Pure Partisanship, The New Nonpartisanship

Brett: “How do you tell when somebody is acting on the basis of principle? When they follow the principle even when it isn’t in their interest to do so. And that’s what is happening here: Republicans in the Senate are refusing to hold the hearing and vote even though it is in their ideological interest to do so. This is, thus, evidence of their behaving in a principled manner, where refusing to act on a Holder nomination wouldn’t be.”

They have a strong interest in not getting primaried, which will be from the right.

I must say I agree entirely with Brett Bellmore: Barnett’s wording is sure funny taken literally, but read charitably, it seems clear to me that his contention is that, by opposing a nominee who is perfectly qualified and ideologically acceptable, Republicans demonstrate that they are not opposing nominees based on ideological ground but purely in accordance to the procedural point that no nomination should occur in the last year of the presidential mandate (and I also agree with Brett that this contention is obviously bogus).

The phrase “lame duck” either refers to an official holding the office after the election of their successor, or it means nothing at all. If Scalia had died the day after the election…

Fwiw, Brett’s is a plausible reading of Barnett. If that really matters.

“Constitutional Law, Moral Judgment and the Supreme Court as Super-Legislature”, Brian Leiter

BTW, the one day after that Barnett interview (3/16), Sens. Hatch and Flake said that they’d be willing to hold hearings on the nomination after the election. So it’s illegitimate for the non-lame duck pres to nominate, but it’s fine for an actual lame duck Senate to confirm.

There’s no principled argument here. There’s just focus-grouped bullshit.

Somewhat OT, but I recently became aware of this book, which it seems like you (J. Holbo) or perhaps some others might find interesting (though perhaps not enough to plow through it). One of the three Amazon customer reviews appears to do a pretty good job of summarizing the thesis. Briefly: 19th-cent. decisions upholding regulation of liquor and lotteries laid the ground for 20th-cent. decisions upholding New Deal-style economic regulation.

Mr. Holbo is being extremely charitable in his reading of Barnett. Linking to the original article I was somewhat surprised to learn that Barnett is a law professor at Georgetown. I would have hoped that a professor at a major law school could come up with more convincing piffle than exhibited here. Yes, a future president might be able to shape the future direction of the court but how does this diminish the legitimacy of the current president from appointing a justice? How much time does this principle require? Only the last year in office? Two years? Does it matter if the president is first or second term?

Barnett’s reasoning is gibberish masked by a reasonable tone. The principle of not considering a nominee in a president’s last year in office, or in an election year, has no basis in law or history. It will vanish as soon as a Republican sits in the White House. The proper response to such nonsense should be a cream pie in the face from a guy with big shoes and a red rubber nose.

Scalia back from the dead wouldn’t get a hearing if nominated by Obama. Blind opposition to Obama is the only principle in play.

To be honest, I think this is another problem that arises with having such a lengthy primary period, like the previous problem of voters thinking up voting in the primary of the Party they oppose for the least likely to win candidate so as to advantage their own Party’s candidate in the election.

In Australia the Parties can choose their leaders any time they like, and the leader of the parties at the time when an election is called is campaigning to be Prime Minister.

If a High Court Justice passed away during an election (which is not likely since they have to retire when they turn 70) there would not be an appointment of a replacement High Court Justice until after the election when everyone has taken their oaths to be MPs and Ministers and Prime Minister etc

During the election period hardly anything gets done apart from electioneering, and a caretaker government is in place, I guess in case an emergency arises during the election and the government has to do something.

But having this long primary period is like electioneering for a year. This is too long. Maybe it was more practicable in the 18th C when candidates had to travel around by horse and carriage, and the mail was the fastest communication technology, but it seems very lengthy for nowadays so as to be impractical.

The President has the right to replace a Judge but I can understand that it doesn’t really seem proper to do in this election-sort-of period, as in Australia it would have to wait until after the election.

But in Australia we have a short election period without any primaries, as the parties choose candidates and leaders at any time they wish to.

Also, I think this is another problem about politicising the Court too much, as another problem I see is that the appointment of the Judge during a primary-and-election period could be made so as to try to win more votes as part of the electioneering, rather than to appoint the best legal mind to the court.

And the opposite also applies — just like the voter who votes in the primary of the Party he/she opposes for the least likely to win candidate — where the appointment of a judge during a primary-and-election period could be made so as to cause the opposing Party to lose votes.

This is what Brett Bellmore has identified as the real reason behind the principled reason in his above comment:

“They’re afraid the people who elected them will replace them, if they vote to confirm an Obama nominee to the Supreme court this close to an election.”

And Brett Bellmore is the most conservative commenter, so he is likely to be right about this.

The issue here for me is the way Randy Barnett and other apologists on the right are twisting themselves into circles.

The Senate can reject a nominee for any reason. It can reject a nominee because it doesn’t like their hair. It can reject them because their name begins with a vowel. In the specific case of Merrick Garland, the Senate does not want to seat him because, for the Republicans, the dysfunction caused by having an 8-person court is less bad than the policy impact of replacing Scalia with someone significantly to his left and the political fallout of doing so in an election year.

And you know what, I disagree with that on the grounds that Scalia was a vile thug and the Republican Party’s policy goals are basically evil, but as a matter of process I find nothing wrong with it. Indeed, if the situation were reversed, I would be loud in my insistence that a Democratic Senate should refuse to replace Ruth Bader Ginsburg with whatever neofeudal theocrat President Cruz nominated to replace her with, on the grounds that an 8-person court is a less bad outcome than putting someone who Sam Alito needs to look to his right to see in is.

Only they refuse to actually admit this, and I think the reason is because of a national mythology, one they’ve spent decades helping to shore up and one that they’ve often attacked Democrats as violating. And that national mythology is that the Supreme Court isn’t a political body, that it is somehow above politics and a President has a magical ability to determine a “best qualified” nominee based on purely neutral evaluations of someone judgifyin’ skills, and if they don’t do that it is for partisan (and, thus, illegitimate) reasons.

Witness Robert Bork. Bork was, in a very narrow technical sense, perfectly qualified to sit on the court. The Senate rejected him on policy grounds; a majority of Senators looked at the constitutional vision he would promulgate and said “no thank you.”

In my mind, and in the minds of those who understand, correctly, that the Court is in fact a political institution occupied by political actors, and that there’s more than one plausible interpretation of the Constitution as opposed to some magical one true form, that was utterly banal. Reagan picked a fight, lost, had to nominate someone more to the Senates liking. In the minds of many people, however, it was a bloody outrage, because Bork was “qualified” and they buy into the mythology that that “should” be all that matters. You see this a lot from even nominally well-educated people, a sentiment that the Court “shouldn’t be political.”

The Republicans have profited by this myth for ages, and now it is biting them in the ass, because they can’t reject Garland on purely political grounds. It would destroy a convenient fig leaf. So they have to invent this bullshit lame duck stuff.

TLDR; Randy Barnett and everyone squawking his line is either a goddamn liar or a useful dupe, and they’re that way because of a pernicious and harmful myth about the Supreme Court embedded in our national self-image that for a variety of reasons none of the actors who could get rid of it see fit to do so.

I guarantee you if a Democrat wins in the fall, Barnett will pivot smoothly from “this is a matter of a national election” to “any Democratic nominee should be opposed anyway. Election? What was that?”

The real “principle” is that no non conservative should replace Scalia. If Hillary wins, they may betray their base and suddenly flip to calling for a quick hearing on Garland because they would correctly assume that he would be better than another Judge appointed by Hillary. The other alternative would be to do what their base wants and refuse to confirm anyone until the next Republican President, be that four or eight years.

Kidneystones: “The description of ‘lame duck’ is often applied to politicians who are known to be in their final term of office, when colleagues and electors look toward a successor. It is also sometimes used to describe office-holders who have lost an election but have not yet left office.”

If you want to argue that any second-term President is a lame duck from the moment s/he is re-elected, why stop there? Why not argue that they’re a lame duck from the moment they’re elected to their first term?

That aside, you might want to look back at how many SC Justices have been nominated by Presidents in their last term. That is, if you mean to go along with this nonsense that it’s unusual in some way.

John Holbo,

“It acts as a guarantee that two things that may come apart (original intent of the framers, present partisan preference) shall not.”

The Judges will never interpret the Constitution according to the original intent of the framers apart from those Judges who were appointed right at the start after the Constitution was made.

This is due to the interpretation of laws having to be in accordance with case law. A Judge could possibly throw out a few cases saying the Judges were wrong in those instances, but a Judge will never throw out over 200 years of cases and interpret the constitution as if there was no case law and only the intentions of the framers to consider, as it would be very irregular if they did that.

“Maybe a divided people is a sign that the government should try being modest in it’s aims for a while…”

This is wrong on so many levels. First, if the nomination of Judge Garland (which I almost always read first as “Judy Garland”) isn’t modest, I don’t know what is. Declining to nominate a person to fill an empty SCOTUS seat would be extreme. Refusing to consider the nominee is extreme.

Second, why should “government” be “modest” when “the people” are divided? Why shouldn’t division prompt government to take hearty, affirmative steps to bridge the divide?

Third, it’s unclear who precisely is divided here. Which divided public causes the divided government? Seems to me the division we’re seeing is a function of a pre- and post-Citizen’s United “divide and conquer” strategy to game elections.

This leads me to four, the utter failure of those who govern to serve as statesmen [sic]. It is a political office-holder’s job to work to mend popular divisions of (typically ill-founded) opinion. Instead, our leaders–pardon the euphemism–strive to leverage those divisions to their own favor. Fear of losing the next election is a bug, not a feature, among the balance of incentives. An electorate doesn’t suffer “betrayal” merely because the actions of its elected representative don’t satisfy a brute demand. If that were so, I would betray my daughter every time I denied her a lollipop. (Yes, the analogy to paternalism is intentional.)

It is stunning that anybody could genuinely imagine that a presidential nomination to fill a vacant seat on the Supreme Court would be politically immodest.

Another: “This is due to the interpretation of laws having to be in accordance with case law. A Judge could possibly throw out a few cases saying the Judges were wrong in those instances, but a Judge will never throw out over 200 years of cases and interpret the constitution as if there was no case law and only the intentions of the framers to consider, as it would be very irregular if they did that.”

John Holbo: “You get no argument from me. But Barnett disagrees. Judges ought to be willing to be radical like that.”

So does the GOP. Scalia was quite willing to pretend that Marbury v. Madison and 200 years of precedent didn’t exist, when he didn’t want to overturn a law. In the decision which sparked the Religious Freedom Protection Act (or whatever it’s called), Scalia basically said that religious minorities shouldn’t come to the courts for protection of their rights, but instead to rely on whatever the majority was willing to give them.

It was a very Robert Tanney decision from a very Robert Tanney person.

There was one week in which two decisions were released – in the first, Scalia voted with the majority to overturn a law. In the second, Scalia was in the minority, and the majority decision was to overturn another law. Scalia had a blistering BS bucket of a dissent, castigating the majority – not for their reasons – but for daring to overturn a law at all.

#23 – I quoted wikipedia because it’s easily accessible and in this case it’s right.

See, http://www.slate.com/blogs/the_slatest/2016/02/13/obama_is_not_a_lame_duck_president.html

http://www.cleveland.com/open/index.ssf/2014/11/where_does_the_term_lame_duck.html

http://www.denverpost.com/quillen/ci_11351363

I will agree that there are people who use “lame duck,” inaccurately for US (although not UK) usage, as an insult to describe an official reaching the end of a term and facing a hostile legislature. But if all it means is that it’s an insult, then where’s the principle?

Brett Bellmore #44: “the divisions that are tearing this country apart.”

What are these divisions, and how are they “tearing the US apart”?

“Being modest in it’s aims IS an affirmative step to bridge the divide.” This wants things both ways. Modesty upthread referred approvingly to Senate obstruction in response to deep controversy. The default sequence of events when a SCOTUS seat is vacant is 1) POTUS nominates a candidate, 2) Senate holds a hearing, and 3) amid deep controversy, insinuation, and name-calling, Senate either approves or declines to approve the candidate. POTUS having caused default event 1), Senate now refrains from 2). The result is the delay of (ordinary) deep controversy at 3) at the cost of deep controversy over the immodest unwarranted deviation from the default action.

Not to put words in John’s mouth, but I took the impossibility of “Sticking to just things everyone agrees the government should be doing” to pertain not to the government’s ability to rein itself in from time to time, but to the odds of achieving universal agreement. One might have thought “everyone agrees” the Senate Judiciary Committee ought to exercise its power to vet a presidential nomination to a SCOTUS seat. But even then, these days one expects potentially deep disagreement over the qualification of the candidate.

McConnell said this in mid-February, before there was any nominee. I wrote in a comment here the day after McConnell’s statement that the only reason for this would be to save their own necks at the polls. The Barnett-Grassley bafflegab was foreordained that very moment that Mitch McConnell made the statement before anyone was nominated. They needed pseudo-rational excuses for propaganda, and Barnett among others complied, just as soon as Obama’s pick was known.

The oddest argument in these comments is that, “if representative government is to work”, then the Republican Senators should be “afraid to betray the people who elect them”, and that’s a “legitimate reason for them to refuse to confirm [Garland],” until after “the election is safely past, and they figure they can betray the people who elected them without facing immediate retribution”.

This sounds to bogus to me. By that logic, the Republican Senators are hoping to continue in their powerful jobs, and occasionally relent in their obstructions, and representative government be damned.

I am chary of attempting to add another category of “bogus” to a typology by someone so advanced in the field, someone who could write, “It’s not bogus because it makes no sense, it’s just contingently bogus”. But this is bogus. It is also bananas. So I feel compelled to add the category of “double bogus bananas” to the typology of bogosity.

John Holbo @ 60

It’s not about decisions I like/dislike on policy grounds–and I don’t think it’s just me, or just conservatives.

The “big five” decisions of the last few years, in my mind, are Citizens United (campaign finance), Heller (right to keep and bear arms), Lawrence (sodomy laws), Kelo (takings), and King (Obamacare mandate). No one I know of thinks they were all decided correctly–either legally or politically. ALL of them had the characteristic I identify above as problematic–they change “is this something the Federal government can, or State governments must, do.”

Sorry–posted too soon.

In that way, it would make the Supreme Court less controversial, and less political. People wouldn’t necessarily be happy, but they would direct their efforts differently.

Disputes that advance all the way to SCOTUS are bad examples of theoretical legal questions, because at that point they’re not theoretical. They’re bound to provoke continuing division, because the interests brought to the Court after a decision don’t just disappear, and there are multiple hooks on which a proponent of one side or the other can hang an argument. Citizens United: a horrible outcome based upon principles of free expression and corporate personhood that are arguably less horrible, all framed in terms of a perversely parsimonious definition of corruption.

Kelo is a funny addition to that list.

An aside on “lame ducks”. If Obama manages to push the TPP through Congress, it will almost certainly be in a lame duck session, taking place after the election of a declared opponent of the TPP as President . And, if it happens, it will rely overwhelmingly on the votes of Republicans.

should be “and not making the appointment of judges to the Supreme Court POLITICISED is also a good fair principle”

And there should be some sort of protocol for what the government does during this lengthy Primary period unless you shorten it to 2 months like in Australia. As for instance I read that the Obama administration was going to start aiding the Clinton campaign. This is not the proper work of government at all. The government should govern, and electioneering is separate from governing. And a Presidential administration that is electioneering for a candidate should not be making judicial appointments as they are unlikely to be making the appointment on the basis of who has the best legal mind, and more likely to be making the appointment for electioneering purposes.

For instance, in that OP you said:

““What purpose is served by setting up the Republicans to demonstrate their hypocrisy yet again”
…..
And the answer is: in a year in which Republicans will surely be campaigning on the horrors of the tyrant Obama’s judicial radicalism, making the most elaborate show of moderation ever is of some value. Not overwhelming value, no. Be it noted: the advantage is not just that it might win over the ever-dwindling, perhaps entirely mythical moderate swing voter bloc but that it might, to some degree divide Republicans against themselves.”

So you see, you are getting the appointment of the best legal mind for the Supreme Court confused with electioneering.

John Holbo,

No, I was not saying you were hypocritical about pure partisanship = nonpartisanship.

What I was drawing out was how in the other post you gave a strategy for a Posner appointment, and this was for political reasons. Firstly that a moderate Democrat nomination was better than no nomination and a chance that Republicans could make the nomination if a Republican won the Presidential election. Secondly that this could have positive results for Democrats in the election “not just that it might win over the ever-dwindling, perhaps entirely mythical moderate swing voter bloc but that it might, to some degree divide Republicans against themselves.”

Now in the OP you quote Barnett from an audio interview which will take me too long to listen to the whole thing, as saying the principle is

“The principle is: a lame-duck [sic] President is going to be making an appointment that is going to be lasting decades and move the direction of the court in the ways that Jeff [Rosen] and I both agree that it will be moved …… So the President has every right to nominate, and …[the Senate] have every right to refuse, and the principled reason is: that the decision of what the direction of the future Supreme Court is going to be is now going to be the matter of a national election, to be settled within months, and it’s on the basis of that election that this seat should be filled.”

Now Brett Bellmore has interpreted this principle in his first comment as:

“If the nominee were someone obviously hostile to conservative/right positions, (Eric Holder, say.) then opposition would reasonably be attributed to ideological objections to the nominee.
But, Garland is not someone obviously hostile to conservative/right positions. …
How do you tell when somebody is acting on the basis of principle? When they follow the principle even when it isn’t in their interest to do so.”

However, Brett Bellmore says he doesnt agree with this, and says the real reason is:

“But it’s just an excuse…. They’re afraid the people who elected them will replace them, if they vote to confirm an Obama nominee to the Supreme court this close to an election.
…. IMO, once the election is safely past, and they figure they can betray the people who elected them without facing immediate retribution, they’ll confirm Garland. Because, really, they have no personal objection to him, they’re just afraid of voter retribution.”

Now Brett Bellmore’s reasoning is much better than Barnett’s reasoning.

Apart from Brett Bellmore is also very partisan in his reason.

So to give the non-partisan translation as an Australian who hopes the Republicans lose since they have awful climate change policies is

The principle is that the government, in this case the President and the Senate, shouldn’t be making important appointments during election periods. In Australia in election periods the caretaker government does not make important appointments in election periods, this is an uncontroversial principle.

America has a problem since you developed this lengthy primary period which goes for a long time. But I already read in the newspaper about the Obama administration figuring out how to aid the Clinton campaign, so clearly the President is involved in electioneering at the moment.

While I do not know what reasons the President has given for nominating whoever it is, you John Holbo said one reason to nominate a moderate candidate was to win over swing voters and also to divide the Republicans against themselves in a primary-election period.

So, I believe the Senate is entirely correct and in keeping with Australian procedure not to consider the appointment of a candidate to the Supreme Court during this period.

But my recommendation would be to look at whether you need such a lengthy primary-election period, and if so, then codify how the government being President and Senate is allowed to act during this electioneering period, so as not to confuse electioneering with the business of government.

Well perhaps hypocrisy was the incorrect term.

You have said the President could nominate a moderate partly so to get swing votes for the Democrats and to divide the Republicans among themselves.

Brett Bellmore has said Barnett’s real reason was the Republicans don’t want to appoint a moderate nominated by Obama because it could cause fewer people to vote for Republicans and divide the Republicans among themselves.

As you can see, they cottoned on to the strategy, and now they don’t even think they will consider any appointments until after the election.

I think that the Republican side has the greater principle in this instance, not because I want the Republicans to win, but because the principle is that the business of government is separate from electioneering, and the appointment of candidates shouldn’t be for electioneering purposes, and to facility this it is normal in Australia that no important appointments are made during election periods.

The main problem I identify with applying this Australian principle in the American context, is that you have a very lengthy Primary and Election period, compared to our maximum election period of about 2 months.

In fact I don’t know the reasoning for this principle in Australia, only that it is the case. It could be for Barnett’s reasons, Brett Bellmore’s reasons, both reasons, or other reasons all together.

“[W]e’ve started cheating and amending the Constitution more and more obviously through judicial means.” There is no such thing as “amending the Constitution…through judicial means.” Admitting that opens the door to all the other bullshit, the hyper-legalization of the filibuster and the ruling by executive order, for instance. By the same token, it means nothing to say that the Supreme Court justices “ought to be judicial.”

“I don’t see a strong constituency for going back to the old idea of the Supreme Court as bulwarks against Constitutional transgressions.” Yeah, for sure. The problem is that bulwarks against transgressions are pretty much just ideas, old, new, etc.

John Holbo,

“but it’s quite unprecedented for the Senate to refuse to consider the President’s nominee”

This is nothing compared to a historical precedent from the Founding days I found.

John Adams hated Thomas Jefferson so much between the February 17 1801 election and the March 4 1801 inauguration he made a Act to decrease the number of Supreme Court Justices from 6 to 5, effective upon the next vacancy.

And he also “establish[ed] ten new district courts, expand[ed] the number of circuit courts from three to six, and add[ed] additional judges to each circuit, giving the President the authority to appoint Federal judges and justices of the peace. ”
https://en.wikipedia.org/wiki/Marbury_v._Madison

As you can see the current Republicans are very restrained compared to John Adams ;-)

@73 ZM is incorrect in claiming that Oz elections run for 2 months, in comparison to US primary+general. We have preselections (the equivalent of primaries) that start six months or more before the expected date of the election (a discretionary variable under the control of the incumbent PM). Not as long as the US, but much more than 2 months.

Well the bulwark theory of the Constitution is the only one that has been sold to the people, and is what Marbury v Madison is based on, so if we are throwing it away it might be nice for someone to articulate a convincing non bulwark reason we should bother listening to the Supreme Court.

And where do you get the idea that living constitutionalist believe in limiting themselves? Is there some case you have in mind where they ever say things like “I’d like this policy but the Constitution won’t let me have it”?

What would a strong ethos of judicial self restraint look like for a living constitutionalist? I don’t understand how you see that working.

Brett Bellmore,

“Personally I think long campaigns are not a bad price to pay for near absolute freedom of speech, and elections whose timing can’t be manipulated by the incumbent party for it’s own benefit.”

Well what would you do about separating the business of government from the business of electioneering during this very very long primary-and-election period?

In terms of this issue — would you say the President should only make short term and acting appointments?

But how could you get this into the law, since there is no defined election period that the law can say: Between X and Y the President may only make acting and short term appointments.

First you need to define X and Y, otherwise you don’t have a time frame , and if you don’t have a time frame you don’t have a good argument for why the Senate will refuse to consider any nominations for the Supreme Court as all you can say is “lame duck” Presidents shouldn’t appoint Supreme Court Judges, but “lame duck” is very imprecise terminology.

There should be at least a Code of Conduct if not a Act or Constitutional Amendment about what the President can and cannot do during primary-and-election periods, the actual length of time of which must be defined.

> Fetishizing Merriam-Webster is more idiotic than citing wiki in informal discussion.

As I’ve mentioned before: there are more things than words. A word-in-use inescapably carries only part of its potential meaning, but the dictionary — inescapably — can’t know the context and so can only provide the full scope of the potential meaning… which words in real-world use essentially never carry.

Useful if you’re a second-language learner or trying to expand your vocab, but to be blunt a competent and articulate first-language speaker encountering a word they might have some vague idea of almost certainly has a better idea of what it means in context — the only meaning that matters — than the best-effort definition a dictionary-maker can provide.

Might as well fetishize OED: “(b) U.S. Polit., an office-holder who is not, or cannot be, re-elected; spec. (before 1933), a defeated member in the short session of Congress after a November election…”

Love the Sorites thread.

= = = It is a imperfect and messy effort but the results are something other than what a purely partisan interpretation of the law would result in. (A lot of Scalia’s decisions are a perfect exmaple of this.) = = =

Odd then that Scalia felt the need to spend so much time socializing with some of the participants in his major cases (duck hunting, captive animal shooting, secret hunting societies, etc) prior to determining what the original intent of the writers of the Constitution was back in 1787. Interestingly though it wasn’t all the participants; just a select set. Fortunately there was no partisanship involved.

It is also interesting to see how original intent applies so perfectly to the large number of modern-day cases involving individual citizens vs. limited liability corporations (the citizens being in the wrong 99% of the time), since such entities were a vanishingly small percentage of businesses in 1787 and were not discussed at the Convention.

fn1: limited liability corporations typically also being joint-stock entities, whether publicly traded or not.

It occurs to me that ” really wish you had found the time to respond to my university analogy on the last go around” comes across as sarcastic. It wasn’t meant to be. I fully understand that you have real life constraints and interests that extend beyond responding to internet commenters who can’t understand what you’re trying to say.

Many of the problems of constitutional interpretation are thinly disguised problems of constitutionalism itself. Why do we have constitutions? What is their function? What does a constitution do for us? How does it improve politics? How can it improve politics?

If we are going to have a constitution, then we have a duty to see that it “works” to improve our politics. By “improve” I mean to suggest that a constitution channels our conflicts and disagreements in ways that reduce the costs and allows us to realise the benefits of political and economic cooperation. It outlines a decision making process.

Among the things it adds to the mix are coordinating devices that encourage rational deliberation and the articulation of general principles. If a constitution cannot mandate rule by philosopher kings, it can nevertheless make philosophy a political means. We must make arguments of general principle to make a constitutional government work, relying on common understanding not just to arrive at decisions, but also to trust that decisions regarding general principals “stick” and will be implemented in cases reliably. This is a core problem for law. It is problem because deciding political questions by agreeing on abstract principles is a solution, that relies on its open-ended ambiguity to permit people to agree in ignorance about how agreement in the present may affect their particular interests in an array of future cases. It is an improvement over a politics of raw, capricious and impulsive will, because it marshals the human capacity to reason; the otherwise useless ability to rationalize and “explain” one’s own (irrational and destructive) behavior after the fact is put to work judging the behavior of others and interpreting the consequences of patterns of social cooperation.

In the original post, reference is made to partisans clothing their naked partisanship with principle by mere rhetorical pretence — a gesture, barely a wave of the hand, and no attempt to construct an argument. Somehow, that leads to the dispute between proponents of original intent and a living constitution.

It does seem to me that proponents of original intent are often arguing against the Constitution of 1787 itself. They want key passages of the Constitution to be written in less sweeping or ambiguous language.

Proponents of a living constitution are more honest. A fossil cannot govern us. But, apparently they have not been entirely persuasive, if they have not articulated what a constitution accomplishes. Maybe, we are creeping up on the realization that we need to write a new constitution to have the benefits.

Brett @ 114: ‘There may be constraints in there, but they’re more in the nature of “What can I get away with right now? ” constraints…’

someguy88 @ 119: “On the other hand you have a group of people who think that laws should mean what ever they want them to mean whenever they want them to mean it.”

When you arrive at the point where you’re certain your rhetorical opponents lack any principle and/or intellectual integrity at all, it seems rather pointless to converse with them.

Would it not be more reasonable – more charitable, even – to say that people on all sides look to the constitution for confirmation of what they already hold to be right? What seems to be different is not how they use the constitution, but what they’ve already decided before they look at it.

Layman,

Everything is pointless. I provided a concrete example of how they lack principle and intellectual integrity. Instead of complaining about my lack of charity perhaps we could discuss the example?

And a big no to the second part. That is the dance I despise. Many people, probably most, do as you say, but not everyone. Some people try to apply some set of objective standards like plain text.

So we jig to the left and say everyone does it. Then we jig to the left again, and say so I am going to do it, and admit it, and that makes me more honest than than the others. Presto we have turned a vice into a virtue, demeaned the set of honest folks who try not to do it, and sainted our selves in the process.

No thanks.

= = = someguy88@9:13 PM Presto we have turned a vice into a virtue, demeaned the set of honest folks who try not to do it, and sainted our selves in the process. = = =

You sort of left out the part where you conclusively demonstrated that the people who claim they can perform an “original interpretation” of text written 240 years ago in a different society by a small subset of even the then-existing population (no POC, no women) with no doubts or nuance are honest and virtuous, whilst those who disagree are dishonest and vice-ridden. Other than simply claiming it as a premise, which is fun but not likely to convince anyone.

You also chose not to explain how the leading proponent of this theory, Scalia, managed to apply “original intent” to so many cases involving the limited liability corporation when that concept did not figure in the writing of the Constitution of 1787.

@126, what makes you think it’s functional?

I’m sure it has problems, but the sort of dysfunction that you’re talking about there (cases not being dealt with promptly) is just ordinary bureaucratic dysfunction, not a sign of political crisis which you were talking about in 125.

As a political institution the ECHR appears to be successful. Not without criticism, but the number of counties that have signed on has expanded and there are now 47 members. In terms of integration with the national political structures, they recently (2013) approved protocol 16 which expanded jurisdiction to allow the court to advisory opinions:

The Protocol which introduces the possibility for the highest national courts to ask the European Court for an advisory opinion is a product of the ongoing reform process of the Court. This particular Protocol to the ECHR aims to strengthen the national implementation of the Convention by increasing interaction (a word preferred over the often-used term “judicial dialogue”) between the European Court in Strasbourg and domestic courts. The explanatory report to the Protocol can be found here.

Layman, what are the internal limiting principles on living constitutionalism? It isn’t the actual words (interstate commerce=any commerce and in some case non-commerce for example) and it certainly isn’t past precedent, so what is it? Brett isn’t construing unfairly.

Sebastian H, Let me re-state my questions about the European courts again (with the caveat that I’m not an expert and I don’t think you either). I believe that originalism is less influential as a theory in Europe I ‘m curious do you think (1) That originalism, as an approach, is largely specific to the US constitution, and the interpretive challenges that it provides? Or do you think that any judicial body would do well to adopt an originalist approach? If the former, what is it about the US Constitution that make originalism valuable? If the latter, how would you imagine applying originalist principles to positive rights?

Or, I should ask, do you think originalism, per se, is tangential to your main concern which is that courts should be appropriately “judicial” in their approach?

(I’ll stop bringing this up if nobody else cares, but I think they’re interesting question.)

If the latter, how would you imagine applying originalist principles to positive rights?

Let me offer a specific example. I was thinking about the right that I quoted earlier: “Right to Respect for Private and Family Life.” and it made me think of the case about the “right to be forgotten.” I happen to think that ruling was problematic, but it seems like exactly the sort of thing that one could argue under a positive standard of privacy. I’m curious how people who oppose “living constitutionalism” think that a constitutional court should approach an issue like that (since that’s a case where I would say that “living constitutionalism” is the only possible approach)?

I don’t know the system you are talking about on a deep level.

I’m not an expert either, I do recommend Governing With Judges, and this conversation is making me want to re-read. Doing a little googling, this book confirms my belief:

In Europe, however, recourse to originalism is virtually non-existant. … The American preoccupation with originalism arises not from a concern over the enduring legitimacy of the Constitution itself but, rather, from a concern over the democratic legitimacy of subjecting majoritarian laws to consistitutional review.

and offers this as an alternate approach

The other [approach] may be characterized as . . . ‘principle-based’ . . . Originalists purport to constrain judges by demanding consistency with the intent of the framers. Principle-based theorist purport, for their part, to constrain judges to decided cases according to the dictates of principles that have been (according to them) enshrined in the Constitution.

I’m perfectly comfortable with both that summary and the idea of a principle-based approach.

“The judiciary isn’t some kind of representative sample of legal and constitutional thinking.” You don’t subscribe, I take it, to the “those who can’t do teach” taxonomy of the sociology of knowledge. I mean, the judiciary is, in fact, a kind of representative sample of legal and constitutional thinking, and it seems weird to state otherwise. But I think you mean the judiciary doesn’t fairly represent the entire range of theories of judicial action and reasoning, including extremes and outliers. Maybe so. It should be? Or it should comprise a different sample? If the latter, your argument looks like political bad faith to people who oppose gratuitous political appointments to the judiciary.

“The Supreme Court shouldn’t be a superlegislature, but nor should it be the monkeywrench gang. Is there a way to thread that needle by setting aside bias and preference? I don’t think so. Here we have not just a psychological barrier but a conceptual antinomy. There is no way to be a good – judicious! – judge without being guided by values that will look, to those who do not share them, like partisan biases or mere preferences. ”

I think this argument is not recognising that the law is a very distinct profession. Judges should be able to interpret the law judicially rather than in a biased manner — this is why bias is a reason cases can get appealed if the decision shows evidence of bias.

You don’t ask about surgeons whether they should operate on people following proper medical procedures or if since they are humans they probably just start hacking into people and so we can’t expect good surgery from surgeons since they are just like everyone else, of course the surgeons follow the proper medical procedure or else they get banned as doctors.

Law is a very rigorous course and profession, and has a whole set of norms and procedures, both written and unwritten, for the law profession to focus on upholding and interpreting The Law rather than making whatever biased decisions they wish to according to their personal whims.

In this sense law is different from philosophy, not because philosophy is not rigorous but because there is no equivalent of The Law in philosophy which philosophers must interpret and uphold. There are a lot of philosophy books written for 1000s of years, with none of them being the One State Philosophy which all philosophers in a the State must interpret and uphold, and there are no police and trials and gaols etc to enforce this One State Philosophy.

The law is different from philosophical ideas, and the practice and procedures of the law reflects this. When you go to a philosophy class no one stands up for the Court Professors when they enter the room, and there aren’t several Barrister Philosophers assisted by Solicitor Philosophers all with suitcases full of documents making arguments to the Court Philosophers, and calling witnesses and experts, so the Court Philosophers can make a decision on the matter before it .

I think that all these procedures have a great bearing on the practice of law, like proper medical procedures have a great bearing on the practice of surgery.

I think I’m not understanding what you think the legal realists need to restrain themselves from. What does a judicial virtue ethics of restraint look like?

Not all (or even the most important) ethics of restraint involve methods of interpretation. I feel like on the most basic principles that people would agree on is that judges should avoid acting as legislators, as much as possible, and that part of what that means is that they shouldn’t do more than is necessary to rule on that law.

Rulings can, of course, be broad or narrow, but a judge shouldn’t be in the position of saying, “this law that requires schools to serve pork as part of every meal is unconstitutional religious discrimination and the ethics of care that a government take on when it provides school requires that at least two portions of vegetables be served with every meal.” We would all agree that everything before the “and” is a legal ruling and everything after is unnecessary and that a judge should restrain themselves from add it.

But, one of the examples from Governing With Judges that I find convincing: what if a court is reviewing a law and feels like one part of the law is clearly unconstitutional. The court has to decide between striking just that portion of the law vs striking the entire law, and that requires the decision making process of a legislator — deciding what the effects would be of each possibility, and how well the law could stand without that one element.

That is a decision in which a judge could also be inclined to restraint or overreach in a way that’s completely separate from the process of constitutional interpretation.

Good political judgment depends on being a heapocrite. A principle to live by.

Re 150 and 152: this really seems a specifically American problem. In Germany it would be very common that the Constitutional Court, if it finds one aspect of a law to violate the constitution, requires the legistalure to amend that aspect of the law within a certain time limit. The Supreme Court doesn’t do that, and it probably couldn’t given how dysfunctional US Congress is. The German court is also usually much faster to reach such decisions since there is a process of direct appeal to the Constitutional Court.

SH, I challenged your theory of originalism on a different thread (https://crookedtimber.org/2016/02/14/antonin-scalia-the-donald-trump-of-the-supreme-court/#comment-659558) and never got an answer.

“You are saying that the law must be a machine that calculates the right answer based on unambiguous instructions. But legal texts are not computer programs and the word “judgment” involves, well, judgment.” And:

“No amount of textual originalism can spare the courts the work of making a judgment call as to when a search would be unreasonable. And of course there’s the right to a “speedy” trial, “just” compensation, not to be subjected to “cruel and unusual” punishment etc. etc. SH effectively claims that the text is so obvious that nobody could disagree with his interpretation in good faith. The fact is that the language of the constitution has its fair share of ambivalence and the authors surely must have known and intended that future generations would develop their own interpretations. Scalia’s own fake originalism, which doesn’t even go by the language as it is written but by how a hypothetical contemporary would have understood it, ranks high on the list of the most absurd judicial doctrines. And he throws even that overboard whenever it suits him, most obviously in the Heller decision, which the dissent masterfully deconstructed. Btw everything SH says about those others who “never feel constrained by what the Constitution says to vote against their policy preferences” applies to his own 2nd amendment stance.”

And how does trying to make sure that everyone has access to healthcare, produce evil?

Btw, from the earlier thread: “It is worth noting that most 18th century contemporaries would have understood a statement such as “all men are created equal” very differently from how we understand it today, even though the words seem to be clear enough.” Oh yes, the authors of the constitution always made their intent admirably clear. (https://crookedtimber.org/2016/02/14/antonin-scalia-the-donald-trump-of-the-supreme-court/#comment-660065)

Brett Bellmore #163: “Language is inherently fossilist”

Language is NOT inherently fossilist. There are many proofs of this in science and philosophy and life. Language is mostly situational. It is used in a broad spectrum of applications, that shades into a far lesser number of clear-cut cases on one end.

It isn’t even clear that we can formalize the rules of grammar.

“Originalism, formalism, textualism” are good for some things, but they go a step too far. Too far in two ways, really:

One is that language and abstract concepts cannot completely map over reality. The other is that the whole system (of which a Constitution is only a part) is becoming more complex, and so we may expect that novel and unforeseen problems will emerge, which a Constitution doesn’t quite handle, yet.

Originalism hopes to meet these challenges, to keep this clean, by hewing to an interpretation of the written law which, if it indeed should prove inadequate, will then be changed by legislation (including Constitutional amendment).

All well and good, except that is not the way that Reality happens.

The first response to a problem will almost always be by the living “spirit” of the laws, or of a Constitution. It is the easiest response, and may prove to be workable. If THAT in turn is seen to be contradictory to the rest of the Constitution, or else it leads to other interpretations which are unworkable, or else enough people become angry, then, there will be an executive fix, or a legislative fix, or the amendment process will be engaged.

The “originalist” premise, on the other hand, is that we must proceed legally by maintaining original intent, and amend when that is not adequate. This inverts the process, puts the cart before the horse. Much harder route. And may be unnecessary for most situations.

What about “bad” decisions? Will Supreme Court justices err, make faulty decisions, make dishonest decisions? Yes but probably not often. Life tenure and the weight of the judgment of history ought to keep them keep them fairly pure. But it is not avoidable. They make mistakes; they let their own religious opinions cloud their judgment (e.g. Scalia); they judge with an eye on phony tenets of economics (like most of the Court).

But originalism won’t solve that problem, either. Most so-called “intellectually trained” people use abstract intellectual categories to defend their emotional preferences, in the easiest way possible. It is easy for “originalism” as an intellectual movement to become another form of self-deception. It won’t prevent bad decisions.

If it turns out that enough voters dislike the Supreme Court’s decisions in an area of law or life, then, they can attempt the harder process of amending the Constitution.

If you don’t like the decision in King v. Burwell — or in Citizens United v. FEC — then go amend the Constitution. If you are too lazy, then stop complaining about it.

But this is not tantamount to originalism, formalism, textualism. Is the process of amendment to be considered fossilized, or living?

Brett @ 141, apparently there are no true originalists.

This whole discussion suffers from treating textualist theories as if they are useless if they don’t give perfectly determinable answers in every case, while treating living constitutionalist theories to no discernible standard whatsoever. But under most systems of analysis, the theory that gives some useful answers is better than the one that gives none. If an interpretive theory is real it should at least be able to sort SOME decisions into the “wrong” pile. If your interpretative theory sorts all arguments into the “good” pile, it isn’t actually a functioning theory of anything. If you use textualist arguments you can often find the locus of the weakness in the argument by pointing out a misunderstanding about some of the words or the context of the words. That is why your analysis of the interstate commerce clause works very poorly from a textualist approach. (I’m a little worried that you don’t understand the textualist approach if you think that 168 demonstrates that ‘liberal action’ is in line with the text). In a cheekily technical textualist sense, “affects interstate commerce” isn’t “interstate commerce”. The troubling thing about living constitutionalist theory is that all its current practitioners want it to read “Congress shall have the power to regulate [anything]”. (This is not a strawman. I know it sounds like a strawman, but it is in fact the position of essentially the entire living constitutionalist side). From a textualist point of view it is pretty clear that however hard the line is to draw about what counts as commerce and what doesn’t, and what counts as interstate and what doesn’t, THAT interpretation is invalid because if the authors had meant anything like “anything” they would have said something like that. The living constitutionalist says what? “We would like it better if Congress could regulate everything so we will interpret it thus.” Ok, but how is that helpful as an interpretative theory? Any clause could be interpreted that way.

“How are you going to handle stare decisis”

How does living constitutionalism handle stare decisis any better than textualist theories? Maybe you don’t follow closely (again not sarcastic). Living constitutionalists don’t seem to ever say things like “I wish I could rule one way but stare decisis ties my hands”. They often say “I like the old result and stare decisis lets me just refer to the old case”. But there are all sorts of very recent cases where the living constitutionalist votes have overturned settled precedent–Often directly on point precedent (see the death penalty for 17 year olds who engage in pre-meditated murder). I think they made the right call from a textualist point of view some times, and not in others. But they certainly didn’t feel restrained by stare decisis more than a textualist would have.

This conversation would be helped if we could talk about living constitutional theories positively rather than always defining them as “not textualist theories”. How would one ever classify a decision as ‘wrong’ under living constitutional theories? Is it possible for a living constitutionalist to go through almost all the proper living constitutionalist reasoning but take a misstep and be wrong? Is it possible through a weakness in the theory for you to go through all the right steps and be wrong? Without resorting to textualist arguments, how do we know when either of those cases happen?

Also, if you are a living constitutionalist who considers stare decisis important, doesn’t living constitutionalism just move the locus of textualism one step up (to the level of textual criticism of decision-texts rather than constitution-texts) but retain all of the criticisms of textualism?

“More fundamentally, it’s not clear what counts as restraint vs. overreach.”

So are you giving up on the ethics of restraint stuff? That was the part of your response that I thought separated you from the will-to-power legal realists, so it is disappointing to see you abandon it only one day after I discovered you had it.

@someguy88, there’s another whole post which, after one strips out the gratuitous insults, one is left with only ‘Obamacare’. I’m still waiting for you to the explain what you mean. What is Obamacare an example of, and why?

Glad to see the conversation still going on, I was mulling this over last night, and had a couple of thoughts. But first, to answer Sebastian H’s question:

So are you giving up on the ethics of restraint stuff? That was the part of your response that I thought separated you from the will-to-power legal realists, so it is disappointing to see you abandon it only one day after I discovered you had it.

The point I was trying to make, which I thought John Holbo was elaborating on, was that restraint is a separate trait from strategy of interpretation. I think Brett’s 159 demonstrates this fairly well — not only do we not agree on how the constitution should be interpreted, we also don’t agree on what constitutes restraint.

So, it makes sense to view restraint as a separate element of judicial philosophy (and practice) rather than treating it as a sub-set of interpretation.

So, to elaborate on what I was writing yesterday. I remain interested in the question of whether originalism, which Brett describes as just, “how you read things” is, in fact, a historically specific artifact of certain specific arguments about the US Constitution (which would, I note, make it seem like an example of “judicial interpretation as a political process” rather than a way to have judicial interpretation which is not political, but that’s probably getting ahead of myself).

Starting from the distinction quoted in 139 in which originalism is contasted with “principle-based” interpretation I would offer three observations (in order of increasing degrees of speculation).

1) I believe that European courts and judicial commenters are more inclined to treat constitutions as statements of principles. I can think of two possible reasons, I don’t know if both, either, or neither are true: first that the process of drafting constitutions has evolved in the direction of statements of principle, second that a common-law history takes for granted that law consists of both a series of specific rules and a set of general principles.

2) I personally believe that it makes sense to read the US Constitution as embodying statements of principle rather than just rules. However, even if one disagrees with that (as Sebastian H and Brett B do), it seems worth noting that it would be entirely possible for amendments to the constitution to be phrased as statements of principle. Imagine that the 1st amendment was changed from “Congress shall make no law . . .” to “All people have the rights to freedom of expression, freedom of association, freedom of thought, conscience and religion. Discrimination on the basis of religion or belief is prohibited.” That would be an immediate and significant change, and one reason is that it puts the court in the position of protecting a right, rather than just enforcing a prohibition. In that case I don’t see how that could be applied based just on, “it’s how you read things.” In that case the language wouldn’t specify how the right should be protected, that would be determined by the courts, it would just state the rights.

3) Thinking about amendments, it also occurred to me that Sebastian H may have revealed a limitation of originalism. He first suggested that, in an ideal world, there would be more amendments to the constitution, and that it’s a sign the failure of our current political practices that this doesn’t happen:

“First, we’ve essentially given up on formally amending the Constitution. Yes I know it is difficult to do, but we managed to do it on a fairly regular basis until the early 1970s.”

And then, later, he said the following:

“I don’t think the European Convention on Human Rights is a particularly helpful example because the governing document is only about 60 years old, much of the implementation structure has only been in place since 1998, and a big section of the structure only coming into place in 2010. Essentially you don’t have to have originalism yet because many of the original actors are still in the Court or within easy living memory. ”

Taken together, that makes it look like originalism is, itself, just a symptom of the same political dysfunction which results in a lack of constitutional amendments. If Sebastian H thinks both that it’s appropriate to amend the constitution every generation or so, and that originalism is less relevant when the document has changed within “easy living memory” that suggests that, in an ideal world, originalism would be minor thread of judicial interpretation — something worth thinking about, but hardly definitive when the document is changing.

I don’t mean to put words in Sebastian H’s mouth, but I would say both that (1) I personally think that there is a place for legal arguments based on originalist or textualist reading, but that they are just one of a range of possible legal arguments and (2) it’s possible that the reason why Sebastian H and I find ourselves in disagreement are purely historical, not based on a priori philosophical differences.

For fun I’ll dip into Stanley Fish’s deliberately provocative discussions.

What a strange sentence.

William S. Burroughs-style cut-up poetry with the Bill of Rights

This sounds amazing — someone seriously needs to do this.

I occasionally glance at SCOTUS opinions (easy to do online; they are posted the day they are announced). One that came down recently was interesting for the alignment of Justices, among other things.

The issue, put loosely (and as recalled on the basis of glancing/skimming through), was whether someone charged w a crime shd be allowed to use assets that are not tainted by the charged crime, but are potentially forfeitable to the govt in the event of a conviction, to pay a lawyer — or more precisely, whether a ct order *preventing* such use of assets violates the defendant’s 6th Amendment right to counsel. The Court held for the defendant. There was a plurality consisting of Breyer, Ginsburg, Sotomayor, Roberts, plus Thomas concurred only in the judgment (not in the plurality’s reasoning). Kennedy and Alito dissented. And so, separately, did Kagan, whose short-ish dissent was framed to some extent in terms of stare decisis (she said she found “troubling” the decision that she thought was the governing precedent, but nonetheless it was the governing precedent and no one was asking for it to be overruled). Don’t think this has much to do w/ the interminable debate on living constitutionalism etc., but it was interesting anyway.

@Sebastian H
Living constitutionalists don’t seem to ever say things like “I wish I could rule one way but stare decisis ties my hands”.

That’s pretty much what Kagan says in her dissent in the Luis case, as I read it. However you parse the motives, that does appear to me to be what she says. YMMV.

@Brett Bellmore

Are you aware of a long law-review article published in the 1980s called “On the Original Understanding of ‘Original Intent'”? This article, at least on one reading of what happened, was such a devastating shredding of the notion that the Constitution was to be interpreted according to the ‘intent’ of the Framers that it forced Scalia to drop that approach and start talking, instead, about what the words meant to the ordinary person on the street in the late 18th cent.

S. Lemieux has said that he doesn’t think there’s actually much difference between the two approaches (original ‘intent’ and original demotic-meaning), but that is definitely not the view of everyone who has looked into this.

Anyway, either ‘original’ approach fails dismally when it comes to, e.g., cruel and unusual punishment, where the ‘living’ evolving-standards-of-decency approach makes more sense. Unless you want to maintain that b.c someone walking on the streets of late 18th cent. Boston or Philadelphia wd have seen e.g. putting someone in stocks as not cruel, therefore it’s not ‘cruel and unusual’ today.

In short, originalism is mostly unpersuasive and arguments about it are, frankly, rather tedious.

@LFC: Correction accepted, and thank you. I hadn’t even considered that foreitable assets might consist of both tainted and non-tainted assets. Essentially, I equated forfeitable and tainted in the context of forfeiture.

“…deliberate accommodation…”

Holbo:
“Suppose – just for example – you resolve to read a text so that it is maximally coherent, or maximally sensible.”

Or so that it has, as Dworkin iirc put it in ‘Law’s Empire’, maximal ‘integrity’. One can imagine other approaches too, I suppose.

The idea that a text has to be read for authorial intention and in no other way is bunk.

The Jefferson Powell article “On the Original Understanding of ‘Original Intent'” destroyed, or so I gather (I have not read it myself), the ‘authorial intent’ position w/r/t the Constitution. The Framers themselves didn’t want it read that way. It might behoove BB or SH to take a look at the piece or its abstract, which are freely available.

But of course they won’t. It’s so much easier to conduct these analytical-philosophy-in-a-vacuum disputes about computer-generated poetry, or monkeys sitting in a room typing randomly for five thousand years, or who knows what else.

Has anyone brought up brains in a vat yet? Seems like someone should.

Dean Rowan @208
Is it a precise recipe for future action? A mere framework with hints and bits of guidance hung upon it to direct future judgments and actions? A deliberat[e] accommodation for an unknown future? Does our understanding of the politics of the time suggest it was composed for maximal coherence and logic?

These are, it seems to me, very pertinent questions. Istm they really can’t be answered properly without looking at the circumstances surrounding the drafting of the Const. and what the framers themselves said and thought about what kind of document they were drafting.

—-

“Congress shall make no law…abridging the freedom of speech….” Whatever this might have been generally taken to mean in 1789, is it reasonable to think those responsible for this language, and the state legislatures that ratified it, were so short-sighted and incapable of prediction that they thought it would mean exactly the same thing in 1989 that it did in 1789? It stretches credulity to think that “the freedom of speech” has some objective, precise, eternal, singular meaning valid for all time and fixed at one point in time, such that a court deciding free-speech issues in 2016 has only to conjure up a hypothetical burgher strolling down the main street of Albany NY or Charleston SC or wherever in 1789 and proceed to try to divine what he would think the phrase means, or has only to read some number or other of The Federalist.

Probably even more problems arise with the free-press clause, starting with what counts as “the press”. Did the authors of the First Am. intend ‘the press’ to mean a cable-TV station half of whose programming involves, say, cooking shows and the other half B-movies from the 1950s? Who the hell knows? What kind of “interpretive dance”, what kind of superstitious, pointless, bizarre, counterproductive ‘rain dance’ would be required to conjure up the ghosts of the framers and divine what they might have thought about the regulatory provisions of the Communications Act of 1934, about that Act’s declaration that radio and television stations, by virtue of their licenses, were obliged to serve ‘the public interest’? Even if the framers wd have disliked it, does that mean it’s unconstitutional? (No, I don’t think so.) Etc.

John Holbo,

Well since you said it was machine generated I didn’t try reading it as if a person wrote it. What was interesting to think about while reading it was what the programmer programmed into it to make it read like a poem and not be random word confetti. There is some sort of a grammar, and the words seem to cluster to me. I can’t really read it for meaning since it gives me a headache as it doesn’t make sense properly, I quite enjoyed it apart from the headache inducing but it doesn’t make sense.

I don’t see that someone making a program to produce poems is really all that much different from William Burroughs making poems by cutting up things and assembling them. It is a different technique to be sure, but the programmer is the author as much as William Burroughs is an author when he just cut up things other people wrote and assembled them.

Zachary Scholl the programmer wrote about the poetry generator program :

This Poetry generator uses a Context-free grammar using the notation of Backus-Naur Form. Context-free grammar systems are a generalized system of formal grammar defined by production rules which allow sentences to be recursively built from smaller phrases. The formalism was developed by Noam Chomskey in the 1950’s.

Essentially this poetry generator works by having the poem dissected into smaller components: stanzas, lines, phrases, then verbs, adjectives, and nouns. When a call to create a poem is made, then it randomly selects components of the poem and recursively generates each of those.

For example, a generated title may look something like this:

*title*=A *fruit*
*fruit*=grape|apple|orange|banana|cherry|mango|kiwi|tomato|lemon|fruit

In that case the title is generated as “A ” and then it looks up and selects one of the possible “” words to finish it before it returns “A grape” or something similar.

Some poetry generation stuff:

http://www.eddeaddad.net/

@221 I first read, “I’m not saying I agree with Balkin…” as “I’m not saying I agree with Bakhtin…,” which was a wonderful example of my own subconscious coloring my search for your intention.

Brett 188 comes up with the example of words like gay that have aquired entirely new meaning over time. But far more difficult are cases like “All men are created equal”. Here the isolated words haven’t changed meaning in some obvious way, and yet the meaning of the phrase as ordinary people (as well as the the slave-owning authors) would understand it has changed radically.

Brett Bellmore,

“Regulating commerce that crosses particular boundaries is a foregoing power. Regulating non-commerce, or commerce that does not cross particular boundaries is NOT a foregoing power.”

I am not entirely sure about the issues of homegrown vegetables etc in relation to this, but from what I have read the Federal government stalking law applies to stalking via interstate commerce and has been applied to what you might call “non-commerce” such as cyberstalking on the internet. I think the legal definition of commerce is reasonably broad to encompass a number of activities.

The Homeland Security Digital Library has a piece on Senator Franken’s Location Privacy Protection Act 2014 which goes into how the internet and smart phones etc are used for stalking in the digital age

Senator Franken — “Three years ago, I held a hearing to look at how our laws were protecting the location information generated by smartphones, cellphones and tablets. The first group I heard from was the Minnesota Coalition for Battered Women. They told me that across Minnesota, victims were being followed through so-called “stalking apps” specifically designed to help stalkers secretly track their victims.
…
The Minnesota Coalition for Battered Women submitted testimony about a northern Minnesota woman who was the victim of domestic violence – and the victim of one of these stalking apps. This victim had decided to get help. And so she went to a domestic violence program located in a county building. She got to the building, and within five minutes, she got a text from her abuser asking her why she was in the county building. The woman was terrified. And so an advocate took her to the courthouse to get a restraining order. As soon as she filed for the order, she got a second text from her abuser asking her why she was at the courthouse, and whether she was getting a restraining order against him. They later figured out that she was being tracked through a stalking app installed on her phone.”

Testimony of Bea Hanson, Principal Deputy Director Office on Violence Against Women — “Stalking is a complex crime that is often missed, misunderstood, and underestimated. . Stalking is a course of conduct directed at a specific person that causes the targeted individual to fear for their safety or the safety of their family members. Victims feel isolated, vulnerable, and frightened, tend to suffer from anxiety, depression, and insomnia, and lose time from work as a result. Many victims have no choice but to move or change jobs due to their victimisation.

Incidents of stalking behavior, when considered separately, may seem relatively innocuous. Stalking tends to escalate over time…
…
Although most stalking offenses are best handled by state and local police departments and prosecutors, the Department has also responded to the cyberstalking challenge through the prosecution of violations of the federal cyberstalking prohibition, 18 U.S.C. § 2261A(2). This statute allows for the prosecution of individuals who stalk using “the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce….” This prohibition encompasses the use of the Internet through computers, smart phones, and other mobile devices.

In one case, for example, a Maine man hacked into a female victim’s email account, found sexually explicit photographs of the victim there, and downloaded them to his phone. He then attempted to extort her into sending him even more sexually explicit images by threatening to publish explicit images on the internet – and distribute them to the victim’s neighbors and work and social acquaintances. The offender pled guilty to violating section 2261A and was sentenced to serve 33 months in prison.”

https://www.hsdl.org/?view&did=755543

I would be interested to know how Brett’s legal version of sola scriptura would deal with words such as “reasonable”, “impartial”, “speedy”, or even, in the case of his hobby-horse, the actual words of the commerce clause, which are that Congress shall have power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” I mean, on a naive reading, “among” is different to “with”, so perhaps it was intended that Congress only regulate commerce involving more than two states?

It’s for such reasons we have an art of jurisprudence but, of course, use of it is precluded if we are to rely only on the plain words as meant (by whom?) 200 years ago, should that be actually ascertainable.

Peter T,

“I mean, on a naive reading, “among” is different to “with”, so perhaps it was intended that Congress only regulate commerce involving more than two states?”

Chief Justice John Marshall (who I mentioned before in the historical example of John Adams and Thomas Jefferson and the judiciary) decided an early case about the interstate commerce clause Gibbons v Ogden 1824, and gave the description of “among” —

“The word “among” means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior….Comprehensive as the word “among” is, it may very properly be restricted to that commerce which concerns more States than one.”
https://en.wikipedia.org/wiki/Gibbons_v._Ogden

242, see 158. Evading these questions has been Brett’s and SH’s strategy forever.

Oh good – another episode of the Brett Bellmore Show

Peter T,

This is the John Marshall of Justice Oliver Wendell Holmes’s saying that a Supreme Court Justice should be a “combination of Justinian, Jesus Christ, and John Marshall” so I am sure he must have taken everything into consideration in defining what among means.

I think we have a winner. The libertarian is:
– denying observed, univocal empirical findings,
– denying plain common sense, and
– ignoring clear deductive consequences of JH’s ‘interstate commerce’ examples
because it tells against his preferred political arrangements.

Dean C Rowan,

Well no harm in asking, you just seemed very knowledgable about music and poetry, but I guess librarians often are.

I’ll admit right up front that I am disinclined to read pop science, such as the title Lee A. Arnold @251 recommends, for reasons to which I allude in my comment @254. I’m always grateful for recommendations, because I enjoy sharing the enthusiasm of other readers, but in my experience pop science necessarily dumbs down its accounts to accommodate readers like me who are ill-equipped to evaluate the underlying real science. A sentence like this one, then–“All of these software approaches to machine intelligence employ ‘sense, order, relevance’ EXACTLY as humans do, in certain processes of inference.”–scares me. Exactly? All caps EXACTLY? What does that mean? Put another way, for whom is it meaningful? Perhaps a theoretical CSer might approve it as marking an achievement for CS, but a literary critic or a reader of Emily Dickinson-like computer-generated texts wouldn’t know what do with it, except to play a counterfactual game.

John @231 also challenges my remarks about “sense, order, relevance.” I stand by them, but it seems I need to clarify them. If you show me an Emily Dickinson-like computer-generated text, I will know as I approach the text that its linguistic features of “sense, order, relevance” were produced automatically, and not by a particular mid-career poet. If a computer produces, “The sun just touched the morning…,” we can parse the clause, imagine a meaning, even a poetically rich meaning where sense, order, and relevance contribute to a grand effect, but we will find ourselves wandering very soon into “as if,” because the computer isn’t a poet, a maker of grand effect. If we read Dickinson’s poem beginning with the same clause, we acknowledge the sense, order, and relevance of the clause, but we also recognize the occurrence of “sun” and “morning,” the anthropomorphism of a celestial icon and a temporal orientation, the pun on “mourning,” perhaps also on “just,” all of which might (or might not) have special significance in Dickinson’s ouevre. That significance can’t be imparted automatically.

Speaking of suns, if you enjoy the mad-lib version of Wordsworth, you’ll love Kenneth Koch’s “When the Sun Tries to Go On,” which reads like a monumental mad lib crowd-sourced at an acid party. But the example doesn’t work for me. I read mad libs as mad libs, just as I read statutes as statutes and Emily Dickinson poems as Emily Dickinson poems, except when I enjoy perverse fun reading any of them as something else. “An ashtray did my spirit seal” does have a meaning, and that meaning provokes perverse fun when I read it pretending Wordsworth had written it. It’s fun to read, too, even if I don’t hear the Wordsworth echo. A mad lib that reads, “…to promote the progress of science and the useful ashtrays,” is also meaningful and silly. But the former isn’t a poem and the latter isn’t a constitutional clause. The lessons we learn examining how we interpret these absurd texts only get us so far. We wouldn’t take our account of the copyright clause mad lib as a prescription for finally resolving the meaning of the actual Constitution.

With the vegetable growing case are we talking about Wickard v. Filburn, which was about wheat? Funny, that case was about federal regulation of the interstate market in wheat. Production of wheat substantially affects the market. Is the complaint against the case that local production of wheat for private consumption isn’t interstate commerce, or that national agricultural markets aren’t real things?

It has been so long since I read “Validity in Interpretation,” the only Hirsch book I could stomach, that I probably need to revisit it. Perhaps Fish is never right about anything–Milton? really?–but even when he’s wrong, he’s good.

The Constitution is poorly written (heresy!!!) — vague, far too open-ended (on purpose, no doubt), clumsy and clunky in its syntax and structure. The use of “among” in the Commerce Clause fits that pattern. Choosing “among” rather than “between” make it easy to interpret the Commerce Clause as all-encompassing, for all domestic, foreign and Native American commerce. All of it. Nothing outside the purview of the state, at least theoretically. Which was basically the norm for Europe at the time and the tradition in America. Theoretically. One could make as sound a case for that all encompassing aspect as “interstate,” if not more so, given the word choice and the history. As in, if they had meant “between the states,” they would have said so. If they had meant it in the Ayn Randian sense, they would have waited to write it all until the 1950s or 60s.

Just as, if they had meant “keep and bear arms” to apply outside of well-regulated militias (which no longer exist), they wouldn’t have included that clause.

Let’s be honest. This is all about politics and political battles between factions long after the fact. The Constitution’s subpar language, syntax, vagueness and open-endedness have set up these endless battles, and I wonder if the authors knew this all along. It may well have been one of the first official cases of pre-trolling for the new country, designed to keep opposing camps busy for centuries to come. The only way to “resolve” its various questions is power in the moment and for that moment.

Plume: The only way to “resolve” its various questions is power in the moment and for that moment.

No Constitution is self-enforcing except to the extent that it makes people attempting to use state power to jump thru hoops, and that process of jumping thru hoops determines just how high the threshold is — not on reading comprehension per Rowan, but — on power. How much power does it take to effect social, economic or political change? And, how long must that power be sustained — thru how many enactments, confirmations and elaborations?

Arguably, it is not the mere enactment, as in passing a particular law or making some executive decision, but in assembling and sustaining a political coalition to press the change forward, time and again, against whatever opposition manifests, that creates the social change that undergirds the political change that effects the policy change.

258: I have to disagree, SH is not asking a good question.

Let me explain why I think it was a good question for this discussion. SH has already agreed that there are hard questions and ambiguous situations in which textualism/originalism may not be sufficient to reach a conclusion. His contention, at that point is that using approaches other than textualism/originalism should be treated with skepticism, done rarely, and that the goal should be to use textualism/originalism as much as possible.

I had said earlier that I think textualism has it’s place, and that it’s a good approach in some cases. But, seeing that question, I wanted to take the opportunity to argue that a non-textualist approach is not merely something that you are forced into using when textualism fails, it is affirmatively the best way to think about certain types of questions.

I think it’s right and appropriate to have a toolbox with a variety of styles of legal argumentation, each of which will have advantages and disadvantages for certain cases and part of what I think of as indicative of a “judicial” temperament is having a good sense of how and when to use various tools.

“What I do claim is that the textualist/originalist (which is not strictly speaking the same thing but in this debate is typically mixed together) approach cannot provide coherent criteria (much less an infallible algorithm) for deciding the most difficult cases. ”

Compared to what? What is the coherent criteria that the alternate methods provide. Can you list at least some of them?

The 10th amendment is basically meaningless. It restates the Ultra Vires rule. If such a rule doesn’t apply then the constitution is pointless as the federal government is sovereign.

CharleyCarp @265: That is a terrific story, and the entire post well illustrates your point about negative or missing evidence. I wonder, though: did none of the senior lawyers understand how the junior lawyer had been led astray?

@CharleyCarp
good story

Reverting to something closer to the original post, I think points of view broadly similar to my own was represented early in the discussion by Dean C Rowan (comment 16) and Murc (comment 22). What difference does it make for the evaluation the actions of Chuck Grassley and other Republican Senators whether they are founded on principle? Knowing that an action was founded on principle is not useful for evaluating the action in the absence of an evaluation of the principle. The commission of bad deeds is not mitigated by their foundation on principle if the principle is also bad. To my way of thinking, a focus on the question of whether there is a principle underlying a decision, independently of the issue of what that principle is and its substantive merits, is a way of obfuscating discussion of the substantive merits of the decision.

Yes, if I want to evaluate the substantive merits of a decision, then I want to know about the principles (if any) underlying it, but not simply whether there were any. That doesn’t help.

“… it goes without saying–he doesn’t say it after all–that arbitrarily close approximation of learning isn’t learning …”

Mathematically, the principle that an arbitrary close approximation of something is equal to that something is the foundation of analysis in general and calculus in particular. (As Vince Lombardi might say, if it ain’t it sure beats the heck out of whatever is in second place.) If it isn’t true then planes should stop flying and everything else designed with calculus should stop working, or at least not work as they were designed to.

Human thinking including poetry writing consists partly of some algorithms which can be taught and learned and largely of trial and error*, combined with memory. Nothing that a machine cannot do, but with something like 70 billion neurons in the human brain, no super-computer yet built is within orders of magnitude of the processing power of our nanotech brains. We may well become extinct before making anything comparable to what billions of years of trial-and-error evolution have made, but we have made enough progress to understand there is nothing mystical about human thinking. It took humans about 100,000 years to invent the first synthetic fiber, nylon. It took bacteria less than 20 years of massively-parallel trial-and-error to invent a way to digest it. Many new pharmaceuticals are developed by setting bacteria or fungi a problem and copying their solutions.

That’s as I see it, but as my friend Mario says, believe whatever you have to believe to get yourself through the night.

* E.g., Edison – from “Edison: His Life and Inventions” – “I then learned that he had thus made over nine thousand experiments in trying to devise this new type of storage battery, but had not produced a single thing that promised to solve the question. In view of this immense amount of thought and labor, my sympathy got the better of my judgment, and I said: ‘Isn’t it a shame that with the tremendous amount of work you have done you haven’t been able to get any results?’ Edison turned on me like a flash, and with a smile replied: ‘Results! Why, man, I have gotten a lot of results! I know several thousand things that won’t work.’ ”

Nils Bohr: an expert is “a person who has made all the mistakes that can be made in a very narrow field.”

Azimov” “Creation is embarrassing. For every new, good idea you have, there are a hundred, ten thousand foolish ones.”

“Not getting one’s judicial tit caught in a legislative wringer” is not one of the canons of statutory construction I remember learning, but it might as well have been one. It seems to me that Sutherland’s magisterial (at least very long) Statutes and Statutory Construction ought to be kept in mind when textualism is at issue. It is a compendium of principles and guiding aphorisms and precedents and rationales and tricks deployed by courts when the statutory text they have been invited to construe is vague to a point where the parties to a suit reasonably dispute the meaning of the text. Algorithmic it ain’t, though.

ZM @283: Fondness of legal loopholes, in the sense that I enjoy identifying or observing them, but not that I am fond of using them, is likely a defense mechanism. The same might be said for poetry, but I am quite conscious of my use of poetry for protection. The funny thing is that I am squarely a fan of spirit as opposed to letter of the law. And don’t get me started on equity.

Brett Bellmore @197

‘Ultimately, it [living constitutionalism] claims the right to exercise discretion in every case. It just doesn’t consider it prudent to pursue that right immediately in every area.’

I was struck by this, and on reflection I realised that it’s a description of how I live my life. I claim the right to exercise discretion in every case, but I don’t consider it prudent to pursue that right immediately in every area.

Do you live your life differently?

Brett Bellmore @162

Is there ever an objective test to determine whether a text is ambiguous.

Consider a scenario where you and I both examine the same text and both agree that there is only one possible way that anybody could ever interpret that text, which is equivalent to saying that the text is completely free of ambiguity.

Now suppose a third person comes along and gives the text another interpretation, one that neither of us had thought of.

At this point, some people (perhaps not you, but certainly some people) would insist that this new interpretation is impossible, because the text is completely unambiguous.

Not me, though. I might perhaps argue (depending on what the text is, and what the two interpretations are, and what difference it makes in effect) that the interpretation I first thought of is to be preferred (if I had some substantive reason to do so). But I’m going to admit that I was wrong about the text being completely free of ambiguity. I don’t see any way of avoiding the conclusion, if people actually do interpret a text in different ways, that it can be interpreted in different ways. If something actually happens, that demonstrates incontrovertibly that it’s possible. People differing over the meaning of a text is definitive proof that it’s ambiguous. But (and I say this in full consciousness of the fact that there are many texts I am convinced are unambiguous) you’ll never get an equally definitive proof that a text is unambiguous.

There are many texts whose interpretations have not so far been disputed, and I am confident that many never will be. But once the interpretation of a particular text actually is disputed, you can’t define the dispute out of existence.

There are rarely disputes about the purely procedural prescriptions in the constitution. Nobody to my knowledge disputes that the constitution requires Senators to be elected by popular vote, or that it requires the electoral college for presidential elections. There are some who think the first is a mistake, and many think the second is utterly dumb, but nobody has suggested that it’s a matter of interpretation or that the SC could rule to do away with the electoral college, for example (*). Disputes arise when the constitution is ambiguous, when it requires value judgments that can’t be resolved from the text alone. And as I pointed out earlier, the vast majority of constitutional questions are probably resolved without much dispute. The existence of a relatively small number of highly controversial rulings is not evidence that anything goes. It is an unavoidable byproduct of having a constitution at all.

(*) It could be different if the constitution contained some declaration of principle about elections that the EC procedure is inconsistent with. In that case, the courts would have to decide which of several inconsistent clauses of the constitution has priority.

As an example, the German constitution has the clause: “The constitutional order in the Länder must conform to the principles of a republican, democratic and social state governed by the rule of law, within the meaning of this Basic Law. In each Land, county and municipality the people shall be represented by a body chosen in *general, direct, free, equal and secret elections*.”

JimV #278: “we have made enough progress to understand there is nothing mystical about human thinking”

Unless you are using “mystical” incorrectly for “magical”, I tend to doubt this.

“Yes, but now you are arguing against my reading not on the grounds that the text doesn’t support it, or the original meaning of the text, but because the practical reality would be manifestly bad. ”

No. I’m arguing that in a text that says “among the several states” and “commerce” interpreting it as “anywhere” and “on any subject” is textually unsupported because the “commerce” doesn’t mean everything, and “among the several states” doesn’t mean even all commerce.

And please acknowledge that you understand that I’m not providing a hypothetical living constitutionalist interpretation of the interstate commerce clause, I’m providing the actual existing interpretation of the interstate commerce clause if you subtract out the votes of the hated texualists. The fact that your hypothetical living constitutionalism has all sorts of alleged advantages, while actually existing living constitutionalism led to interpretations you say we probably shouldn’t allow should give you at least a little pause shouldn’t it? (Souter for example believed that he couldn’t figure out the difference between commercial and non-commercial). Why do you get to worry about practical problems with textualism and suddenly ignore them with actually practiced living constitutionalism? Here we have an interpretation you think is beyond the bounds of legitimate construction, and it is defended by essentially all of the living constitutionalists. So doesn’t that make you think you’re missing something about the living constitutionalists?

“entirely made up”

We’re probably in the “beating a dead horse” stage of the conversation, but this seems like another one of those irregular verbs: my rights are obvious, your rights are a clear extrapolation from the text, his rights are entirely made up.

Do conservatives think that Cantell v Connecticut created an entirely made up right? (genuine question, I was just searching for cases concerning the Free Exercise clause, and that seemed like an interesting one).

“The Constitution’s provisions taken as a whole, as an architecture, have implications and rights of privacy reserved to the individual, as well as limitations on state purposes and means, are arguably among them.”

I would be MUCH more open to this kind of argument from people who are willing to interpret the interstate commerce clause in a similar light. In fact I’m really really open to that kind of argument as a textualist because texts are to be considered as a whole and the text of the bill of rights strongly suggests that it isn’t to be exclusive in the ennumeration of rights. But having expansive protections against federal power in an area where the statement about the rights are more speculative while at the same time completely ignoring protections against federal power where the limitations are explicit strikes me as demonstrative of exactly why the living constitutionalist ethos strikes me as so anti-judicial. (To be clear, I’m sure there theoretically could exist living constitutionalists who think abortion rights are protected by the Constitution and would read the interstate commerce clause in some method that is close to proper, but in the reality of US judging and academic criticism of the same I’ve never seen such a creature).

These have a history, and that history suggests that it probably wasn’t a good idea to suggest, as reactionary conservatives on the Court did, that the 14th amendment protected corporate business but not negroes, or that the sanctity of contract meant that the government could not regulate minimum wages or hours of work. The tendentious claim that the Constitution in Holmes’ immortal phrase, enacts the social statics of Herbert Spencer, put the bulwark of the interstate commerce clause in rather a bad light, just when the privations of the Great Depression made the case for extensive economic regulation of national scale and scope. That’s the way the cookie crumbles, in a political sense.

If it were possible to articulate a clean division of responsibility between the Federal and State authorities, that did not threaten to throw the modern economy into third-world chaos, I expect that it might be possible to enact it by means of an amendment. But, it would be necessary to make a case on the merits for a crisp delineation — not the merits as an accurate interpretation, but the merits as a principle of public policy.

The interstate commerce clause is ambiguous and when it confronted the needs of a 20th century economy, it did not lend itself either to crisp interpretation nor to crisp amendment. Oh well.

Brett @307,

The Constitution gives the Federal government vast powers, as written. Contrary to right-wing myth, it was never written as a propertarian or minarchist document, replete with ceding ground to the states and encapsulating the right’s mythos of “limited government.” It actually established, for better or worse, one of the most powerful central governments of its time, and wildly in excess of the AOC, which is really the propertarian/minarchist wet dream, not the Constitution. The anti-federalists, remember, lost, with the ratification of the Constitution, and then lost again with the Civil War.

The Supremacy Clause alone destroys the “states’ rights” dream, and that was before the Civil War and subsequent amendments:

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

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing [sic] in the Constitution or Laws of any State to the Contrary notwithstanding.

From the Wiki article:

“The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land.[1] It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be applied. Even state constitutions are subordinate to federal law.[2]”

I’d rather throw it all out and start anew. It’s time to stop following the lead of 18th century slave holders. But it is what it is until that day, and the worst possible thing for this nation or its future would be to let the ideological heirs of the slaveocracy — right-libertarians and movement conservatives — “take back Amurica” and move it even closer to fascism than it already is.

Brett @311,

Can you elaborate on what the Federal government has “usurped” and from whom? Remember, all of it is fiction. All of it. There is no “natural law” or “higher power” as the final word. The AOC. English Common Law. Greek democracy. Roman republicanism — all of it is fiction. Everything that led up to the moment the Constitution became law was and still is fiction, as is the Constitution itself. It’s just agreed upon fiction in that relevant moment in time, and those who did the agreeing were rarely less than the ruling elite of their relevant eras. As in, the most powerful people of their own era, almost always, and rarely more than a few at any given time.

So the battle is all about interpreting these fictions, and the most powerful factions almost always win these battles, with rare exceptions. But winning the battles has absolutely nothing to do with any objective truth about the documents themselves or any kind of objective reality — which they can not possibly represent. We all want to believe our interpretation is based on things like objective truth, logic and reality, and I am guilty of that as well. But when we clear away the debris, it all really boils down to temporary victories based upon the projection of temporary power, and the acquiescence of our opponents — which may also be temporary.

So, Brett, are you of the belief that the Federal government actually took away something from “the states,” another fictional concept/entity, that was rightfully theirs?

“‘(Souter for example believed that he couldn’t figure out the difference between commercial and non-commercial)’”

Sure, but you need to know just a little bit about court language to understand what he’s saying. The background is that you choose ‘rational basis’ deference to a legislature when you don’t want to enforce a right. (That is because under the rational basis test, any rational connection which could be made between the the aim of the legislation and proper authority is enough to uphold the law even if it is not supported by evidence and even if there is significant evidence against it. This test is so easy to pass that I have only seen it fail twice, and in one of those instances (the gay marriage cases) it clearly should have passed the test if it were being applied like a regular rational basis test. It is literally enough to say “Congress has the right to X, Congress believes the law is related in some way to X, and it is not logically impossible that the law is related to X, therefore it passes the test.” With that in mind Souter writes:

“There is today, however, a backward glance at both the old pitfalls, as the Court treats deference under the rationality rule as subject to gradation according to the commercial or noncommercial nature of the immediate subject of the challenged regulation. See ante, at 558-561. The distinction between what is patently commercial and what is not looks much like the old distinction between what directly affects commerce and what touches it only indirectly. And the act of calibrating the level of deference by drawing a line between what is patently commercial and what is less purely so will probably resemble the process of deciding how much interference with contractual freedom was fatal…

Taking the Court’s opinion on its own terms, JUSTICE BREYER has explained both the hopeless porosity of “commercial” character as a ground of Commerce Clause distinction in America’s highly connected economy, and the inconsistency of this categorization with our rational basis precedents from the last 50 years.”

United States v. Lopez
514 U.S. 549 (1995) at 608

I know it is a lot of legalese, but he is saying that the commerce clause belongs in the rational basis bucket, and that trying to draw useful distinctions between commercial and non-commercial activity is essentially impossible so the majority can’t possibly figure out if something is ‘commerce’ if Congress said that it is. Of course we know that he doesn’t actually believe this, because we’ve read commercial speech cases but he is a living constitutionalist so apparently consistency isn’t an important consideration.

Sebastian H: Of course we know that he doesn’t actually believe this, because . . .

That seems more than a trifle ungenerous.

You have not confronted Holbo’s point: what is the practical reason to want Federal power to turn on a distinction between commercial and non-commercial? Or on some restrictive meaning of “among” the several states?

BB 289: Empirically, the rate of change was absurdly low even before the 1970s. After the Bill of Rights, only 17 amendments were passed, none between 1804 and the Civil War (in that period, France went through three monarchies and several republics), twelve since 1870 (some of which concerning rather trivial details). Political stability is not a bad thing at all, mind you, but this is petrification not stability. There has been enormous social change during those centuries, and that change has left hardly any trace in the nation’s political order. That is extremely unusual, and I think unhealthy. I can’t think of any remotely comparable polity (Britain perhaps qualifies, since it doesn’t have a written constitution). Even Switzerland, which I think of as a paragon of stability, passed fully revised constitutions in 1848, 1873, and 1999.

What could be done, I don’t know. At some point, there will be a sense of political crisis sufficient to drive a revolution. Until then, the bickering over tinkering with a constitution written for another age will continue.

What’s so “mumbo-jumbo” on “interpretations of some sacred texts”? It would seem most of all of our culture is based on that. It would also seem that saying one constitutional text somehow is essentially different from previous sacred texts is rather essentialist.

It’s also not that 9 sages have the monopoly on interpreting anything. They have a special status, for sure, but the interpretation is not just theirs. Otherwise there wouldn’t be such discussion on nominating one of the 9.

I guess I just don’t know how you can take one or another side on this. You need both the tradition (the text) and the change (the procedure for interpreting and amending it). I do think with TM that the US constitution is a little heavy on the tradition. Then again, one would hope that the current process of amending would allow avoiding revolutions. There is enough empirical evidence that revolutions – at least in short/medium term – are not the best guarantees for good outcomes.

Ze K @318

Possibly what you mean is that the hypothetical scenario I presented is not what you had in mind when you made the comment I was responding to. I apologise if I gave the impression that it was; I am sure it wasn’t, and I never intended to suggest that it was.

I still think the question I set up is an interesting one, regardless of its relationship (or lack of relationship) to your earlier comment. Obviously if you are not interested in discussing my question you need not do so.

@Ze K
There is no ‘rights’.

Ze K thinks if you don’t have a right to do everything, then you don’t have a right to do anything. It is illegal for Ze K to cook meth in his kitchen, therefore Ze K thinks there is no such thing as a right to privacy.

Bullshit. There are rights but they are not absolute. The right to privacy does not mean you have a right to rape or murder someone in the privacy of your home. The right to free speech does not mean you have a right to phone a school or an office building and deliver a fake bomb threat. Etc.

I don’t actually agree with Ze K on rights, legal or otherwise, but he has a better point than that. The meth-cooking example does not require a pernicious and simple-minded view of rights to tell us something. And ZK did not say that cooking meth at home should be legal. I do say this (but proper safety equipment should be required).

Freedom of speech is not absolute. You can’t slander someone publically, within certain limits. You can’t threaten, etc. These examples of limits are where speech goes to directly harming others. They are what you might call (aping mathematics) ‘degenerate cases’.

The right to privacy allowing abortion is but prohibiting meth-cooking is not like that. Meth-cooking is not some kind of degenerate case of abortion, nor any other activity allowed by a right to privacy. The cases are not similar. The application of a right to privacy allowing abortion but not meth-cooking is an arbitrary imposition. That I think was ZE`s initial point and its force is independent of his substantive views on rights.

It is anyway unclear that rights to privacy, which I happen to think are important, is the best political or ethical route to our stance on abortion. To me it`s plain as day that abortion is an elective medical procedure; no law is needed. Works fine in Canada. Equally plain: drugs should be legal. Much safer than cars and rock-climbing.

If that’s so, then it appears that the villain of the story you’re telling is the concept of ‘rational basis’ review, and that leads to these questions: who invented that concept? how did it win acceptance? who (as a judge) endorses it and who (as a judge) rejects it?

The concept dates back at least as far as the 19th century, but started to gain momentum as a reaction against the Lochner Era. The big early champion was Oliver Wendell Holmes.

Basically, the first three decades of the 20th century saw the courts using doctrines of Substantive Due Process to protect individual rights – e.g. freedom of contract (Lochner v New York), freedom to educate your children (Pierce v Society of Sisters), and more generally “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (Meyer v Nebraska). This was opposed by the Progressive movement, who wanted greater room for activist government to operate, and by the Legal Realists, who claimed that law is indeterminate, judges are just injecting their policy preferences, blah blah blah. Holmes was the champion of both movements, and took an almost Ze K-ist view of rights.

Eventually, in the 1930s, the New Deal legislation gets passed, which brings all this to a head, and puts the Supreme Court under tremendous pressure. It was one thing for the court to strike down various state-level laws, but much harder for it to strike down lots of federal laws with an overwhelming democratic mandate behind them. So although some things did get struck down, starting in 1934 the court gradually gives up on Substantive Due Process. Except then the court backtracks a bit in Carolene Products and says that although it won’t scrutinise too much to protect economic rights, it will use stricter scrutiny in certain situation. And so going forward from that you see the court taking very different approaches to different rights, because the level of scrutiny you use essentially determines the outcome (strict scrutiny = fatal, rational basis = harmless).

As for who opposes or defends rational basis review nowadays – Thomas and Posner (though from very different viewpoints) are the principle enemies. No-one, however, takes a pseudo-Holmesian view and favours it across the board. Rather, the most committed champions of rational basis review (Breyer, say) would be horrified at the idea of applying it to abortion regulations.

Corey @334,

Interesting. As mentioned above, the Constitution is poorly written, all too vague and open-ended, all too often. And we must oftentimes interpret it for what is left out, rather than what is actually on the page. “Among” could mean within state borders too, though few seem to interpret it that way. But if they had intended it to be strictly “interstate,” they would have said so. And/or they would have added a followup phrase or sentence to clarify that this does not apply to commerce within the borders of a state. It would have been extremely easy to do so.

Same with the 2nd amendment, which has undergone the most radical inflation of the original “right” of any amendment in our history. If they had intended it to mean “unlimited consumer choice” — which is now how so many on the right view it — they would have said so. They would have said something to the effect of, “the right to keep and bear any arms, of any lethality, size, quantity or capacity one might ever and forever choose, shall not be infringed.” But the “right,” as written, has absolutely nothing to do with consumer choice, or the unlimited freedom to purchase any kind of weapon one might fantasize about as they watch Red Dawn with their camouflaged buddies on Sundays. It just says keep and bear arms if you’re in the state militia, which no longer exist.

(OT) Also, Corey: Would greatly enjoy reading any elaboration about (your idea that) the right disciplines “progressives,” often without their realizing this. This has especially struck home for me in recent conversations with Hillary supporters. People who consider themselves “progressives” seem to have doubled and tripled down on the idea that only “centrist” legislation can ever, ever be proposed in this climate, so there isn’t any need to even discuss progressive policy in open debate. If this isn’t all about the right’s all too successful disciplining of the center left, then nothing is.

Corey, even in Balkin’s more expansive definition of commerce you add road networks and perhaps communication networks (the postal service, telephone service, television service). That still doesn’t get you the literally everything that living constitutionalists want.

But maybe they’re right to have a fit. The 14th Amendment is part of the constitution, and it’s not limited to the rights enumerated in the BoR. Why should judges just waive through all legislation when it tramples on those important rights?

On the other hand, the rights in the 5th amendment are explicitly spelled out, and yet we see mere rational basis review in Kelo. I can imagine a hypothetical honest version of living constitutionalism, but the real-world version definitely seems like dishonesty at best.

“But if that’s their case, they’d have to apply that to all operations, of any kind, and they don’t. They single out abortion, which goes against several areas of the Constitution, with the Equal Protection clause being the most obvious.

They don’t get to pick just one (legal) thing they don’t like and make it as close to impossible to do as they can. ”

Nope, under a rational basis test they absolutely can do that. Rational basis testing is super-prevalent in the Equal Protection cases whenever you don’t want to disturb an arguably (or even obviously) discriminatory practice. In fact, I may be getting my history wrong but I’m relatively sure that it started in equal protection jurisprudence. Rational basis means that if the legislature asserts a possible connection and it isn’t a logical impossibility, they win unless you can affirmatively prove that it is pretextual. I don’t mean suggest, I mean you had better have transcripts which say “we know that this won’t improve safety at all but we are going to pass this law anyway just to interfere with abortion rights”.

Now that doesn’t happen with abortion rights, because the abortion clause of the Constitution is one of the clauses that living constitutionalists want to protect so rational basis doesn’t apply. But if you applied the rational basis test to the abortion laws in Texas that were just before the Supreme Court, they would pass.

“But if that’s their case, they’d have to apply that to all operations, of any kind, and they don’t.”

I agree with you that this is how the court should approach the Texas regulations.

But that’s not rational basis review. You are now applying a much stricter standard, intermediate scrutiny at least, and pointing out that the regulations are radically under-inclusive compared to their ostensible purpose, so they should fail. (We could also add that the real purpose of this law isn’t health).

Instead, rational basis review just asks whether the law is rationally related to any government interest, regardless of whether it was the government’s actual intent when passing the law. Also, the state doesn’t need any evidence to support the law, and it doesn’t matter if the law is overinclusive or underinclusive. To quote wikipedia:

Rational basis review is not a genuine effort to determine the legislature’s actual reasons for enacting a statute, nor to inquire into whether a statute does in fact further a legitimate end of government. A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur.

If the Supreme Court were to apply rational basis review to abortion laws, every regulation of abortion – including banning it altogether! – would be upheld. Fortunately, it doesn’t apply rational basis review to abortion – the controlling case is Casey, which requires a kind of intermediate scrutiny.

But other rights really do only receive rational basis review. When the State of Connecticut wanted to confiscate Susette Kelo’s house to turn it over to private property developers, Breyer and Ginsburg (who are certain to vote to strike down Texas’s abortion laws) said that the decision should only be subject to rational basis review. So why the discrepancy? If Connecticut wants to restrict Ms. Kelo’s ability to have an abortion, Breyer and Ginsburg will (rightly!) make sure it has proper reasons. If Connecticut wants to take her house, they’ll wave it through on a nod and a wink.

The reality of living constitutionalism is an ugly one.

Sebastian H is overusing his “living constitutionist” strawman, here. If the “rational basis” test did not apply to abortion rights then there would be no basis for the Texas Legislature to use the pretext of health and safety in pursuit of ways of practically prohibiting abortion.

No Bruce, you are wrong when you say “If the “rational basis” test did not apply to abortion rights then there would be no basis for the Texas Legislature to use the pretext of health and safety in pursuit of ways of practically prohibiting abortion.”

They use the pretext because they need it to get past the intermediate scrutiny test which is a totally different and much harder test. Please note that I’m not even remotely defending the Texas legislature. I’m pointing out that their obvious pretexts would be more than enough to get to “constitutional” under the rational basis test. Obvious pretexts that aren’t logical impossibilities are fine under the rational basis test.

confusing confiscation with eminent domain

Eminent domain is when the government confiscates your land. Pretending otherwise is never going to convince anyone who isn’t prejudiced. But how shocking to see steven johnson, of all people, quibbling over word use rather than addressing a single substantive point. Will wonders never cease!

Having reread Balkin’s law review article “Commerce” it seems to me that he makes a conceptual error suggesting that if a word has a multiplicity of meanings, it MUST mean all of those things at once every time anyone uses it. That isn’t how language works, “intercourse” means a lot of different things and almost no-one means all of them all at once. If he wanted to suggest that ‘commerce’ meant a wider variety of things than strict money-based transactions, he is right. If he wanted to suggest that it sometimes meant interpersonal relations, he is kind of right but not nearly to the extent that he seems to be implying. I’ve read LOTS of texts from the same period, many of them fiction many not, and my impression is that the zone of ‘commerce’ is wider than what we think of ‘commercial’ but not nearly as wide as he is saying. If you were wealthy you might commerce with someone in the next town by paying a visit to them to discuss marrying your son and their daughter but you wouldn’t commerce with your father when watching a play. I wonder if it isn’t because he is taking a narrow view of ‘transaction’. We don’t think of marriage from a transactional point of view very publicly anymore but seeing the marriage of two houses as commerce makes sense from that point of view.

However, the idea of commerce that tracks well to ‘commercial’ is a definition that is common for the time. The question isn’t “Was commerce sometimes used to mean more than we might think?” but rather “Was commerce used HERE to mean more than we might think?”. The answer is still yes, but probably not the “to infinity” definition that Balkin is advocating for. Contextually that is suggested by the how people acted with respect to the commerce clause. There were contemporary political controversies surrounding Congressional power which would have come out VERY differently if the commerce clause were really understood to be as broad as Balkin says. The most obvious one being alcohol prohibition. Prohibitionists had the votes in Congress to get it through if anyone had thought Congress had the power. But no one thought Congress had the power. Everyone understood that if you wanted to have a federal prohibition on alcohol you needed a Constitutional amendment to grant Congress the power.

I understand that lawyers hide behind unnecessarily complex terms of art. I’m trying to help you understand it, not cause further problems. :)

My point on the rational basis test is that it isn’t a balancing of interests. It is literally a complete abdication. It says “if the legislature says so, that’s good enough for us” unless what they say is complete harble-garble. It is the other side of living constitutionalists willing to bend over backward to create new rights, they also will pretend not to see established ones if they don’t like them. The legal realists see the Court as just another extension of party politics and they say it is a good thing.

Corey you’re being an asshole again. We were having a relatively productive discussion and you are trolling it.

I know who Balkin is, he has written extensively on Constitutional interpretation which is an area that I’m very well versed in. I’ve read many things that he has written. I can’t help that I haven’t read a book that I haven’t read. I noted that he essentially disagrees with everyone in the field, including a large number of historians and a large number of jurists on both sides of the issue, which you can take or leave as you like.

You’re also taking two comments made at different times as if they were made at the same time. One was before I re-read his six year old article which I read six years ago, and one was after I re-read it. After I re-read it I commented on what I thought one of the key weaknesses was.

Did you need an apology that I was wrong in remembering how stridently he construes the commerce clause? I’m actually quite sorry that I misremembered how stridently he construes the commerce clause and I’m sorry that I suggested you misconstrued what he said. I’m more sorry because it makes him look like someone who is willing to let his ideology override his scholarship, and I don’t like to think of him like that. But his other scholarship is pretty good, including most of the stuff I disagree with so I just have to remember that we all get carried away sometimes.

He’s almost certainly wrong, even every other major living constitutionalist thinks he is wrong much less all the major textualists. I outline why I think he is wrong pretty clearly, which if you weren’t trolling you could have responded to.

Corey you’re being an asshole again. We were having a relatively productive discussion and you are trolling it.

No, look. It’s not a productive conversation because you aren’t learning anything and you have nothing to teach people. It’s also a deeply unpleasant conversation, almost entirely on account of your own choices, and people are disengaging.

See this:
Did you need an apology that I was wrong in remembering how stridently he construes the commerce clause?

Yes. Yes he does. Because that’s the polite thing to do and because that improves communication. Your behaviour here? arsehole behaviour. But everything you write is like this; getting admissions of error is like pulling teeth, and all the time those who are trying to help you get a torrent of abuse.

So noone shows up to disagree with you, and you think that’s some sort of validation. Probably your entire life is — has been — like this, with the net result that most of the validation you think you’ve received has just been strategic withdrawal, and pretty much all the errors you’ve ever made remaining uncorrected until today. Not a lot we can do about it, either; we’re not paid to, it’s not worth us putting up with the defensive poop-throwing for the amount of time it would take us to get you to correct even one of your many mistakes. Even the professionals would have a hard time.

Sebastian: If you don’t want to be treated like an asshole, if you want to have a genuinely productive conversations, here are some simple guidelines.

First, don’t throw around phrases like “anyone who knows anything.” Not only is it rude — it insinuates, if not outright declares, that someone who teaches constitutional law, has published research on it, etc. is a complete and utter ignoramus — but it’s also foolish and inevitably based on a misreading. Take the issue of police powers and the Framers that you raise: No one, not Balkin, not me, is saying Congress has “general police powers for everything.” What I said quite clearly is that Balkin believes that the Commerce Clause, even within the parameters of its original meaning, should be interpreted to allow for a consideration of the effects of crime and family law on interstate commerce. (And Balkin has a whole reading for why that’s the case. Do you really think he doesn’t know about the Framers’ views on police powers?). So the general rule here is: if something that someone like Balkin is saying sounds preposterous to you, make sure you’ve understood it first. And certainly before you start throwing around obnoxious phrases like “anyone who knows anything.”

Second, don’t accuse someone of misunderstanding or misreading a text when by your own admission your accusation is based on a six-year-old reading of the text that you’ve since forgotten. Instead, say something like, “Hey, you know, that’s interesting what you say. I read Balkin years ago, and I don’t remember that. Any chance you could give me some more context or tell me where he says that so I can check it out?” You see how easy that is? How much it preserves good feeling and friendly relations?

And, last, after you act like a jerk to someone, violating rules 1 and 2, don’t turn around and act surprised or offended when they treat you like a jerk.

Sebastian H: “Balkin is well respected but essentially no one in the field, on any side, agrees with him.”

You see, you’re doing it again.

Off the top of my head, heres’s a short list of legal scholars who agree with Balkin: Andy Koppelman, Akhil Reed Amar, Neil Siegel, Robert Cooter, Keith Whittington (last time I spoke to him, I haven’t read what he’s written on it, if he has, of late), Donald Regan, Scott Lemieux. Not to mention Ruth Bader Ginsburg and the justices who joined her opinion in the Obamacare case.

It’s no great sin to be wrong. But when you package your wrongness with such obnoxious assertiveness — and implicit or explicit accusations that your interlocutor is just off his or her rocker — that’s where the asshole thing really kicks in.

P.S. The article The Death of the Author was by Roland Barthes, of course, and influenced Derrida. In case what I wrote above was ambiguous. But you knew what I meant ;-)

“Off the top of my head, heres’s a short list of legal scholars who agree with Balkin: Andy Koppelman, Akhil Reed Amar, Neil Siegel, Robert Cooter, Keith Whittington (last time I spoke to him, I haven’t read what he’s written on it, if he has, of late), Donald Regan, Scott Lemieux. Not to mention Ruth Bader Ginsburg and the justices who joined her opinion in the Obamacare case.”

I think it is possible that one of us isn’t understanding the other. The statement you’re objecting to is “Balkin is well respected but essentially no one in the field, on any side, agrees with him that there wasn’t a break in the commerce clause understanding between the way it was seen before Wickard or so. ”

There are all sorts of well respected constitutional scholars who think that the commerce clause currently says that almost anything goes, that it is ok that it currently says that almost anything goes, that the way it changed to say that is fine, and that Lopez was wrongly decided. I have no trouble with that.

The consensus position of the textualists is dealt with above, so I won’t waste more time on it unless you specifically want to.

The consensus position of the living constitutionalists is the Ackerman position, agreed with by Laurence Tribe (as Balkin notes in his own article) that the decisions in and around Wickard represent a break from earlier understandings of the clause.

The consensus position of both sides makes sense not only in the context of strict analysis of the words, but the context of how economic regulations played out in the the hundred or so years before that supports it. This is especially true with respect to the alcohol prohibition, which would have taken a completely different turn if it were believed that Congress had the power to outlaw in-state production and distribution without a Constitutional amendment. As in-state production and distribution clearly falls within Balkin’s definition of “commerce” it is very challenging to believe that any of the major players in the prohibition debate understood it under his definition during the period 1820-1920. The Women’s Christian Temperance Union and the Anti-Saloon league both focused on individual state legislatures, and pivoted to an amendment when trying for prohibition on a national level.

Of those you mention:
Koppleman has written extensively about how the broccoli hypothetical is silly because he doesn’t think slippery slopes are a good objection. He is definitely a supporter of the modern interpretation of the commerce clause. I haven’t seen any writings in which he says that the modern interpretation wasn’t a break from the earlier interpretations.

My readings of Amar are not deeply extensive. I have seen him argue that the framers originally thought to make it ‘affairs’ though it actually became ‘commerce’ by the end. He has some argument that we shouldn’t believe they really meant ‘commerce’ because of the compound nature of the clause, but I don’t recall it deeply. I have seen him argue for a more expansive historical definition of ‘commerce’ at the time of ratification. I have not seen him suggest for example that it would have been ok under the pre-1920s definition for Congress to outlaw alcohol without an amendment, nor have I seen him explain why pre-1920s Courts seemed to think the clause was not ‘affairs’.

Neil Siegel certainly believes in an expansive commerce clause under his “collective action” rubric, but I have never seen him suggest that the common judicial understanding did not radically change between the 1800s and the middle of the 1900s.

I don’t think I know anything about Robert Cooter’s theories outside of his colloborations with Siegel. (Isn’t it weird how sometimes one person becomes the seeming face of a colloborative effort?)

All of the writings I’ve read of Whittington (I’m thinking two or three) were about the difference between interpretation and construction, with the idea that some clauses are essentially meaningless until given meaning by political choices and various arguments about those political choices. If I’m recalling correctly he is a strong supporter of expansive readings of the commerce clause, but I don’t recall any suggestion that there wasn’t a break in the constructions on or around Wickard. If pressed I would have said in fact that he used it as an example of how constructions changed, which would tend to support my statement, but I couldn’t find anything in a quick search.

All of the things I’ve read by Donald Regan suggest that he is more concerned about protectionism and the commerce clause, or when commerce regulations regarding discrimination need to deal with in-state actors. He strikes me as friendly to an expansive reading of the commerce clause, but not nearly as expansive as the others. He definitely agrees with the consensus that there was a break between pre and post 1937 theories about the commerce clause:

Almost sixty years after the “revolution” of 1937, we still do not have an adequate theory of the commerce power. The Court was right to abandon the theory of dual federalism epitomized by Carter v. Carter Coal Co., and it has got the right results in the major cases decided since then. But our post-1937 theory, whether before or after Lopez, is a mess. On the one hand, we have a collection of doctrinal rules that, if we take them seriously, allow Congress to do anything it wants under the commerce power. On the other hand, we continue to pay lip service to the idea that Congress’s power is limited.

[How to Think about the Federal Commerce Power and Incidentally Rewrite US v. Lopez 1995]

In short I’m pretty sure you’re wrong about Regan at least.

Scott Lemieux is definitely a hard legal realist. So far as I can tell he believes that the Court can and should do anything it think won’t cause a revolution. But even from him I’ve never seen a hint that there wasn’t a huge change in and around Wickard. He is fully supportive of the change, but not claiming that there wasn’t one. It is of course dangerous to speculate, but the idea that there was a change and it illustrates how the Court is just a political creature sounds more like something he would say.

I’m not sure where you find support for the idea in Ginsburg’s opinions. She certainly supports the post 1937 structure. I don’t remember seeing her suggest that there wasn’t a break in the jurisprudence around that time. Are you talking about Burwell?

“I’m saying that all these scholars agree with Balkin that the collective action understanding of the Constitution and the Commerce Clause in particular is not a 20th century innovation but is instead part of the original meaning of the text itself… Siegel begins with a description of the collective action problem at the Founding moment, particularly around the question of commerce, and articulates the Constitution’s solution of that problem at that Founding moment, and says that theorists of the Constitution like him, Balkin, Amar, and the others (he includes Regan here) — that all of them are working within that framework that the Framers articulated. He, like Balkin, puts a lot of emphasis on Resolution 6 of the Virginia Plan, which articulates the Collective Action problem.”

I have real trouble agreeing with your characterization. Regan reaches almost precisely the opposite conclusion from Balkin regarding the sixth Virginia Resolutions. He discusses it, agrees that it identifies the collective action problem, and agrees that we should read the clause in light of the collective action problem. He then says “The mere fact of an enumeration of powers makes it clear that the federal government’s powers are meant to be limited. Furthermore, if we tried to figure out from the specific grants what the principle of inclusion was, we would surely come up with something like the Resolution… Attending to the idea embodied in the Virginia Resolution will tend to narrow somewhat our present view of the commerce power …[edit !!!!!!] I have no desire to take us back to the specific ideas of the Framers abour what the federal government should do in 1787, when the economy and the nation were very different. I do not even want to take us back to 1936. In my opinion, the federal regulatory programs of the New Deal era and beyond are all easily defensible, at least in their broad outlines. There have been excesses, both around the edges of some of those programs and in such frolics as the Gun-Free School Zones Act, but I am far from being an opponent of federal power.”

But the key here is that he sees the ennumeration as limiting, while Balkin constructs it as precisely the opposite. He is speaking broadly from the living constitution camp and still doesn’t suggest the open license that Balkin suggests. He suggests that Balkin’s camp is engaging in frolics.

I’m glad you had me re-engage Regan after at least a decade or more since I last thought about him. On re-reading he seems to be a living constitutionalist with at least some awareness of the dangers of excess in the method.

Donald Regan’s “How to think about the Federal Commerce Power and incidentally rewrite US v. Lopez” is a very good article of the type where I disagree with his approach but appreciate that he is grappling with the tough problems in ways that seem rare for the current living constitutionalist style. It can be found here

Okay, so now we’ve really narrowed the claim to this: whereas Donald Regan does agree with Balkin that the Framers articulated a collective action understanding of the Commerce Clause, he doesn’t agree that that authorizes a more expansive conception today of the Commerce Clause.

We’ve gone a considerably long way from the original claim that “Balkin is well respected but essentially no one in the field, on any side, agrees with him that there wasn’t a break in the commerce clause understanding between the way it was seen before Wickard or so.”

If the question now is whether Regan agrees with Balkin, I’d say it’s time to move on.

I think perhaps the larger issue here is that I tend to see originalists argument as dominating more of the scene, including on the left. I can’t remember if it was Dworkin or Tribe who said, ca 1997, “We are all originalists now,” but the point remains salient. What was once a strictly conservative way of interpreting the Constitution has now become a liberal approach as well. Balkin is probably the most important and significant, but we see evidence of originalism’s migration across the spectrum in multiple places. Just read Stevens’s concurrence/dissent in Citizens United, the part that opens “Let us start from the beginning.” In fact, he calls that section of his opinion “Original Understandings.”

When I hear all this talk about living Constitutions, I feel like I’m being transported back to 1987 and Robert Bork is pounding the podium against the legal left, part of which was inspired by Brennan’s living constitutionalism. The world, including the legal left, has moved on, considerably, in the last 30 years. Perhaps we in the Crooked Timber commentariat can, too.

So you’re counting the person who talks about the revolution of 1937 as someone who agrees that there wasn’t a break around 1937? That’s a bit hard to follow.

Everyone agrees that the Founders thought that the Commerce Clause was part of how you deal with collective action problems. The question is to what extent. Surely we don’t count Scalia and Thomas as agreeing with Balkin right? Balkin doesn’t limit himself to collective action problems either. He says that commerce is broad enough to count essentially all human intercourse (thought probably not intercourse…).

Again the actual history of state/federal interactions in the the pre-1937 period strongly problematizes the theory that ‘commerce’ meant everything that Balkin says it did. Claiming Regan as support for Balkin’s theory seems to take ‘support’ in a very freeform way. They seem to diametrically oppose each other on the implications of ennumeration. They seem to strongly oppose each other on the importance and meaning of the actual word ‘commerce’. Now they are both living constitutionalists of different stripes, but lots in the living constitutionalist camp believe there was a break in the 1930s.

Those who want to assert that there was a break before that, only to get broken back in 1937 have a lot more trouble pointing to cases that were thought of as a break at the time. They can show cases where the limited rights were affirmed, but there doesn’t seem to be some sort of understanding at the time that this was the major break that it should have looked like if Balkin’s theories were generally correct.

I guess you can complain about Republican hypocrisy on the eminent domain issue, but the Democratic position is that private property shall be acquired by eminent domain for private commercial enterprise if someone in the government deems there to be some public purpose to the acquisition without any limitation on who the private actor is. The Republican version has too many loopholes, but the Democratic one is wide open.

“There’s no real making sense of something fundamentally false to reality.”

Right wing ideology is a myth machine. Thanks for reminding us of the massive expropriation of Native Americans, which none of the right wing property fetishists considers improper. Yes, I know, the Natives didn’t think of land as property, but that doesn’t mean it wasn’t stolen by the federal and state governments.