the instant case: you presumed that I knew — and you hadn’t told me or mentioned this — the exact meaning of “diagnostic” that you were using, that I was unreasonable for using a more-common one.

And this is hardly the only example even in this thread. I’m not going to hunt up examples; if you want to fix your problems, you’re going to have to start trusting other peoples’ descriptions.

Again. Not a damned thing about pathologising your politics, because none of this has anything to do with your political convictions. I think you have autism because you display the reasonably-obvious discourse-structure effects that autism [and other conditions] cause.
[and also because you seem unaware of your emotional state and because you don’t seem motivated by self-aggrandisement and because you seem to have difficulties with handling things that have more than one salient nature or which have properties describable as continua; these sorts of things let us distinguish autism from the other problems that involve difficulty realising other people don’t share your knowledge]

So. That being the case… what are you going to do about it? I’m not really interested in engaging with your current surface presentation. Mostly at this point I expect that what I’ll be responding with is detailed explanations of exactly why your responses and questions indicate language impairment. This… won’t actually help you in any way, because you’re not in a state-of-mind that will be receptive to that, and also won’t be much fun for you. Or for me, but it’s more fun than reading your deranged gibberish and sitting silent, which is the alternative choice I have. Other people will largely be coming to equivalent conclusions based on their individual assessments of your problems… and their actions will probably come to resemble mine increasingly, I would guess.

You could stop this by stopping posting. I can’t force you, but… it’s probably your best choice at the moment, if “seeking mental-health assistance” isn’t a choice that seems open or reasonable to you and if “constantly being told in detail that you suck” isn’t something you’re in for.
[“you suck” is an action you are performing, not your innate nature. You can stop sucking… but to do that you have to change what you do.]

209

Faustusnotes 07.08.18 at 11:10 am

Hey skipper, where in the constitution does it say that I have a right to have the same weapons as the police? It says I have the right to bear arms, but it doesn’t say whose arms I have to match. There was no police force when the constitution was written. Are you drawing an inference from the text? Not very originalist of you!

But if I can have the same weapons as the police can I have grenades, grenade launchers and tactical armoured vehicles?

I would point out to you that your gun loving friends say we need guns to defend against tyranny. Is this your interpretation? Because the us govt has nukes and could be pointing them at me. Why can’t I have nukes?

210

Layman 07.08.18 at 12:02 pm

Hey Skipper: “Strengths in majority opinion: there are really no good reasons to deny the comfort and security of marriage due to the gender. Which is a great reason to allow the political process to play out.”

…which is as clear a way as any of admitting that what I say is true, that you can find no legitimate Constitutional arguments in the majority decision, despite people having pointed them out to you. Can I ask why you find it necessary to play these silly games, where you object to something like this that I’ve said and then end up copping to it anyway, while pretending that you haven’t? It doesn’t make me think you’ve got real confidence in either the strength of your argument or the reasonableness of your behavior here.

“Okay, a previously unmentioned fundamental right, unknown for virtually the entirety of history, is suitable for incorporation.”

Even the minority recognized the right to marriage as a known fundamental right. Even the minority recognized that the Court had previously change the rules about who could or could not marry. They simply argued that this time was different. Isn’t that so?

“Then how is it the 2A, an enumerated right, well substantiated, with extensive judicial precedents, understood to be a negative right natural right preceding government, isn’t?”

Can you point to any comment of mine which justifies you asking that question of me? I doubt it.

211

Layman 07.08.18 at 12:26 pm

Hey Skipper: “Originalism is about more than just the text of the Constitution itself. It is also about what people at the time took it to mean, as well as its bases.”

It sounds like Originalism contains multitudes.

I think JH has dealt with this far better than I ever could, but if Originalism includes what people took it to mean at the time, then point to the people at the time who took it to mean that it was an individual right? Who were they? How many of them were there? Why didn’t their view of an individual right make it into the actual text of the Constitution in such manner so as to avoid confusing the issue? What is the meaning of the first clause of the text, that bit about militias? Surely that bit deserves attention, right? Who said that, and why, and what was the point of calling attention to it? If I can consider the views of people on this subject, which views were not clearly captured in the actual text, can I consider the views of other people at the time, whose views on any subject I can imagine never made it into the text of the Constitution at all, and declare those views to be the Constitution, too? Why not?

The same applies to the ‘bases’. What are they? Who gets to decide? Whatever they are, do they get incorporated into the Constitution entirely, including all their good and bad bits? If I’m a judge, and I’m considering the Constitutional prohibition on cruel and unusual punishment, can I use as a guide English Common Law, and thereby conclude that to hang someone nearly to the point of death, and then revive them so that I can first emasculate them, and then disembowel them, and then behead them, and then cut their remaining body into four pieces, and then to seize all their worldly possessions, effectively impoverishing their heirs — that this punishment regime is not cruel and unusual? Why not? It’s right there in English Common Law. If the answer is that the text of the Constitution trumps English Common Law in this case, why can’t someone else argue with equal validity that the text of the Second Amendment trumps any prior view you want to point at to justify your notion of an unfettered right to bear arms?

212

Cranky Observer 07.08.18 at 1:10 pm

This Natural Law sounds really interesting and I’d like to learn more about it. Perhaps Mr. Chimeless, I mean Mr. Skipper, could point me to the full unabridged reference text if this Law so I can read it word for word. Skipper?

213

John Holbo 07.08.18 at 3:53 pm

There’s a lot not to like in what Skipper has to say, but my vote for unlikeliest legal thought in the thread maybe goes to:

“Legislating from the bench is legislating from the bench; there is no need to characterize it any further.”

I think when Skipper says ‘no need’ what he means is that it would all unravel pretty quick if this thread were tugged. But, fair is fair, I ask again. Skipper, you don’t seriously think this works, do you? This is just you doing your best ‘pay no attention to the man behind the curtain!’, right?

214

LFC 07.08.18 at 4:39 pm

The Tushnet piece I linked earlier, which I perused fairly quickly, argues inter alia (apologies b.c I’m prob simplifying here) that the 2A had more one discernible “original meaning” at the time of its enactment. The majority chose one; the dissent another. Hence originalism, even of the “public meaning” variety, does not obviate the need for judicial choice and the application of judgment and some amount of subjectivity. Seems a pretty persuasive argument.

Another thing he says (no doubt a frequently made pt) is an argument vs. originalism of whatever variety, and that is that the meaning of words is often connected to background facts. As those background facts change, the meaning may change. Hence if Madison were to come back to life and had knowledge of various changes (political, social etc.) that had occurred since 1791, and you asked him what, say, the 2A means now, as opposed to what it meant then, he might well answer that it means something different now. In which case one shdn’t even care what it meant in 1791, unless that approach can guarantee an objective, neutral method of constitutional adjudication that produces “right” answers without reference to the judges’ own moral and political and jurisprudential beliefs and framework of values.

And that’s the problem: there is no neutral, objective method of constitutional interpretation or “construction.” It doesn’t exist. Originalism of whatever variety doesn’t furnish it, Scalia’s and Skipper’s insistence to the contrary notwithstanding. And since there is no escape from judgment (and subjectivity), there is no escape from competing weightings of considerations that cut in different directions.

That’s why human beings, as opposed to machines, are judges (or Justices) in the first place. If there were an objective, neutral method of deciding these kinds of cases, you could just get nine sophisticated computerized robots, program them with a ton of precedents plus a working knowledge of whatever else was deemed necessary, and put them on the bench. That’s why it’s so sad that the Senate nomination hearings for Sup Ct justices have become a meaningless, stupid charade, where the Senators ask the nominee (whoever it is) what their approach to judging is and the nominee says “fidelity to the law” or “careful application of the law to facts with due appreciation of the judiciary’s limited albeit important role in our system of government” or “calling balls and strikes” or whatever banal, meaningless answer they give. You might as well have robots sitting in the witness chair in those hearings for all the light they usually throw on the nominee’s beliefs. (Occasionally they do, when a Senator digs down into a particular item from the paper trail, but the majority of the time it’s a pre-choreographed ballet that doesn’t illuminate anything, except what we already knew.)

215

Layman 07.08.18 at 8:59 pm

LFC: “The Tushnet piece I linked earlier, which I perused fairly quickly, argues inter alia (apologies b.c I’m prob simplifying here) that the 2A had more one discernible “original meaning” at the time of its enactment. The majority chose one; the dissent another.”

Yes, no doubt. The entire document is a compromise between people who disagreed, and the often best compromise in such cases is something with enough ambiguity that all sides can either claim victory, or at least not reject it. Given that, both textualism AND original intent seem not very useful as methodologies. At least, anyone who proposes to use them better be quite clear about how he/she intends to resolve that difficulty, and be consistent in applying that rule.

216

Orange Watch 07.08.18 at 9:48 pm

HS@203:

It makes no sense — as that SCOTUS blog link I provided above discussed — to treat the 2A as anything other than a negative right limiting government. To do otherwise means that an inherent right of individuals is up to the whim of government. Did anyone at the time believe that?

By all appearances, and as concluded by the 217y of caselaw preceding Heller that Scalia casts aside even as he claims he’s affirming it, many people at the time believed it was a negative law limiting the Federal gov’t. That says not one blessed thing about whether it is a negative law limiting the gov’t contra individuals or militias. The caselaw said it was a negative right WRT a collective right to bear arms, not an individual right. Contemporary documents that Scalia picked over and set aside did likewise. Your observation is at best irrelevant to the actual point under discussion.

LFC: Thanks much for linking the Tushnet piece. That articulated a whole lot about the subject that I could broadly see but had not been able to put into words.

217

LFC 07.08.18 at 10:13 pm

@Orange Watch
Glad it was helpful.

218

Hey Skipper 07.09.18 at 10:07 am

[Hey Skipper:] Where did I imply that folks are nuts?

[John Holbo:] I keep saying it and you keep dodging it: you think judges are basing their judicial opinions on whims and fig leafs. If that’s true, then those judges are either insane or frauds. How not?

You pose a false dichotomy that I’m pretty sure I’ve already repudiated. A great many legal experts think Obergefell to be based upon judicial whims, covered by fig leaves. Whether you agree, or not, take that as read for a moment. Please explain how that leads to only two possible options, one of which I must pick.

Nonsense. How about this for a third, which I am quite certain I stated above. The justices in the majority believed that the prohibitions against same-sex marriage were an affront to dignity and liberty, they knew they could end that affront, and decided that the Constitution, law, and precedent were insufficient justifications not to do so.

Over to you, John. To the extent that plausibly characterizes their collective state of mind, which are they, insane, or frauds?

Oh, right. Neither.

219

Hey Skipper 07.09.18 at 10:10 am

[J-D:] Since I didn’t offer options as possible answers to my question, still less suggest that your answer had to be limited to options offered by me, your statement is an obvious falsehood.

So I repeat: rack off.

Okay. How about being charitable and consider the possibility that I don’t remember to which question you are referring, and repeat it. Copy and paste isn’t that hard.

The alternative you have chosen doesn’t put you in a particularly flattering light.

220

Hey Skipper 07.09.18 at 10:12 am

[Another Nick:] In a secular state, people are free to practice whatever form of religion they like without interference from the state – so far as that religious practice falls within the law of the land. They have zero rights to religious liberty outside the law of the land.

You have spoken. Time to ditch the Lemon test.

221

Hey Skipper 07.09.18 at 10:15 am

[Collin Street:] I accept arguendo that you did not intend to imply that folks were nuts …

I owe you a great deal of thanks, Collin. You have fully cemented for me the importance of this personal resolution: never reply to a comment unworthy of a reply.

222

Hey Skipper 07.09.18 at 11:05 am

[Layman:] …which is as clear a way as any of admitting that what I say is true, that you can find no legitimate Constitutional arguments in the majority decision, despite people having pointed them out to you.

NB: there are a great many constitutional lawyers who criticized Obergefell; I am simply echoing their conclusions, which I happen to find persuasive. That people here have disagreed doesn’t make their comments dicta (nor are mine, for that matter).

The real point here, though, is the one I started with. Trump appointing judges more inclined to originalist analysis is no reason for progressives to panic. It is a “living Constitution” nominee who should give pause to those whose preferences are in the legislative minority.

223

John Holbo 07.09.18 at 2:52 pm

“A great many legal experts think Obergefell to be based upon judicial whims, covered by fig leaves.”

You are moving the goal posts again. It doesn’t help you – at all – that ‘many legal experts’ say what you say. What you need is for there to be no facially credible legal expert who says otherwise. That is, you need it to be the case that there are OBVIOUSLY two kinds of legal experts: namely, those who say Obergefell was not merely wrongly but baselessly decided; and legal experts who are obviously either incompetent or deliberate frauds. Do you think that’s the case? (I understand the urge to take a more moderate position, but no more moderate position will warrant your desired conclusion. So which do you give up?)

“Trump appointing judges more inclined to originalist analysis is no reason for progressives to panic. It is a “living Constitution” nominee who should give pause to those whose preferences are in the legislative minority.”

Well, this assumes the following: living constitution-types will legislate from the bench and originalists won’t. And your defense of THAT major premise runs, in full, like so:

““Legislating from the bench is legislating from the bench; there is no need to characterize it any further.”

You have been presented with arguments why it is unreasonable to view ‘originalists’ as less activist. You are responding by declaring yourself unwilling to consider that possibility. Forgive me if I consider ‘I am right because there is no need to consider whether I am wrong’ as a bit of a fig-leaf, in the defense department. Some people might even call it whimsical.

224

Orange Watch 07.09.18 at 3:00 pm

HS@218:

The justices in the majority believed that the prohibitions against same-sex marriage were an affront to dignity and liberty, they knew they could end that affront, and decided that the Constitution, law, and precedent were insufficient justifications not to do so.

The justices in the majority believed that the prohibitions against handgun ownership were an affront to dignity and liberty, they knew they could end that affront, and decided that the Constitution, law, and precedent were insufficient justifications not to do so.

Back to you and your “originalists”.

The real point here, though, is the one I started with. Trump appointing judges more inclined to originalist analysis is no reason for progressives to panic. It is a “living Constitution” nominee who should give pause to those whose preferences are in the legislative minority.

The real point here, though, is the one that you’ve carefully ducked and dodged. “Originalist” decisions differ from others in rhetorical justification, not methodology nor scope. Self-proclaimed originalists are just as much judicial activists and from-the-bench legislators as the living Constitutionalists you despise; all meaningful difference lies in their politics and language, not their judicial methodology.

225

John Holbo 07.09.18 at 3:00 pm

Why should a reasonable person be aghast at Obergefell discovering a ‘fundamental right’ that isn’t there in black and white, yet be completely reassured upon being told that the thing uncovered in Heller – which also wasn’t there in black and white – was a matter of ‘natural law’. Suppose we simply re-branded the fundamental right result in Obergefell as a ‘natural law’ result. Would that suffice to wipe out the stain of activism?

226

Layman 07.09.18 at 3:17 pm

Me: “ …which is as clear a way as any of admitting that what I say is true, that you can find no legitimate Constitutional arguments in the majority decision, despite people having pointed them out to you.”

Hey Skipper: “…there are a great many constitutional lawyers who criticized Obergefell; I am simply echoing their conclusions, which I happen to find persuasive.”

You seem to be working very hard not to provide a direct response to my allegation, which you criticized as unfair but seem actually to agree with. True or false: You acknowledge no actual legitimately formed judicial arguments in the majority opinion in Obergefell? I get that you don’t agree with the majority opinion, but that’s not the question I’m asking. You could say that they aren’t there; or you could say that they are there but that you aren’t convinced by them. Which is it?

227

NickS 07.09.18 at 8:18 pm

I’m surprised this conversation is still going on, but I’ll take my swing at it. . . .

Not to be too obnoxious, but Hey Skipper’s defense of originalism looks, to me, like a perfect example of Mencken’s description that, “For every complex problem there is an answer that is clear, simple, and wrong.” I feel like it offers an answer which looks easy because it simply denies that the difficult parts of the problem are difficult.

I’ll try to ask my version of the question that other people are asking:

Hey Skipper, you say of criticisms of Obergefell, “I am simply echoing their conclusions, which I happen to find persuasive.” What would you do in a case in which you found multiple arguments persuasive? Presumably you would need to find some way to balance them.

As far as I can tell (and correct me if I’m wrong), to find originalism a decisive doctrine you not only need to think that the meaning of the text should be paramount, but that we can consistently find a meaning in the text which can be shared and agreed upon (it doesn’t provide any clarity if you insist that a given position is clearly supported by the text, and nobody else agrees with your interpretation). I don’t think that’s possible.

Personally, I’m a “living constitutionalist” myself, but I still find appeals to the text of the constitution persuasive, I just happen to believe that, in most interesting Supreme Court cases, there isn’t a clear, decisive answer available from the text, so that becomes one avenue of persuasion among many, not the only factor. Even if I thought that the text would provide a clear direction in 70% of cases that still leaves plenty of room to disagree (and if you and I disagree about which 30% of cases are textually ambiguous we could be arguing about most cases).

Let me stop here and say that you should feel free to tell me that I’m wrong in my assumptions and that you also believe that the meaning of the text is only clear in 70% of cases, and that you are completely open to the idea that in 30% of cases judges will have to find some other criteria on which to make a decision.

But, if you think that it’s not that difficult to read the meaning in the text, and that the vast majority of cases should be decidable without recourse to any other standard of judgement, then I’d ask you about a different case than Obergefell or Heller. What do you think of the recent Washington v. United States? It’s a fairly simple from this perspective in that there’s clearly a controlling text (the treaty in question) and no pesky questions about natural law or individual rights. It’s just a question of what actions are or aren’t mandated to comply with the text.

It also happens to be a rare tie, in that the Supreme Court split 4-4 on the decision, and we don’t know how any of the individual justices voted.

So, which direction would originalism point you in that case?

228

J-D 07.09.18 at 10:02 pm

Hey Skipper

How about being charitable and consider the possibility that I don’t remember to which question you are referring, and repeat it. Copy and paste isn’t that hard.

Reviewing the thread for yourself is even easier, but what the hell, I’ll do your homework for you. Here are the exact words of my question, again:

If (in a given instance) judges do something which can be described as legislating from the bench (which is what Hey Skipper says the majority did in Obergefell), does that count as an honest and competent attempt to do the job of a judge?

Also, for the record, here again are the exact words of your point-blank refusal to answer it:

Legislating from the bench is legislating from the bench; there is no need to characterize it any further.

229

Hey Skipper 07.10.18 at 12:21 am

[John Holbo:] Why should a reasonable person be aghast at Obergefell discovering a ‘fundamental right’ that isn’t there in black and white, yet be completely reassured upon being told that the thing uncovered in Heller – which also wasn’t there in black and white – was a matter of ‘natural law’. Suppose we simply re-branded the fundamental right result in Obergefell as a ‘natural law’ result. Would that suffice to wipe out the stain of activism?

Well, except that it is there in black and white, and there is precedent, and historical bases for the 2A.

But never mind that. Say I agree that Obergefell is as soundly reasoned as Heller, or the other way around.

Fine. That means the 2A is incorporated, right?

230

Another Nick 07.10.18 at 12:28 am

“You have spoken. Time to ditch the Lemon test.”

Why did you leave out my last line? If religious people were being discriminated against, it would be a different story. The Lemon test does a reasonable job of capturing that. Why would a non-originalist think it would always and forever do a reasonable job of capturing that? In any case, Obgerfell passes all prongs.

Religious citizens have no more right to discriminate against gay citizens and refuse them business or their legal rights, than any of us have to discriminate against African American citizens and refuse them business or their legal rights.

What century do you think this is?

231

Hey Skipper 07.10.18 at 12:51 am

[J-D:] Also, for the record, here again are the exact words of your point-blank refusal to answer it:

I can see why I refused to answer it. It is a stupid question.

Judges have, in fact, legislated from the bench. Whether you think Obergefell (or Heller) was an example doesn’t matter to your question, unless, by asking it you are rhetorically asserting judges have not, ever, produced decisions that accorded with their desires and not the Constitution or precedent.

Legislating from the bench isn’t necessarily dishonest or incompetent, but that doesn’t make it a good idea.

232

John Holbo 07.10.18 at 1:59 am

“Say I agree that Obergefell is as soundly reasoned as Heller, or the other way around.

Fine. That means the 2A is incorporated, right?”

Well, it isn’t up to you or me but, yes, it’s incorporated, after “McDonald v. City of Chicago”. And that was pretty much a foregone conclusion after “Heller”, I should think. I confess I haven’t studied “McDonald” but – quick check – it looks like the dissent depends on saying Heller was wrongly decided. That sounds right to me. ‘If “Heller” -> incorporation’ makes better sense than ‘”Heller” & -incorporation.’

But you are still avoiding the main question, Skipper. Why should we agree to your ‘pay no attention to the man behind the curtain!’ stipulation re: “Legislating from the bench is legislating from the bench; there is no need to characterize it any further.”

233

John Holbo 07.10.18 at 2:06 am

“Legislating from the bench isn’t necessarily dishonest or incompetent”

So legislating from the bench can be done honestly and competently? Then what is wrong with it?

234

faustusnotes 07.10.18 at 2:17 am

Hey Skipper seems to think that “Originalism” means ignoring what was written in the 2A (about the “well-regulated militia”) in favour of material that wasn’t written in the 2A, in order to infer that the framers believed possession of a gun was an inherent natural right. So “originalism” means ignoring the constitution as written in order to infer the meaning of the people who wrote it.

These are the same people who apparently considered ordinary Americans so ignorant of their natural rights that they passed a law in congress forcing all able-bodied adults to buy guns. But this doesn’t in any way invalidate the conclusion that they thought gun ownership was a natural right.

Hey Skipper might also have problems dealing with the opinions of Amy Barrett, one of Trump’s shortlist for SCOTUS, who wrote an article about how originalism is incompatible with precedent. But then, this makes sense, since originalism is incompatible with common sense. As, apparently, is Hey Skipper’s view on it.

235

Sebastian H 07.10.18 at 2:56 am

Why are we seeing so many originalist arguments about the 2nd amendment? For a living constitutionalist why not just say “Hey they ignored parts of the text because that’s ok, judges are allowed to change the meaning of the Constitution over time”? When people talk of overruling Roe why not just say “times have changed since 1973 and the Constitution now allows laws like France or Sweden where they ban elective abortions in the 4th or 5th month instead of the 7th and that more than 65% of the population thinks is a good idea”? Why do living constitutionalists act as if the Constitution can only change in liberal directions? So judges drastically changed the Constitution in one way under the Warren Court and in another way now. You can say “I disagree politically with that ruling” but you’ve undercut your ability to say “that ruling is Constitutionally incorrect” when you can’t articulate what ‘constitutional’ means other than “we got 5 Justices to vote for it”.

236

John Holbo 07.10.18 at 3:22 am

“Why do living constitutionalists act as if the Constitution can only change in liberal directions?”

I don’t.

“You can say “I disagree politically with that ruling” but you’ve undercut your ability to say “that ruling is Constitutionally incorrect” when you can’t articulate what ‘constitutional’ means other than “we got 5 Justices to vote for it”.”

You and I have had this argument before, Sebastian. I say it’s a difference of degree, but it adds up to a difference in kind. Playing the game of black letter and precedent and restraint is different than just sitting there in your black robe saying, for all to hear, ‘screw it, I’m voting conservative’.

One issue you and I have argued about before, and I admit there is no demonstrable answer, is which form of rhetoric is more likely to encourage decay into naked partisanship. You argue ‘living constitutionalism’. Because it admits the reality that everyone is pushing for their side. I argue ‘originalism’ because it breeds false consciousness. (If you believe you can’t be a judicial activist – because you have a philosophy that saves you from that: originalism! – you are likely to be MORE activist, not less. You have no self-critical distance, no self-check. The sleep of originalist reason breeds monstrous legislation from the bench.) Putting it another way: I think you favor a ‘noble lie’ argument, in favor of originalism, Sebastian. And I think those sorts of political arrangements are unstable. But it’s not the sort of sociological generalization that admits of proof, admittedly. Possibly all handbaskets lead to hell!

237

Sebastian H 07.10.18 at 3:51 am

I think that professionalism is the best we can hope for. Professional ethos really is a thing. In my version you can have a professional ethos which says something like “we should strive to follow understandable rules of interpretation and when possible defer to the legislature unless it clearly violates the Constitution”. Humans are human so we can all agree that they don’t live up to the ideal world. But at least in my version we understand what they are aiming at even if they can’t do it perfectly.

I don’t understand what you think living constitutionalists ought to be aiming at that is different from what a legislature or administration does. They can’t even try to be professionally restrained because under your definition its just their job to try to advance their political agenda. So why let them overrule the legislature at all?

238

Sebastian H 07.10.18 at 3:53 am

“One issue you and I have argued about before, and I admit there is no demonstrable answer, is which form of rhetoric is more likely to encourage decay into naked partisanship.”

I think I just don’t understand how you think this sentence works. How can “judges are just naked partisans and that’s ok” be less likely to decay into naked partisanship than almost any other theory? That’s already at naked partisanship isn’t it? It’s already at the place you say you don’t want to end up at.

239

Faustusnotes 07.10.18 at 3:56 am

It’s the same reason we always argue against conservatives Sebastian: because they’re wrong ethically or politically AND they’re hypocrites AND they’re full of shit.

For example Trump paid 1.6 million to a playboy bunny to have an abortion buy is going to choose an anti abortion supreme Court judge.

For example “originalists” argue we should follow the text of the constitution but then ignore the text of the 2A to advance the interests of their Russian funded gun loving mates, but then make up further bullshit to ensure nobody can get tanks or form private armies that might challenge their rule.

You’re wrong on the politics, wrong when you implement your own ideas, and hypocritical to boot. That’s why we can argue for a living constitution art he same time as we can argue originalists are wrong.

240

Sebastian H 07.10.18 at 4:11 am

I apologize for the triple post. You say “If you believe you can’t be a judicial activist – because you have a philosophy that saves you from that: originalism! – you are likely to be MORE activist, not less. You have no self-critical distance, no self-check.”

You are implying that the living constitutionalist will be better at self-critical distance and self-check. But from what does the living constitutionalist need self-critical distance? What is the living constitutionalist supposed to self-check against?

241

NickS 07.10.18 at 4:27 am

Sebastian H: “I don’t understand what you think living constitutionalists ought to be aiming at that is different from what a legislature or administration does.”

I haven’t thought about this extensively, but I’ll give you my answer. I think judges should engage in legal reasoning, and make arguments based in some shared understanding of (a) the constitution, (b) accumulated case-law and precedent, and (c) an evolving and shared sense of what it means to be humans living together in civilization. It is in the last two that I see room for constitutional interpretation to grow and shift.

For example, if the supreme court were to decide that it was unconstitutional to keep prisoners in solitary confinement for more than 20 consecutive days or more than 40 days in a year that would (a) be a clear change in constitutional interpretation which was (b) based on the “cruel and unusual” clause and (c) informed by decades of research showing the harms of solitary confinement. In my mind that’s an easy case in which our changing knowledge could lead to changes in the law.

Similarly, I am sympathetic to a judge who says, given their current understanding of human experience, that allowing same sex marriage is required based on the equal protection or due process clause (I recognize that this is less clear cut, but I think it’s a clear argument involving (a), (b), and (c)).

I wouldn’t be okay with a judge saying, for example, that there is a constitutional requirement that employers allow votes on unionization at least once every 8 years (based on freedom of assembly), even though I might support that as a legislative goal, because I don’t see a strong legal argument supporting it (based on the existing understanding of the constitution and case-law).

All of those examples are off the top of my head, and I’m sure you could quibble with any of them, but I would definitely say that judges should be aiming at something other than the goals of a legislature.

242

John Holbo 07.10.18 at 4:30 am

“I think I just don’t understand how you think this sentence works.”

The sentence sucks, admittedly. But it’s the thought that counts. You are mistaking the top of the slippery slope for the bottom. “judges are just naked partisans and that’s ok” is the bottom. The top is what we’ve got. If, at his confirmation hearing, Kavanaugh just says ‘screw it, I’m voting conservative on every issue,’ then we are at the bottom.

243

John Holbo 07.10.18 at 4:37 am

“But from what does the living constitutionalist need self-critical distance? What is the living constitutionalist supposed to self-check against?”

Extremism. When living constitutionalists do something extreme, they don’t conceal what is going on. That allows for more of the feedback mechanism that, I know, you prize. There is no feedback when it comes to judicial activism on the ‘originalist’ side because there is an absolute taboo against admitting that it’s going on at all. So there’s no way to regulate it – moderate it – internally to the ‘originalist’ view. It can only be countered by the other side. Living constitutionalists can, to some degree, self-moderate.

I agree it’s a tendentious sociological thesis.

244

Sebastian H 07.10.18 at 5:10 am

“Extremism. When living constitutionalists do something extreme, they don’t conceal what is going on. That allows for more of the feedback mechanism that, I know, you prize. There is no feedback when it comes to judicial activism on the ‘originalist’ side because there is an absolute taboo against admitting that it’s going on at all.”

I don’t know what you mean by extremism from living constitutionalists. According them nothing they do is ever extremist, it is just a natural extension of the penumbras and emmanations of well accepted Constitutional principles applied to a changing society. Is there set of cases where you think that living constitutionalists have been extremist out in the open and didn’t conceal what was going on? Do you have in mind some particular living constitutionalist judge whom you would say is openly extremist?

“There is no feedback when it comes to judicial activism on the ‘originalist’ side because there is an absolute taboo against admitting that it’s going on at all.”

The living constitutionalists never admit that they are voting for their side either. They always pretend that they are modestly reflecting a change in the way society thinks about things even when they are blatantly going against what huge majorities think.

“So there’s no way to regulate it – moderate it – internally to the ‘originalist’ view.” Living constitutionalists have exactly the same problem. Except for them you can’t even call them hypocrites when they fail to do what the law tells them to do, because their method is much less stringent about having the law tell them to do things. You can’t even tell them that they are failing to live up to their method, because their method doesn’t restrict them even as much as the textualist. How can you even tell when a living constituionalist has gone ‘too far’ under their methods?

245

John Holbo 07.10.18 at 5:32 am

I feel that the Warren Court was pretty honest about what they were doing. They felt that the country needed -and was ready for -certain changes. They didn’t pretend the framer’s had foresightedly given them the thumbs up on Brown v. Board, for instance. But, to be honest, I could be wrong. Do you feel that the Warren Court tried to pretend they were just calling balls and strikes when they pretty obviously were sympathetic to civil rights claims on moral grounds, and seeking legal means to assist in what they felt was a just cause?

Obviously there are problems with nine unelected justices taking the law into their own hands, but it’s better if they more or less admit it. If they don’t admit it, they are likely to run to even greater extremes. You say that originalists are at least bound by the text. But are they, more than living constitutionalist? Color me skeptical.

246

John Holbo 07.10.18 at 5:37 am

“The living constitutionalists never admit that they are voting for their side either. They always pretend that they are modestly reflecting a change in the way society thinks about things even when they are blatantly going against what huge majorities think.”

Which cases do you have in mind? Brown? Roe? Loving? Griswold? It’s been a while since I read those, I admit. What do you think is – not the most activist, but the most dishonestly activist decision, that won’t admit what it is really doing? Honest question and not a trap.

247

Layman 07.10.18 at 11:58 am

Sebastian H: “Why do living constitutionalists act as if the Constitution can only change in liberal directions?”

Oh, if only there were a post on Crooked Timber which expressed dismay at recent Court decisions, decisions which can surely be described as ‘conservative living constitutionalism’. What a comment thread that would be. Sigh.

248

Layman 07.10.18 at 12:08 pm

Sebastian H: ‘You can say “I disagree politically with that ruling” but you’ve undercut your ability to say “that ruling is Constitutionally incorrect” when you can’t articulate what ‘constitutional’ means other than “we got 5 Justices to vote for it”.’

Yet there are no people who argue that the text of the Constitution is irrelevant to the question of what is Constitutional. Even the people you call ‘living constitutionalists’ nod to the text of the Constitution. So it’s not really the case that they can’t articulate what ‘constitutional’ means, is it? You might not agree with that articulation, but that doesn’t mean it isn’t right there in plain language for you to read.

JH: “They didn’t pretend the framer’s had foresightedly given them the thumbs up on Brown v. Board, for instance.”

It’s hard to take seriously the idea that Brown v Board is an exercise in living constitutionalism without any foundation in the actual text. The fourteenth amendment is actually there, and it was actually enacted explicitly for the purpose of prohibiting state discrimination against African Americans. Sure the Court was more willing than were elected governments to take it seriously, but isn’t that what the Court is for?

249

Orange Watch 07.10.18 at 12:25 pm

Seb:

If you admit there is such a thing as professionalism, and that it should be a guiding force in this matter, it’s a bit disingenuous to suggest there’s nothing that a living constitutionalist can be an extremist with regards to.

Textualists can use their philosophy as a bulwark against accusations of lack of professionalism, and said philosophy dictates that following it cannot be extremist. I’m not seeing how this should reassure us that they will be more inclined to critical self-reflection and restraint unless we assume that by stating they must be restrained they necessarily will be restrained. Originalist conduct in practice very quickly gives lie to that assumption.

250

faustusnotes 07.10.18 at 12:43 pm

Amy Barrett, one of Trump’s shortlist, an “originalist” and federalist society member, admitted in an article that under a properly originalist interpretation of the constitution Brown vs. Board of Education would be invalid.

As an aside, does anyone remember when Ted Cruz’s eligibility for president was still relevant? Commentators at the time observed that if it went to the Supreme Court he would be dependent on a “living constitution” interpretation of his situation, since a genuine “originalist” would rule him ineligible. Do Hey Skipper or Sebastian want to come on here and tell us with a straight face that the current court would rule him ineligible? Haha. Show us your naivete boys!

251

John Holbo 07.10.18 at 3:00 pm

“Amy Barrett, one of Trump’s shortlist, an “originalist” and federalist society member, admitted in an article that under a properly originalist interpretation of the constitution Brown vs. Board of Education would be invalid.”

That’s an easy one! I think even Scalia admitted that one (then he played it off like the other side was being stupid bringing it up, as if contradictions in originalism are a problem for the view.)

“It’s hard to take seriously the idea that Brown v Board is an exercise in living constitutionalism without any foundation in the actual text. “

This is the problem of falling into the other side’s rhetorical trap – the false dichotomy. No one ever decides without any foundation in the text. And Brown has good textual support, in a sense. On the other hand, it obviously isn’t an originalist answer. Yes, the 14th plausibly implies this, but, no, it wasn’t intended to, and no, no one dreamed that it did at the time. Unintended implications, in light of value shifts and social shifts, is a big problem for originalists – whether of the natural law persuasion or otherwise.

252

John Holbo 07.10.18 at 3:01 pm

Here’s some stuff about Scalia on Brown.

https://www.uclalawreview.org/a-critique-of-justice-antonin-scalia%E2%80%99s-originalist-defense-of-brown-v-board-of-education/

“This question is posed to Justice Scalia “so often in his public appearances that he will say things like ‘Waving the bloody shirt of Brown again, eh?’”

253

John Holbo 07.10.18 at 3:15 pm

I can underscore my point against Sebastian above by saying: if the current conservative majority supported its decisions by being fairly honest about its values, I would be more ok with it. If the actual values behind the conservative decisions were articulated even semi-openly, it would enrage the other side to such an extent, and call the basic integrity of the court into question to such an extent, that there would, in effect, be a self-check on these sorts of decisions. ‘Originalism’ allows for a fig leaf that covers stuff, the sight of which would horrify too many people, if exposed. I favor more openness about what is really going on. The ‘noble lie’ approach is unstable.

254

NickS 07.10.18 at 4:44 pm

Sebastian H: “I don’t understand what you think living constitutionalists ought to be aiming at that is different from what a legislature or administration does. They can’t even try to be professionally restrained because under your definition its just their job to try to advance their political agenda. So why let them overrule the legislature at all?”

The last time you and argued about constitutional courts I recommended Alec Stone’s Governing With Judges. It’s focused on European constitutional courts and, for that reason, it may not apply directly to the US Supreme Court (even mutatis mutandis), but it does offer a book-length answer to precisely the question that you are asking here (“what distinguishes the judiciary from the legislature once one has admitted overlap in their functions?”)

Here are two excepts. They do not directly answer your question, but they do lay out the ways in which the book proceeds in constructing an answer. For example, here is the opening to his chapter of conclusions:

Chapters 2-5 show that legislating, litigating, and constitutional adjudication are — increasingly — mutually constitutive processes. Under certain conditions, each establishes the context for the others. The empirical findings lead us to deny the utility of traditional separation of powers schemes. Such schemes do more to obscure than illuminate how laws are made, how judges take decisions, and how the constitution evolves.

Separation of powers ideologies, of course, are less suited to the accurate description of how the world of government actually works than they are to putting in order that (potentially chaotic) world. Moreover, they ground arguments designed to secure the legitimacy of public authority, including the judicial. Nevertheless, I have argued in this chapter that tradition, Continental separation of powers notions provide an inherently weak basis for discussions about the political legitimacy of constitutional review. I conclude by sketching three different ways to conceptualize the legitimacy of the constitutional judge, each of which admits (at least partly) the policy-making consequences of constitutional review.

And here are a couple of introductory paragraphs from the chapter on legislating (which, among other examples, looks at a case study in which the Spanish constitutional court struck down a law which would have decriminalized abortion. An interesting inverse of the US case).

I proceed from the view that constitutional courts ought to be conceptualized as specialized legislative organs, and constitutional review ought to be understood as one stage in the elaboration of statutes. Adopting this perspective facilitates observing and evaluating the complex relationship between constitutional adjudication and law-making. After examining how often, and with what techniques, constitutional courts intervene in legislative processes, I turn to the judicialization of parliamentary governance, focusing on the capacity of constitutional rule-making to structure ongoing legislative behavior. Case studies illustrate my main points.

Accepting the ‘constitutional court as legislative chamber’ formulation does not entail ignoring obvious institutional distinctions between parliaments and constitutional courts. Two such distinctions deserve emphasis at this point, because we can expect them to condition behaviors relevant to policy-making. First, government ministers and parliamentarians are relatively self-activating law-makers, in that they are capable of deciding when and how to legislate, on their own, within limits imposed by the constitution. Until a case law relevant to a given legal domain has developed, constitutional judges act in a context that has been constructed by others (e.g. elected politicians and ordinary judges). Second, constitutional judges must, by law, give legal reasons for their decisions in writing. Elected politicians, in contrast, can take decisions on the basis of their own partisan interest, or ideology, without going further. They presume, after all, that they were elected to do so.

One purpose of this chapter is to demonstrate the extent to which the judicialization of the legislative process can blur these distinctions, even to the point of irrelevance. As constitutional rule-making proceeds in any given policy domain, governments and parliaments may find themselves operating in contexts that have been meaningfully constructed by constitutional judges. Elected officials may find that giving constitutional reasons for their behavior cannot be avoided, and that surviving policy interests can only be effectively pursued in the language of the constitutional law. Judicialization produces constitutional constraints on law-makers. But, as important, it engenders new modes of legislative discourse and practice.

255

Sebastian H 07.10.18 at 9:45 pm

John “‘Originalism’ allows for a fig leaf that covers stuff, the sight of which would horrify too many people, if exposed. I favor more openness about what is really going on. The ‘noble lie’ approach is unstable.”

On some level I suppose I agree with you, in that hiding the ball during the Burger Court led to an enormous counter-reaction. I don’t share your suggestion that living constitutionilists are particularly open about what is going on. They nearly always pretend to be meekly going along with what the nation really thinks.

You ask which case seems the most dishonestly activist. I’d say the most honestly activist case is probably Brown v. Board of education. It openly said “this isn’t the application of the 14th amendment that was expected at the time of writing, but it is fully in line with actual words of the amendment”. I’m open in theory to the idea that expected application doesn’t hold the force of at-the-time-understood-meaning-of-the-phrases, so while it was openly activist, it wasn’t a naked display of judicial power.

The most dishonestly activist major case is probably Roe v. Wade. There the majority blatantly overrules the very common law that it grounds itself in that idea that abortion law distinctions make moral sense at around the time of quickening (16-20 weeks, an opinion shared by such horrific countries as France and Sweden and about 65-70% of the population of the US even now). It overruled abortion laws in almost every state of the union. But it hides behind the fig leaf of discovering a new fundamental right to have an abortion that had apparently always existed in the right to privacy. Even accepting that the right to privacy includes a right to abortion (something which apparently didn’t occur to anyone before despite their long line of privacy cases), no care is taken to explain how a fundamental right which apparently allowed regulation against abortion at around the time of quickening through early US history got transformed into a right that didn’t allow serious regulation until much later. Even their rather strained theory that the right to abortion was part of a fundamental right would place it in the “so rooted in the traditions and conscience of our people as to be ranked as fundamental” category. That would argue for restoring the older version of the right to abortion before quickening. If they had ruled THAT was the constitutional right (in the sense of cannot be overruled without amendment) I would say that they were on much firmer ground. (Also in terms of legitimacy, they would be agreeing with almost 80% of the population) But instead they didn’t allow the states to worry about fetal health until the six month (a line that about 25-30% of population agrees with) based on, ummmmm, well that isn’t clear.

That line of cases also highlights a favorite tool of living constitutionalists which is to have an initial ruling that claims to be deeply grounded in one thing, and then have a follow up ruling that uncomplicatedly ignores all that and extends the ruling somewhere else using the fig leaf of logical extension. The classic case of that is Griswold going into Eisenstadt. (To be clear I think that both cases can probably get a well reasoned judicial result from much more textualist readings, my point is that living constitutionalists don’t feel constrained to bother with that). Griswold goes ON and ON and ON about how important the bedrock idea of marriage as a well-existing-before-the-Constitution institution is important to their ruling. Seriously, read it!

“To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever.”

“Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family — a relation as old and as fundamental as our entire civilization — surely does not show that the Government was meant to have the power to do so. “

“Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . , but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which, always and in every age, it has fostered and protected. It is one thing when the State exerts its power either to forbid extramarital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.”

“In sum, I believe that the right of privacy in the marital relation is fundamental and basic — a personal right “retained by the people” within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States. I agree with the Court that petitioners’ convictions must therefore be reversed.”

“These decisions affirm that there is a “realm of family life which the state cannot enter” without substantial justification. [citation omitted] Surely the right invoked in this case, to be free of regulation of the intimacies of the marriage relationship,
come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.”

Eisenstadt waves away the entire martial underpinning of Griswold with “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Now I’m open to the idea that a good tour of privacy understandings could get me to agree with that statement. But the arch-living constitutionalist (Brennan) just pretends that this is an uncomplicated and tiny extension of a case that was allegedly deeply and repeatedly rooted in the idea of traditions of marriage going back 1,000s of years. It would be as if you had a proof of A proves B, C is anti-A, therefore B proves C. That style of reasoning doesn’t seem more like the noble lie you’re worried about rather than openness about what is going on.

256

Layman 07.10.18 at 10:31 pm

Sebastian H: “…an opinion shared by such horrific countries as France and Sweden…”

Can I say how sick I am of anti-abortion people who like to hold up only some parts of French or Swedish law on abortion while pretending the others don’t exist? Put another way: Are you, Sebastian, willing to accept the entirety of French law on abortion, in its current state, as the legal regime in the United States? Yes or no, please. I’ll wait.

(This is a digression, I know, but it is one Sebastian himself invited unnecessarily.)

257

M Caswell 07.10.18 at 10:37 pm

Harlan’s Plessy dissent > Brown v. Board of Ed majority

258

Collin Street 07.11.18 at 1:31 am

The point is, Sebastian, everybody thinks their conclusions are reasonable-under-the-circumstances. “These are my conclusions” and “this is what I think is most reasonable under the circumstances” are exactly equivalent.

So if we want to avoid problems of people proposing objectively-unreasonable things, we need to engineer they use so that it reflects perspectives outside their own. Sola scriptura doesn’t do this, because the text has no agency and can’t tell you you’re full of shit. Nor does introspection, same underlying problem.

However! Living constitutionalism inherently involves talking to and listening to other people, it’s much less likely to fall into this sort of abstracted-from-reality misunderstanding.
Different processes mean different errors and different error distributions. “Tankers made of steel and of cardboard will leak oil outside the environment if the front falls off”, yes, but…

By the time people start announcing their conclusions it’s too late to fix errors, basically. Robust problem-solving approaches are needed well before you start to talk about what you think.

259

Sebastian H 07.11.18 at 2:02 am

“Are you, Sebastian, willing to accept the entirety of French law on abortion, in its current state, as the legal regime in the United States? Yes or no, please. I’ll wait.”

I’ve studied it extensively. I would absolutely 100% say yes. Including the state provision in the first trimester, and the almost impossibility of elective abortions after that. You didn’t even have to wait long. ;) Do you have a substantive point now that you have your answer?

260

Sebastian H 07.11.18 at 2:44 am

“However! Living constitutionalism inherently involves talking to and listening to other people, it’s much less likely to fall into this sort of abstracted-from-reality misunderstanding.”

I’m not sure where you get the ‘inherently’ there, especially about the listening to other people part. I mean I can see that it listens to its own clique, but so does everyone. What about living constitutionalism in practice forces it to listen to disagreeing sides? Is there some particular evidence that the Burger or Warren courts ‘listened to others’? Because from where I sit it looks suspiciously like they voted their personal preferences and then claimed to perceive a societal change in favor of what they wanted no matter what the actual evidence showed (see especially abortion and the death penalty) And to be clear, I don’t think that the government should be trusted with the death penalty, but that isn’t the same as thinking it is unconstitutional.

261

Faustusnotes 07.11.18 at 3:06 am

But Sebastian don’t originalists think state funding of any healthcare is unconstitutional?

262

Sebastian H 07.11.18 at 4:30 am

Article I, section 8 of the U. S. Constitution grants Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States.”

263

faustusnotes 07.11.18 at 7:07 am

And yet, Sebastian, Scalia consistently opposed the ACA on the basis of that very clause, and ended up saying that Obamcare should be renamed “SCOTUSCare” because the Supreme Court kept protecting the law even though it breached the commerce clause.

Now, you seem to think that Originalists are always right but in this case 2 originalists opposed the other three, and in this case the majority agreed with you. So which of the originalists are incompetent and dishonest, legislating from the bench? The 2 or the 3?

264

J-D 07.11.18 at 9:33 am

After declaring the outcome of one case [Chief Justice John] Marshall turned to him [Justice Joseph Story] and said, “Now, Story, that is the law; you find the precedents for it.”

http://www.historynet.com/the-9-greatest-supreme-court-justices.htm

265

John Holbo 07.11.18 at 1:41 pm

No time for responses by me today. Traveling. Play nice!

266

Orange Watch 07.11.18 at 2:19 pm

Seb@255:

That line of cases also highlights a favorite tool of living constitutionalists which is to have an initial ruling that claims to be deeply grounded in one thing, and then have a follow up ruling that uncomplicatedly ignores all that and extends the ruling somewhere else using the fig leaf of logical extension.

I’m fully expecting Worman v. Healey to make it to SCOTUS, and provide a perfect originalist example of exactly this. We shall see, obvs.

“To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever.”

You quoted this, do you disagree with what is said here? And whether you do or not, how do you reconcile the typical “textualist” rejection of the 9th in toto with, well, textualism? To say nothing of the “new originalist” claim to be guided by how a well-informed contemporaneous citizen would have understood the plain text of the 9th. When “originalists” are baldly stating that entire amendments are redundant decorations, it becomes very difficult to understand how they are exercising any sort of restraint.

267

Sebastian H 07.11.18 at 2:48 pm

There is a difference between thinking that textalism is correct and thinking that textualists and originalists can get things wrong. Just as there is a difference between trying to apply the text of a Constitution (and sometimes failing) and having arguments which undercut the ethos of even trying.

I’m also still interested in seeing where you are going with the France thing. I hope you didn’t forget about it…

268

NickS 07.11.18 at 3:32 pm

“Now, you seem to think that Originalists are always right . . .”

To be fair, I don’t think Sebastian has said that (or would say that). But I would ask the same question of Sebastian that I asked of Hey Skipper — roughly speaking what percentage of time do you think an originalist approach leads to a clear answer / conclusion (and, incidentially, what do you think an originalist would say about Washington v. United States)?

When considering originalism one might say that if you are somebody who generally agrees with the general leanings of judges who believe in originalism then one might not be concerned about the fact that there is some number of cases for which originalism doesn’t lead to clear conclusion; those cases will just have to be decided using some other method.

But if one disagrees with the general leanings of judges who believe in originalism, and one is being asked to accept them on the basis of the idea that there are benefits to the legal doctrine of originalim, then two questions become much more important: how great are the benefits of originalsm, and how often do they they apply? It’s a much harder pill to swallow if it means knowing that somebody you disagree with is going to say, for some percentage of cases, “oh, well, originalism doesn’t really apply in this case so I’ll just do something else.”

This goes both ways. To some extent this is the mirror image of (one element of) the argument that Sebastian is making about “living constitutionalism.” If one agrees with the judges’ general approach then it isn’t too concerning that the doctrine isn’t applied with perfect consistency — it is inevitable for any philosophy that there will be strengths and weaknesses of both the philosophy and the application, and it will be possible to identify examples which show it to good effect or bad — but if one disagrees the moments of hand-waving are particularly galling.

But I would be very surprised if Sebastian argued that originalists didn’t engage in any hand-waving, he just argues (hopes?) that as a doctrine it reduces the amount of hand-waving (a point which is under contention).

269

Patrick 07.11.18 at 7:27 pm

Thomas, dissenting in Kelo.
In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.

Thomas, also dissenting in Kelo.
If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power–for public or private uses–then it would be surplusage. See ante, at 3—4 (O’Connor, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect”); Myers v. United States, 272 U.S. 52, 151 (1926).

Leaving aside the other errors in Thomas’ reasoning (he bizarrely goes on to define “use” with a period dictionary as “to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” and then goes on to insist that this doesn’t include obtaining a property and transferring it to a private entity even though selling something or transferring it in service of a goal is “making use of” a thing) , its worth noting that real world originalism isn’t really “originalism.” There’s no reason whatsoever that a true originalist would care in the slightest about that quote and citation. Nothing in originalism whatsoever is incompatible with a constitutional clause being “intended” to be without effect, and much of it necessitates that the possibility is at least on the table. Drafters of laws, and ratifiers of laws, and voters participating in public discussion regarding laws both before and after their passage, are all capable of writing or interpreting a clause as being without effect, and making “intent” forming decisions based upon that.

Originalism with an overlay of formalism is just a sort of fancy, traditional legal dance. In a way its as valid as any other fanciful legal theory, but its claim to unique warrant is weak.

Originalism also leads to the hilarious idea that one can “fix” the Constitution by amending it to say exactly the same words but with a different time stamp, but we’re not supposed to talk about that- its kind of an embarrassment.

270

LFC 07.11.18 at 7:46 pm

Sebastian contends that the Court’s insulation — the lack of feedback mechanisms, as he terms it — is a particular problem w/r/t living constitutionalists because they have (supposedly) nothing beyond personal inclinations and their reading of the country’s evolving norms to constrain their decisions, unlike originalists, who are constrained by various strict canons of interpretation. So, according to Sebastian, living constitutionalists are like legislators except they lack the constraining feedback mechanism of having to worry about getting re-elected every so often. And basically, therefore, they can do pretty much whatever they want, untethered from anything except personal ideology and worldview.

This overlooks that originalists also have to consult their own ideology and worldview, because the canons of originalism, which don’t always apply to begin with, are usually indeterminate; they often don’t yield a unique outcome. (And if they do, it may be an outcome that involves tossing out a long and well-established line of precedent, which it seems that few originalist judges, w/ the exception of C. Thomas, are actually that eager to do.) And one could further argue that the lack of feedback mechanisms, which Sebastian thinks is a “bug” especially for living constitutionalists, is more of a “feature,” allowing in the admittedly rare case a judge like Souter to change his views somewhat once on the bench without having to worry about whether his constituents will decide to toss him out at the next election.

Akhil Amar, in his NYT op-ed column supporting his former student Kavanaugh, implied without saying it explicitly that Kavanaugh is someone who might take advantage of the Court’s insulation and lack of external feedback mechanisms to change once on the bench. Kavanaugh “reads and learns,” Amar wrote (as opposed to Scalia, who read simply to confirm what he already thought). Now, I *strongly* suspect that Amar is wrong about Kavanaugh (and biased because Kavanaugh was a student of his), but istm Amar would not have been able to make the implicit argument (or, at least, not so readily) if the Court were not a relatively insulated institution.

271

Sebastian H 07.11.18 at 9:58 pm

Patrick it’s weird that you’re quoting Thomas as ridiculous when he’s making an excellent point. If eminent domain was to be used for anything, including seizing private property just to give it over to some other private owner, they didn’t need a public use clause in there.

You’re attacking formalism on grounds where it is actually pretty strong.

272

Hey Skipper 07.12.18 at 12:12 am

[Nick S:] But I would ask the same question of Sebastian that I asked of Hey Skipper — roughly speaking what percentage of time do you think an originalist approach leads to a clear answer / conclusion …

Is “I dunno” an acceptable answer?

I think an originalist approach can distinguish opinions that have basis in text and precedent from those that don’t (Kagan’s dissent in Hawaii v. Trump being a good example of the latter).

However, no doubt originalism can lead to completely conflicting opinions without any clear tie-breaker in sight. Heller is a good example. Clearly, there is some basis for deciding arms are a collective right. I think that requires deprecating a great many things (philosophical bases; assuming the operative phrase of the 2A means nothing without government approval when there are so many armed government agencies).

Whether I am right or not is beside the point. Without making the attempt — which is what “living Constitution” means — then the Constitution, rather than acting as a limit on government, simply becomes an anachronism.

273

Faustusnotes 07.12.18 at 12:46 am

So Sebastian, originalists are sometimes wrong because they genuinely make mistakes but living constitutionalists are wrong because they are incompetent, dishonest or legislating from the bench?

Think about that a little will you?

274

Patrick 07.12.18 at 1:16 am

Sebastian- First, I’m not attacking formalism. Unless you consider “it doesn’t yield results compatible with the form of legal legitimacy Thomas’ originalism requires” to be an attack, but, I don’t consider that an attack on the formalism half of that conundrum.

Thomas is inferring original intent via a formalist rule and textual interpretation. If that were valid the entire history of original intent jurisprudence would need burned to the ground and its ashes salted. Every judge or legal commentator who ever said “Sure, that passage may be broadly worded, but if you went back in time no one would interpret it as covering THAT!” would be a moron. Because if they didn’t mean it to be broad, they wouldn’t have written broadly, right?

One of the more common intellectual sins of legal scholarship is presuming that if formalism is apolitical, it can be utilized by any other legal theory, and its results dressed up in that theory’s clothes. It cannot. Formalism is a tool for yielding a particular type of result, and those results do not necessarily provide answers that are justifiable under the sorts of legal legitimacy to which other legal theories pretend. If your goal is to obtain an “original intent” that derives its legitimacy from history, you cannot issue a prima facie declaration that a wide variety of possible interpretations must be rejected because they don’t meet formalist standards. Real life people in history regularly fail to meet formalist standards, so that may mean you preclude the answer you were actually looking for.

That’s why original intent jurisprudence is a sham. It is as you described- a bunch of people sitting around, applying formalist reasoning when its convenient, and declaring that they’ve discovered an “original intent” from their armchair with no real regard as to whether their discovery has any of the forms of legitimacy they said original intent was supposed to give us. Its just formalism, but more crap.

275

Sebastian H 07.12.18 at 3:34 am

Faustusnotes I’m a little reluctant to engage with you any more as you seem to be exhibiting signs of trolling. (See for example your sudden lack of follow up on whatever your French point was when I promptly answered your question). But in case I’m wrong, you say “So Sebastian, originalists are sometimes wrong because they genuinely make mistakes but living constitutionalists are wrong because they are incompetent, dishonest or legislating from the bench?”

No. I’m saying that I understand how to argue that originalists are wrong because I can see what they are talking about. So it is easier to argue that they are ‘betraying their principles’ because they have articulated principles. How do I know when a living constitutionalist is wrong? How do I know when I should suspect them of motivated reasoning? They can always, and often do, assert a changing societal understanding even if the polls aren’t anywhere close to supporting it. What kind of case would cause them to say something like “society has changed in a direction I don’t agree with THEREFORE I must now say the following thing which used to be constitutionally protected no longer is…”? Is that something that a living constitutionalist has ever said?

Patrick, I’m sorry. I really don’t understand what you’re trying to say there. Is Thomas wrong to notice that taking by eminent domain for the purpose of giving it to another private party is not “public use”?

276

Hey Skipper 07.12.18 at 11:36 am

[Faustusnotes:] Hey Skipper seems to think that “Originalism” means ignoring what was written in the 2A (about the “well-regulated militia”) in favour of material that wasn’t written in the 2A, in order to infer that the framers believed possession of a gun was an inherent natural right. So “originalism” means ignoring the constitution as written in order to infer the meaning of the people who wrote it.

No. I’m asserting it is impossible to understand the 2A, or the 1A, for that matter, without acknowledging that there is a reason for them being in the Constitution in the first place: it was a core belief of everyone involved in writing the Constitution that people, by virtue of being human, inherently possess certain rights.

Consequently, the right to meaningful self defense is just as inherent as the rights to speech and religion, and is no more a positive right than they are. Adding a particular justification doesn’t change the underlying reason at all, just as neglecting to mention the underlying reason for the 1A doesn’t mean there isn’t one; rather, it means there was no need to restate the obvious.

And there is another way of using originalism to look at it. Assume the authors of the Constitution were presented with a hypothetical: the federal and state governments have many armed non-military agencies among the citizens. How does that affect the citizens’ right to keep and bear their own arms?

277

Collin Street 07.12.18 at 11:52 am

How do I know when a living constitutionalist is wrong?

You… you don’t need to?

We’re a society made up of different people. With different skills and knowledges, expertise; any individual person can have any number of areas they don’t understand and it’ll still work. I don’t know how my liver works, to be honest I can’t even say I know what it does, but that’s OK, there are people who carry that knowledge for me. I can ignore it more-or-less entirely and focus my talents on other things.

I mean, pegging yourself as the limits of the comprehensible, or the acceptable… is it narcissism? or trust issues? Either way I’m sure you’ll acknowledge that much of society is run by people with knowledge you — or I — cannot hope to share. What’s with this issue that you find it impossible to trust the judgement of the better-informed?

278

Patrick Hickey 07.12.18 at 12:21 pm

Sebastian- I know you don’t. I don’t care about Thomas’ conclusion. I care about his reasoning. His reasoning is terrible.

To start, he defines “use” as “make use of” but if that’s the case then “taking” public land in order to “make use of” it by distributing it to someone else in order to satisfy a government purpose is “public use.” The idea that there’s an unwritten clause in the Constitution that says that the public use must happen on an ongoing basis over time is just a lie.

But that’s just regular being-bad-at-law-and-ignoring-an-inconvenient-interpretation-in-hopes-no-one-will-notice stuff.

Lets go to the bigger part.

Lets say that you want to determine the original intent of a grocery list. Its scrawled without lines breaks or bullet points- its just a list of words. At one point the list of words includes “aubergine, eggplant.”

Option 1: Declare that under formalism the word “eggplant” would not have been included if it were intended to be redundant with the word “aubergine.” Therefore the list maker wants you to purchase at least two vegetables, one to satisfy both list entries.

Option 2: Engage in a factual investigation of whether the person who wrote this list wanted two items here or one, and investigate how the person to whom the list was originally given interpreted this instruction.

If you do Option 1, you are ruling out part of the set of historically plausible realities with respect to the original intent of the list. But if your interpretive schema derives its legitimacy from its claims that it searches among history for its answers, then you’ve betrayed its principles.

And that’s the reality of originalism. It talks up its legitimacy in terms of reference to the empirical facts of history. But what it actually does is apply formalist legal reasoning all the time, and CONSTRUCTS an interpretation which it then ATTRIBUTES to history.

And that’s a sham.

Some judges admit this and try to square the circle by saying that they’re crafting a textual interpretation that is what a good judge would have crafted if that judge were deciding the case at the time of the law’s passage. That’s effectively Scalia’s position.

But why that’s desirable is much harder to articulate.

279

LFC 07.12.18 at 12:29 pm

The changes in society that might be relevant for living constitutionalism are not always changes in attitudes that can be measured by opinion polls. Sometimes the relevant changes are structural. For example the role of public education in U.S. society changed in relevant ways between 1868 and 1954. Less to do with attitudes than w underlying facts about how the society and economy operated.

280

Orange Watch 07.12.18 at 1:40 pm

Seb@267:

There is a difference between thinking that textalism is correct and thinking that textualists and originalists can get things wrong. Just as there is a difference between trying to apply the text of a Constitution (and sometimes failing) and having arguments which undercut the ethos of even trying.

When the predominant textualist methodology holds up decisions like Heller as the model of what good textualist jurisprudence looks like, your above argument begins to sound like an admonishment that we mustn’t criticize Communism, because regardless of its repeated excesses in practice, in theory it leads to justice and equality.

I will remind you that Heller takes the text of the 2A and draws the following conclusion: “self-defense had little to do with the right’s codification; it was the central component of the right itself.” These same textualists wax long about straightjackets of wording that cannot be ignored when it suits them, and are likewise in those circumstances held up as models of what originalism is and originalists should aspire to. You are arguing that a methodology – which routinely betrays its core principles in favor of finding ideologically favorable conclusions and refuses to engage in introspection, while instructing new adherents of the methodology emulate these behaviors – must be evaluated strictly on how it has never been consistently or even predominantly practiced, and with the assumption that its practitioners will be superhuman. Again, the parallels to those extolling the virtues of Communism on paper are unavoidable.

281

J-D 07.13.18 at 1:01 am

Hey Skipper

When Justice Kagan gave her dissenting opinion in Hawaii v Trump, do you think she was doing her job as a judge? If yes, what’s the problem? If no, what do you think should be done about it?

282

LFC 07.13.18 at 3:52 am

@ J-D

I think Hey Skipper actually means to refer to Sotomayor’s dissent in the travel-ban case. Kagan, if I recall correctly, simply signed on to Breyer’s dissent, didn’t write one of her own.

Skipper clearly thinks Sotomayor’s dissent is groundless. I haven’t read the opinions in the case carefully so I’m not going to comment on the merits of them. All of the current Justices do their jobs in the sense that they, for the most part, put their views in the form which one expects: they cite cases, they sound like lawyers, etc., and I don’t think any of them can be accused of not believing what they write. In that sense, they are all doing their jobs in the kind of minimum baseline way. And at some level, I suppose that’s all one can ask. None of the Justices is dishonest in a blatant sense at any rate and none, so far as I can tell, is incompetent in the sense of being unable to fulfill the basic requirements of the position.

OTOH, anyone can still criticize an opinion as being deficient in reasoning, grounding, craftsmanship, philosophical basis, methodology, or whatever. I’m sure I would criticize some opinions on that basis — it’s just that I think Skipper and I would probably choose to criticize different ones.

283

Faustusnotes 07.13.18 at 4:51 am

Sebastian, I didn’t raise the French point. So I don’t think I can be trolling you with it. As for your idea that you can’t tell when a living constitutionalist is wrong, allow me to use my favourite suicidal tendencies quote:”just because you don’t understand it don’t mean it don’t make no sense.”

And again, you do the same thing: when an originalist is wrong it’s because they made a good faith attempt at their ideology and failed; when a living constitutionalist is wrong they’re engaging in motivated thinking. This is obviously bad faith arguing. But worse still it’s obviously facile. The current leading constitutionalist in the USA, who will pick a constitutionalist judge, paid a playboy bunny for an abortion. Do you think he got to that point through a good faith attempt to live by his anti abortion principles? No he didn’t but he will pick a judge who is guaranteed to use motivated reasoning to ensure no-one else can get an abortion. A judge who was 200k in debt last year and now mysteriously isn’t, who was nominated by a man who is obviously being g blackmailed. Yet you want us to believe this judge will make a good faith attempt to follow a set of principles? Did you come down with the last shower?

284

Layman 07.13.18 at 10:46 am

Sebastian H: “See for example your sudden lack of follow up on whatever your French point was when I promptly answered your question.”

First, you’re confusing people, it was me who asked. Second, I’ve tried to respond twice and both times my comments have basically vanished. If this one gets through, I’ll try again.

285

Layman 07.13.18 at 6:59 pm

Sebastian H: “Do you have a substantive point now that you have your answer?”

Third try.

I suppose I’d like to hear more about why you would prefer the French regime, given that:

– More than 90% of current US abortions would be legal under the French regime
– Some of the remaining 10% would surely be legal, and some would surely have happened before the 12th week because
– Every abortion would be paid for by the government and performed on demand with no impediments, and
– The government would subsidize a network of clinics throughout the country for the purposes of ensuring people could easily access abortion services, and
– The States would be powerless to impede any of this

This is a recipe for many more abortions, not fewer. That doesn’t bother me, but I assume it does you, and I ask: What is the appeal for you?

286

J-D 07.14.18 at 12:01 am

LFC

What I don’t know at this point, and what I’d like to know, is whether Hey Skipper agrees with your comment.

287

Sebastian H 07.14.18 at 3:47 am

Layman, because the abortions would be of fetuses which weren’t developed enough for me to think that they were persons needing to be protected. The only reason that is confusing is because you are making up all sorts of side issues and then attributing them to me.

I, like about 70% of the population, think that the personhood of the developing fetus has gotten complex enough around the beginning/middle of the 4th month to need protection despite the mother’s strong competing rights. I, like about 80% of the population, think that the personhood of the developing fetus in the first three months isn’t complex enough to overrule the mother’s strong competing rights.

Given those two things, it isn’t even remotely shocking that I am not troubled by a policy which has lots of abortions at a time when I think it is ok, and doesn’t allow them during a time when I don’t think it is ok.

288

Layman 07.14.18 at 11:54 am

Sebastian H: “The only reason that is confusing is because you are making up all sorts of side issues and then attributing them to me.”

They aren’t side issues. They’re the reason you can’t have this regime. The Court would not prescribe such a regime, and if they did you’d probably cry foul about legislating from the bench; and this regime will not materialize in any remote future from Congress. Absent Roe v Wade, the issue is left to the states, and the result is certainly not this regime, as you very well know. So you’re basically engaging in a kind of game, asking people to give up the existing regime for one they can’t have; one you know damned well they can’t have. So, you know, stop that shit.

289

Sebastian H 07.15.18 at 5:46 am

The court prescribed the Roe regime. They could every bit as easily allow a 4th or 5th month regime instead of a 7th month one. Congress could take all sorts of possible actions.

All of this could have been possible in the different Democratic ascendancy regimes since 1973. But common sense changes to bring the abortion rules more in line with people’s understanding couldn’t take place because the Supreme Court made them illegal.

290

Layman 07.15.18 at 11:24 am

Sebastian H: “They could every bit as easily allow a 4th or 5th month regime instead of a 7th month one. Congress could take all sorts of possible actions.“

Yes, this is what I mean when I say your comparison about France is just a game. You know that there’s zero chance the Court would or even could order the France regime, and that there is zero chance Congress would ever pass the France regime, so telling abortion rights proponents that they should be willing to swap what we have no for France regime isn’t a serious argument.

If you don’t abortions after the third trimester, why not address the problems that largely cause them? Half the women who have abortions live at or below the poverty level. Yet 90% of counties in the US have no clinics or doctors that offer abortion services, and 40% of the women of child-bearing age in the US live in those counties. One third of the women who get abortions every year travel more than 50 miles to get one. 27 states require a woman to spend the night or make two trips due to their ‘waiting period’ requirements.

Only 10% of abortions in the US take place after the first trimester. Who gets them? Mainly poor women (because of the obstacles), rich women (because they can), and women who use health insurance to pay (because the insurer believes it’s medically necessary). Maybe if it were a bit easier for a poor woman to get one, there’d be even fewer?

Comments on this entry are closed.