What Now?

Corey Robin, a year ago.

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

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

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

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

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

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

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

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

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

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

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

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

Kiss “political fairness” goodbye mates!

*yeah, right

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

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

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

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

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

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

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

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

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

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

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

Be happy.

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

Match that.

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

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

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

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

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

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

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

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

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

@18 You’re not getting it.

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

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

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

You’ve got Trump right where he wants you.

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

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

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

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

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

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

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

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

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

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

Right??

Perspective, people.

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

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

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

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

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

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

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

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

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

Never underestimate the Republicans.
Never overestimate the Democrats.

Raven Onthill

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

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

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

Why?

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

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

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

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

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

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

@stephen

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

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

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

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

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

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

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

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

This is the opening sentence of the OP:

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

I think you have failed to comprehend your own writing.

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

SC decisions are not the Constitution.

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

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

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

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

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

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

Old-fashioned, true-blue

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

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

JH, thanks for the TNR Posner.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hey Skipper

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

How do you explain this fact?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That’s it from me, John. Cheers!

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

How do you explain this fact?

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

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

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

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

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

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

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

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

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

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

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

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

Hey Skipper –

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

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

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

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

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

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

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

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

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

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

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

Skipper@76

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

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

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

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

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

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

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

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

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

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

politicalfootball@83:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JH@95:

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

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

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

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

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

Hey Skipper @89:

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

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

And your response:

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

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

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

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

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

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

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

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

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

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

Thanks for accurately summarizing what I wrote.

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

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

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

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

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

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

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

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

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

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

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

Hey Skipper! –

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

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

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

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

Hey Skipper (=Jeff Guin?)

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

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

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

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

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

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

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

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

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

Hey Skipper

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

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

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

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

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

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

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

Okay.

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

No, it doesn’t.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No, it isn’t.

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

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

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

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

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

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

I forgot to add this:

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

You should stop putting thoughts in my head.

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

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

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

…

[emphasis his]

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

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

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

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

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

All of these are claims of positive right.

Skipper,

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

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

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

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

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

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

Hey Skipper: “No, it isn’t.”

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

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

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

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

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

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

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

Yes, there is a fourth possibility:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Heh.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

James Damore

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

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

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

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

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

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

…

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

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

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

Both are cases of considerable legal argument.

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

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

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

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

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

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

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

Once more, embrace the power of the direct quote.

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

[John Holbo:] “James Damore”

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

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

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

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

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

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

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

Again, happy to oblige.

Quotes in which you deny merit in Obergefell:

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

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

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

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

@HeySkipper

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

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

Hey Skipper

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

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

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

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

[Layman:] If the text is all …

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

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

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

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

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

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

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

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

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

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

It sounds like Originalism contains multitudes.

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

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

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

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

@Orange Watch
Glad it was helpful.

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

So I repeat: rack off.

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

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

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

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

I’m surprised this conversation is still going on, but I’ll take my swing at it. . . .

Not to be too obnoxious, but Hey Skipper’s defense of originalism looks, to me, like a perfect example of Mencken’s description that, “For every complex problem there is an answer that is clear, simple, and wrong.” I feel like it offers an answer which looks easy because it simply denies that the difficult parts of the problem are difficult.

I’ll try to ask my version of the question that other people are asking:

Hey Skipper, you say of criticisms of Obergefell, “I am simply echoing their conclusions, which I happen to find persuasive.” What would you do in a case in which you found multiple arguments persuasive? Presumably you would need to find some way to balance them.

As far as I can tell (and correct me if I’m wrong), to find originalism a decisive doctrine you not only need to think that the meaning of the text should be paramount, but that we can consistently find a meaning in the text which can be shared and agreed upon (it doesn’t provide any clarity if you insist that a given position is clearly supported by the text, and nobody else agrees with your interpretation). I don’t think that’s possible.

Personally, I’m a “living constitutionalist” myself, but I still find appeals to the text of the constitution persuasive, I just happen to believe that, in most interesting Supreme Court cases, there isn’t a clear, decisive answer available from the text, so that becomes one avenue of persuasion among many, not the only factor. Even if I thought that the text would provide a clear direction in 70% of cases that still leaves plenty of room to disagree (and if you and I disagree about which 30% of cases are textually ambiguous we could be arguing about most cases).

Let me stop here and say that you should feel free to tell me that I’m wrong in my assumptions and that you also believe that the meaning of the text is only clear in 70% of cases, and that you are completely open to the idea that in 30% of cases judges will have to find some other criteria on which to make a decision.

But, if you think that it’s not that difficult to read the meaning in the text, and that the vast majority of cases should be decidable without recourse to any other standard of judgement, then I’d ask you about a different case than Obergefell or Heller. What do you think of the recent Washington v. United States? It’s a fairly simple from this perspective in that there’s clearly a controlling text (the treaty in question) and no pesky questions about natural law or individual rights. It’s just a question of what actions are or aren’t mandated to comply with the text.

It also happens to be a rare tie, in that the Supreme Court split 4-4 on the decision, and we don’t know how any of the individual justices voted.

So, which direction would originalism point you in that case?

[John Holbo:] Why should a reasonable person be aghast at Obergefell discovering a ‘fundamental right’ that isn’t there in black and white, yet be completely reassured upon being told that the thing uncovered in Heller – which also wasn’t there in black and white – was a matter of ‘natural law’. Suppose we simply re-branded the fundamental right result in Obergefell as a ‘natural law’ result. Would that suffice to wipe out the stain of activism?

Well, except that it is there in black and white, and there is precedent, and historical bases for the 2A.

But never mind that. Say I agree that Obergefell is as soundly reasoned as Heller, or the other way around.

Fine. That means the 2A is incorporated, right?

[J-D:] Also, for the record, here again are the exact words of your point-blank refusal to answer it:

I can see why I refused to answer it. It is a stupid question.

Judges have, in fact, legislated from the bench. Whether you think Obergefell (or Heller) was an example doesn’t matter to your question, unless, by asking it you are rhetorically asserting judges have not, ever, produced decisions that accorded with their desires and not the Constitution or precedent.

Legislating from the bench isn’t necessarily dishonest or incompetent, but that doesn’t make it a good idea.

Why are we seeing so many originalist arguments about the 2nd amendment? For a living constitutionalist why not just say “Hey they ignored parts of the text because that’s ok, judges are allowed to change the meaning of the Constitution over time”? When people talk of overruling Roe why not just say “times have changed since 1973 and the Constitution now allows laws like France or Sweden where they ban elective abortions in the 4th or 5th month instead of the 7th and that more than 65% of the population thinks is a good idea”? Why do living constitutionalists act as if the Constitution can only change in liberal directions? So judges drastically changed the Constitution in one way under the Warren Court and in another way now. You can say “I disagree politically with that ruling” but you’ve undercut your ability to say “that ruling is Constitutionally incorrect” when you can’t articulate what ‘constitutional’ means other than “we got 5 Justices to vote for it”.

I think that professionalism is the best we can hope for. Professional ethos really is a thing. In my version you can have a professional ethos which says something like “we should strive to follow understandable rules of interpretation and when possible defer to the legislature unless it clearly violates the Constitution”. Humans are human so we can all agree that they don’t live up to the ideal world. But at least in my version we understand what they are aiming at even if they can’t do it perfectly.

I don’t understand what you think living constitutionalists ought to be aiming at that is different from what a legislature or administration does. They can’t even try to be professionally restrained because under your definition its just their job to try to advance their political agenda. So why let them overrule the legislature at all?

It’s the same reason we always argue against conservatives Sebastian: because they’re wrong ethically or politically AND they’re hypocrites AND they’re full of shit.

For example Trump paid 1.6 million to a playboy bunny to have an abortion buy is going to choose an anti abortion supreme Court judge.

For example “originalists” argue we should follow the text of the constitution but then ignore the text of the 2A to advance the interests of their Russian funded gun loving mates, but then make up further bullshit to ensure nobody can get tanks or form private armies that might challenge their rule.

You’re wrong on the politics, wrong when you implement your own ideas, and hypocritical to boot. That’s why we can argue for a living constitution art he same time as we can argue originalists are wrong.

Sebastian H: “I don’t understand what you think living constitutionalists ought to be aiming at that is different from what a legislature or administration does.”

I haven’t thought about this extensively, but I’ll give you my answer. I think judges should engage in legal reasoning, and make arguments based in some shared understanding of (a) the constitution, (b) accumulated case-law and precedent, and (c) an evolving and shared sense of what it means to be humans living together in civilization. It is in the last two that I see room for constitutional interpretation to grow and shift.

For example, if the supreme court were to decide that it was unconstitutional to keep prisoners in solitary confinement for more than 20 consecutive days or more than 40 days in a year that would (a) be a clear change in constitutional interpretation which was (b) based on the “cruel and unusual” clause and (c) informed by decades of research showing the harms of solitary confinement. In my mind that’s an easy case in which our changing knowledge could lead to changes in the law.

Similarly, I am sympathetic to a judge who says, given their current understanding of human experience, that allowing same sex marriage is required based on the equal protection or due process clause (I recognize that this is less clear cut, but I think it’s a clear argument involving (a), (b), and (c)).

I wouldn’t be okay with a judge saying, for example, that there is a constitutional requirement that employers allow votes on unionization at least once every 8 years (based on freedom of assembly), even though I might support that as a legislative goal, because I don’t see a strong legal argument supporting it (based on the existing understanding of the constitution and case-law).

All of those examples are off the top of my head, and I’m sure you could quibble with any of them, but I would definitely say that judges should be aiming at something other than the goals of a legislature.

Sebastian H: “Why do living constitutionalists act as if the Constitution can only change in liberal directions?”

Oh, if only there were a post on Crooked Timber which expressed dismay at recent Court decisions, decisions which can surely be described as ‘conservative living constitutionalism’. What a comment thread that would be. Sigh.

Seb:

If you admit there is such a thing as professionalism, and that it should be a guiding force in this matter, it’s a bit disingenuous to suggest there’s nothing that a living constitutionalist can be an extremist with regards to.

Textualists can use their philosophy as a bulwark against accusations of lack of professionalism, and said philosophy dictates that following it cannot be extremist. I’m not seeing how this should reassure us that they will be more inclined to critical self-reflection and restraint unless we assume that by stating they must be restrained they necessarily will be restrained. Originalist conduct in practice very quickly gives lie to that assumption.

John “‘Originalism’ allows for a fig leaf that covers stuff, the sight of which would horrify too many people, if exposed. I favor more openness about what is really going on. The ‘noble lie’ approach is unstable.”

On some level I suppose I agree with you, in that hiding the ball during the Burger Court led to an enormous counter-reaction. I don’t share your suggestion that living constitutionilists are particularly open about what is going on. They nearly always pretend to be meekly going along with what the nation really thinks.

You ask which case seems the most dishonestly activist. I’d say the most honestly activist case is probably Brown v. Board of education. It openly said “this isn’t the application of the 14th amendment that was expected at the time of writing, but it is fully in line with actual words of the amendment”. I’m open in theory to the idea that expected application doesn’t hold the force of at-the-time-understood-meaning-of-the-phrases, so while it was openly activist, it wasn’t a naked display of judicial power.

The most dishonestly activist major case is probably Roe v. Wade. There the majority blatantly overrules the very common law that it grounds itself in that idea that abortion law distinctions make moral sense at around the time of quickening (16-20 weeks, an opinion shared by such horrific countries as France and Sweden and about 65-70% of the population of the US even now). It overruled abortion laws in almost every state of the union. But it hides behind the fig leaf of discovering a new fundamental right to have an abortion that had apparently always existed in the right to privacy. Even accepting that the right to privacy includes a right to abortion (something which apparently didn’t occur to anyone before despite their long line of privacy cases), no care is taken to explain how a fundamental right which apparently allowed regulation against abortion at around the time of quickening through early US history got transformed into a right that didn’t allow serious regulation until much later. Even their rather strained theory that the right to abortion was part of a fundamental right would place it in the “so rooted in the traditions and conscience of our people as to be ranked as fundamental” category. That would argue for restoring the older version of the right to abortion before quickening. If they had ruled THAT was the constitutional right (in the sense of cannot be overruled without amendment) I would say that they were on much firmer ground. (Also in terms of legitimacy, they would be agreeing with almost 80% of the population) But instead they didn’t allow the states to worry about fetal health until the six month (a line that about 25-30% of population agrees with) based on, ummmmm, well that isn’t clear.

That line of cases also highlights a favorite tool of living constitutionalists which is to have an initial ruling that claims to be deeply grounded in one thing, and then have a follow up ruling that uncomplicatedly ignores all that and extends the ruling somewhere else using the fig leaf of logical extension. The classic case of that is Griswold going into Eisenstadt. (To be clear I think that both cases can probably get a well reasoned judicial result from much more textualist readings, my point is that living constitutionalists don’t feel constrained to bother with that). Griswold goes ON and ON and ON about how important the bedrock idea of marriage as a well-existing-before-the-Constitution institution is important to their ruling. Seriously, read it!

“To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever.”

“Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family — a relation as old and as fundamental as our entire civilization — surely does not show that the Government was meant to have the power to do so. ”

“Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . , but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which, always and in every age, it has fostered and protected. It is one thing when the State exerts its power either to forbid extramarital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.”

“In sum, I believe that the right of privacy in the marital relation is fundamental and basic — a personal right “retained by the people” within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States. I agree with the Court that petitioners’ convictions must therefore be reversed.”

“These decisions affirm that there is a “realm of family life which the state cannot enter” without substantial justification. [citation omitted] Surely the right invoked in this case, to be free of regulation of the intimacies of the marriage relationship,
come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.”

Eisenstadt waves away the entire martial underpinning of Griswold with “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Now I’m open to the idea that a good tour of privacy understandings could get me to agree with that statement. But the arch-living constitutionalist (Brennan) just pretends that this is an uncomplicated and tiny extension of a case that was allegedly deeply and repeatedly rooted in the idea of traditions of marriage going back 1,000s of years. It would be as if you had a proof of A proves B, C is anti-A, therefore B proves C. That style of reasoning doesn’t seem more like the noble lie you’re worried about rather than openness about what is going on.

Harlan’s Plessy dissent > Brown v. Board of Ed majority

“Are you, Sebastian, willing to accept the entirety of French law on abortion, in its current state, as the legal regime in the United States? Yes or no, please. I’ll wait.”

I’ve studied it extensively. I would absolutely 100% say yes. Including the state provision in the first trimester, and the almost impossibility of elective abortions after that. You didn’t even have to wait long. ;) Do you have a substantive point now that you have your answer?

But Sebastian don’t originalists think state funding of any healthcare is unconstitutional?

And yet, Sebastian, Scalia consistently opposed the ACA on the basis of that very clause, and ended up saying that Obamcare should be renamed “SCOTUSCare” because the Supreme Court kept protecting the law even though it breached the commerce clause.

Now, you seem to think that Originalists are always right but in this case 2 originalists opposed the other three, and in this case the majority agreed with you. So which of the originalists are incompetent and dishonest, legislating from the bench? The 2 or the 3?

There is a difference between thinking that textalism is correct and thinking that textualists and originalists can get things wrong. Just as there is a difference between trying to apply the text of a Constitution (and sometimes failing) and having arguments which undercut the ethos of even trying.

I’m also still interested in seeing where you are going with the France thing. I hope you didn’t forget about it…

Thomas, dissenting in Kelo.
In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.

Thomas, also dissenting in Kelo.
If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power–for public or private uses–then it would be surplusage. See ante, at 3—4 (O’Connor, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect”); Myers v. United States, 272 U.S. 52, 151 (1926).

Leaving aside the other errors in Thomas’ reasoning (he bizarrely goes on to define “use” with a period dictionary as “to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” and then goes on to insist that this doesn’t include obtaining a property and transferring it to a private entity even though selling something or transferring it in service of a goal is “making use of” a thing) , its worth noting that real world originalism isn’t really “originalism.” There’s no reason whatsoever that a true originalist would care in the slightest about that quote and citation. Nothing in originalism whatsoever is incompatible with a constitutional clause being “intended” to be without effect, and much of it necessitates that the possibility is at least on the table. Drafters of laws, and ratifiers of laws, and voters participating in public discussion regarding laws both before and after their passage, are all capable of writing or interpreting a clause as being without effect, and making “intent” forming decisions based upon that.

Originalism with an overlay of formalism is just a sort of fancy, traditional legal dance. In a way its as valid as any other fanciful legal theory, but its claim to unique warrant is weak.

Originalism also leads to the hilarious idea that one can “fix” the Constitution by amending it to say exactly the same words but with a different time stamp, but we’re not supposed to talk about that- its kind of an embarrassment.

Patrick it’s weird that you’re quoting Thomas as ridiculous when he’s making an excellent point. If eminent domain was to be used for anything, including seizing private property just to give it over to some other private owner, they didn’t need a public use clause in there.

You’re attacking formalism on grounds where it is actually pretty strong.

So Sebastian, originalists are sometimes wrong because they genuinely make mistakes but living constitutionalists are wrong because they are incompetent, dishonest or legislating from the bench?

Think about that a little will you?

Faustusnotes I’m a little reluctant to engage with you any more as you seem to be exhibiting signs of trolling. (See for example your sudden lack of follow up on whatever your French point was when I promptly answered your question). But in case I’m wrong, you say “So Sebastian, originalists are sometimes wrong because they genuinely make mistakes but living constitutionalists are wrong because they are incompetent, dishonest or legislating from the bench?”

No. I’m saying that I understand how to argue that originalists are wrong because I can see what they are talking about. So it is easier to argue that they are ‘betraying their principles’ because they have articulated principles. How do I know when a living constitutionalist is wrong? How do I know when I should suspect them of motivated reasoning? They can always, and often do, assert a changing societal understanding even if the polls aren’t anywhere close to supporting it. What kind of case would cause them to say something like “society has changed in a direction I don’t agree with THEREFORE I must now say the following thing which used to be constitutionally protected no longer is…”? Is that something that a living constitutionalist has ever said?

Patrick, I’m sorry. I really don’t understand what you’re trying to say there. Is Thomas wrong to notice that taking by eminent domain for the purpose of giving it to another private party is not “public use”?

How do I know when a living constitutionalist is wrong?

You… you don’t need to?

We’re a society made up of different people. With different skills and knowledges, expertise; any individual person can have any number of areas they don’t understand and it’ll still work. I don’t know how my liver works, to be honest I can’t even say I know what it does, but that’s OK, there are people who carry that knowledge for me. I can ignore it more-or-less entirely and focus my talents on other things.

I mean, pegging yourself as the limits of the comprehensible, or the acceptable… is it narcissism? or trust issues? Either way I’m sure you’ll acknowledge that much of society is run by people with knowledge you — or I — cannot hope to share. What’s with this issue that you find it impossible to trust the judgement of the better-informed?

The changes in society that might be relevant for living constitutionalism are not always changes in attitudes that can be measured by opinion polls. Sometimes the relevant changes are structural. For example the role of public education in U.S. society changed in relevant ways between 1868 and 1954. Less to do with attitudes than w underlying facts about how the society and economy operated.

Hey Skipper

When Justice Kagan gave her dissenting opinion in Hawaii v Trump, do you think she was doing her job as a judge? If yes, what’s the problem? If no, what do you think should be done about it?

Sebastian, I didn’t raise the French point. So I don’t think I can be trolling you with it. As for your idea that you can’t tell when a living constitutionalist is wrong, allow me to use my favourite suicidal tendencies quote:”just because you don’t understand it don’t mean it don’t make no sense.”

And again, you do the same thing: when an originalist is wrong it’s because they made a good faith attempt at their ideology and failed; when a living constitutionalist is wrong they’re engaging in motivated thinking. This is obviously bad faith arguing. But worse still it’s obviously facile. The current leading constitutionalist in the USA, who will pick a constitutionalist judge, paid a playboy bunny for an abortion. Do you think he got to that point through a good faith attempt to live by his anti abortion principles? No he didn’t but he will pick a judge who is guaranteed to use motivated reasoning to ensure no-one else can get an abortion. A judge who was 200k in debt last year and now mysteriously isn’t, who was nominated by a man who is obviously being g blackmailed. Yet you want us to believe this judge will make a good faith attempt to follow a set of principles? Did you come down with the last shower?

Sebastian H: “Do you have a substantive point now that you have your answer?”

Third try.

I suppose I’d like to hear more about why you would prefer the French regime, given that:

– More than 90% of current US abortions would be legal under the French regime
– Some of the remaining 10% would surely be legal, and some would surely have happened before the 12th week because
– Every abortion would be paid for by the government and performed on demand with no impediments, and
– The government would subsidize a network of clinics throughout the country for the purposes of ensuring people could easily access abortion services, and
– The States would be powerless to impede any of this

This is a recipe for many more abortions, not fewer. That doesn’t bother me, but I assume it does you, and I ask: What is the appeal for you?

Layman, because the abortions would be of fetuses which weren’t developed enough for me to think that they were persons needing to be protected. The only reason that is confusing is because you are making up all sorts of side issues and then attributing them to me.

I, like about 70% of the population, think that the personhood of the developing fetus has gotten complex enough around the beginning/middle of the 4th month to need protection despite the mother’s strong competing rights. I, like about 80% of the population, think that the personhood of the developing fetus in the first three months isn’t complex enough to overrule the mother’s strong competing rights.

Given those two things, it isn’t even remotely shocking that I am not troubled by a policy which has lots of abortions at a time when I think it is ok, and doesn’t allow them during a time when I don’t think it is ok.

The court prescribed the Roe regime. They could every bit as easily allow a 4th or 5th month regime instead of a 7th month one. Congress could take all sorts of possible actions.

All of this could have been possible in the different Democratic ascendancy regimes since 1973. But common sense changes to bring the abortion rules more in line with people’s understanding couldn’t take place because the Supreme Court made them illegal.