My Gripe With "Living Constitutionalism"

by publius

Orin Kerr slyly asks whether Yoo’s torture memo would be accepted under Jack Balkin’s “living constitutionalism” (If you want background, Balkanization has a series of fascinating posts debating this theory). The short response to Kerr, though, is that Balkin’s theory isn’t that “any change is ok.” Kerr’s jab does, however, illustrate a different problem with the “living constitutionalism” theory – specifically, its “brand” problems. In other words, it’s not the theory’s internal logic that bothers me, but the marketability of the narrative. Granted, focusing on such superficial concerns is a bit silly. But we are living in a postmodern world, and I am a postmodern, um, girl.

My fundamental gripe with “living constitutionalism” is that it sounds defensive. More precisely, it seems conceptually rooted in a larger narrative that has been defined by conservatives. In more popular circles, the great conservative legal narrative has been that the Constitution is largely unchanging, and should thus be “interpreted” according to the “true” meaning of the text as it was originally understood. No politics here, no sir’ee Bob.

The critique of liberal judges, by contrast, is that they “legislate from the bench.” Unlike purely objective conservative judges like Scalia, liberal judges read their policy preferences into the text. In this way, they achieve results that liberals could not otherwise achieve at the ballot box. (ed. You mean like Bush v. Gore? No, they were just interpreting there).

Anyway, it’s all a bunch of crap. Constitutional text is indeterminate, and so Justices across the political spectrum have throughout history interpreted text in a manner consistent with their political and policy preferences. They have also adopted interpretative methodologies that (with occasional exceptions) align with their politics. This is all to be expected – Justices are appointed by political officials. (On an aside, and for that reason, the idea that their nomination process should not be politicized strikes me as naïve).

The Great Borkian Fraud then is that conservatives managed to cloak their policy preferences in aesthetically compelling narratives – textualism and originalism. Their policy preferences magically transform into “the plain meaning of the text” or “the original understanding of the Framers.” Liberal judges’ decisions, by contrast, are “legislating from the bench.” Hippie hatred thus provides the foundation of not only American foreign policy, but modern constitutional jurisprudence as well.

All that said, I have a grudging admiration for their efforts. Like Marx and Freud before them, the Borkians have created a universal philosophy that can provide a superficially “objective” answer to any question. The logical and aesthetic power of these narratives has, frankly, pummeled legal progressive narratives in the court of public opinion in recent years. Far too many Americans believe that progressives love nothing more than to change the Constitution in hippie ways, while conservative judges remain dutifully faithful to our Framers’ text.

With this background in mind, you can see why I chafe a bit at the term “living constitutionalism.” To me, it reinforces what has proven a quite successful conservative narrative. The phrase – despite Balkin’s goals and intentions – lends itself quite easily to charges of “liberals want to change the Constitution for political reasons.” To embrace that label (which I consider distinct from the quite impressive nuts-and-bolts of Balkin’s theory itself) is to implicitly reinforce the Borkian critique. In doing so, it gives conservatives too much credit. It implies that conservatives reject a living Constitution, when just the opposite is true. It’s just that they call “living constitutionalism” “fidelity to the original understanding.”

In a sense, though, I respect what Balkin is attempting – it’s rather daring. He’s taking a critique, loading it up with theoretical punch, and turning it back on conservatives. It’s similar in this respect to his embrace of the “originalism” narrative. He’s stealing the narrative and trying to make it his own.

While he’s forgotten exponentially more than I know about constitutional law, I chafe at adopting even the originalism label. These conservative narratives can’t be co-opted – they need to be completely transcended, particularly originalism. With the exception of communism, never before has such a silly theory attracted such intelligent followers. Reading extended, excruciatingly-detailed dialogues about originalism on conservative legal blogs is more like a black comedy. (For instance, from what I can gather, the only texts that are ever at issue involve matters of “construction” rather than “semantic meaning” – so what’s the point? The “four years” clause is never litigated, but “due” process is. To borrow from Larry David, it’s a debate about nothing).

Frankly, I don’t understand why we need constitutional theories at all. They all seem necessarily Procrustean to me. In fact, the phrase “constitutional law” is itself misleading because it covers such an immensely diverse field of topics. Maybe the best “theory” is no theory. Maybe it’s best to do away with them altogether and adopt a “disaggregation” strategy.

Think about foreign policy – we don’t have (in practice) a unifying theory telling us how to deal with different parts of the world. The actions of China call for different responses than the actions of say Burma or Egypt or the Taliban. In foreign policy, we divide the world up into smaller parts and pursue the policy that best fits that unique part of the world.

Why can’t we do the same in constitutional law? (Maybe we already do). Why don’t we spend more time talking about our theory of Fourth Amendment law, or our theory for searches incident to arrest, and less time trying to integrate this diverse field into one unifying theory – or even worse, trying to squeeze this specific area of the law to fit (Procrustian-style) some broad abstract theory.

Comments

[Occasional Observer]

Anyone with the least familiarity with 20th century philosophy -- and I mean analytic philosophy, not pomo deconstruction -- knows that talk of fixed abstruse meanings spanning the centuries gets you next to nowhere. Meaning-talk simply absorbs the questions you would like it to answer.

And yet the insight is old. Officially speaking, the Talmud legitimated itself as a running attempt to recover the oral law claimed to have been given to Moses at Sinai alongside the written law set out in the Torah. It came to be seen, in other words, as an originalist exercise, pure and simple.

Yet a remarkably candid Talmud passage (and it's often candid in this way) tells of God having transported Moses in time from Sinai into a class being taught by the rabbinic sage Hillel. Moses returns to tell God he couldn't understand what on earth they were talking about.

Legitimation through originalism is not hard to poke fun at, least of all from within. The wonder of it is that after all our intellectual efforts to dethrone it, it continues to rear its odd-shaped head more gallantly than ever, and the first thing we've lost in reference to it is our sense of humor.

[GNZ]

Partly to excite some debate - maybe one should go with my position (as a non American I admit).

It can be summarized as "the founding fathers tried their best but your constitution is inferior and your country suffers as a result - you would have a significantly superior democracy if you threw it out and wrote the best bits back into normal law."

All this pussy footing around saying "the constitution doesn't mean that" or "meanings have changed" you can just say "they aren't any smarter than the best minds today and they got it wrong"

[SCearlie]

There is a unifying foreign policy and it comes from some Harvard nuts ught.

As far as Moses, he was using lucifer to do his miracles and God probably wasn't happy. So, he figured he was in hell.

[Hartmut]

To my knowledge the constitution was not "made for eternity" but at least some of the Founders thought that it should be updated* or replaced on a regular base. Admittedly today it would be more or less impossible to draft a new constitution and have it ratified by a necessary high majority (neo-feudalists, anarchists, bleeding-hearters and soulless pragmatists would not unite behing anything, not even the right to breathe**)

*not the same as amended
**breathing air would be seen either as something that should belong to a corporation, the state (or the federal government), the individual etc.

[OCSteve]

Well, you’ve convinced me that we need term limits for the Supremes if nothing else...

[Brett Bellmore]

The big problem with living constitution theory, so far as I'm concerned, is that it deprives us of all the considerable advantages of having a written constitution.

Indeterminacy? Please, that's a bait and switch. Living constitutionalists prove that the meaning of words like "reasonable" is a bit ambiguous, and having established that to their satisfaction, proceed to act as though words like "no" were semantic vessels which can be filled with anything, including "yes". Yes, the Constitution is a bit ambiguous on some points. No, it ain't nearly as ambiguous as you pretend.

[Ben Alpers]

Think about foreign policy – we don’t have (in practice) a unifying theory telling us how to deal with different parts of the world.

Actually during times when the administration in power doesn't provide critics with the sort of world historical foreign policy disasters that this White House has produced (which among other things provides a huge softball for those critical of its approach to foreign policy), hostile pundits often spill a lot of ink on the supposed incoherence of President X's foreign policy. And administrations, in turn, are constantly propounding "doctrines," usually but not always named after the president, that supposedly make their foreign policies predictable, coherent and consistent.

To take one random example, look at this Walter Isaacson piece on Madeleine Albright and Kosovo from the May 17, 1999 issue of Time magazine.

Albright's critics are said to believe that the war in Kosovo is "the latest example of an incoherent foreign policy driven by moral impulses and mushy sentiments, one that hectors and scolds other nations to obey our sanctimonious dictates and ineffectively bombs or sanctions them if they don't." But, Isaacson suggests, it's really a test of "the Albright Doctrine that has held sway since her ascension to Secretary of State: a tough-talking, semimuscular interventionism that believes in using force--including limited force such as calibrated air power, if nothing heartier is possible--to back up a mix of strategic and moral objectives."

This rhetorical reliance of foreign policy doctrines is, in my opinion, much sillier than the felt need for constitutional theories.

[Ben Alpers]

That last sentence should begin: "This rhetorical reliance on foreign policy doctrines..."

(Memo to self: preview is your friend.)

[Brett Bellmore]

Further, "living constitutionalism" sounds defensive? Of course it does! You've got a Constitution that says one thing, courts ruling it means another; This is inherently a situation which has to be defended, and living constitutionalism is that defense, which wouldn't be needed if there weren't an obvious gulf between text and court rulings.

Really, the more I read defenses of living constitutionalism, the more I'm persuaded that the objection isn't to our constitution in particular, but to the very notion of having a constitution that's actually capable of saying "no" to something the objector wants done.

[CharleyCarp]

There's enough ambiguity so that you get circuit splits leading to cert on most of the issues that get to the Supreme Court. It's not really about what this, that, or the other clause means in some abstract sense, but how it applies to the specific set of facts in litigation.

And, as Chief Justice Marshall put it in M'Cullough v. Maryland, you have to keep in mind what it was they were trying to do: not resolve each and every issue that might come up, but to provide a framework for the government.

There are a number of questions I think have been wrongly decided -- and some of them go back to debates in the first or second Congress about allocations of powers. Issues upon which Hamilton and Madison profoundly disagreed, arguing from the same text. Now there's a huge expanse of country between Hamilton's Executive and John Yoo's, but there's also quite a bit between Hamilton's and Madison's. We resolve this not by adopting some kind of marketing-inspired labelling, but by muddling through: approaching each dispute with the text and the common law of the Constitution at hand.

Term limits for justices, just like for office-holders, "cures" the problem by making it worse. Doubling the number of appointments/confirmations isn't going to depoliticize justice. (Just as giving legislators a shorter time to make their mark doesn't make them more attuned to public wishes).

[stonetools]

The real problem here is a matter of successful marketing, not better

constitutional analysis. " Original intent", the " constitution in exile", etc.,

were a matter of brilliant slogans, linked to a compelling narrative. The

founding fathers , who were "men like gods" and "united with one

accord" delivered unto people the Constitution- an unchanging Holy Word,

perfect and spotless, to be treated and read like Scripture. Judges were

appointed to guard the Holy Word and and not change it in any way. But

at some point (1908, 1932 or 1954-the chronicles are in conflict on

this point) darkness came in. Liberal judges were appointed, who twisted

and defiled the Holy Word, the way a filthy reprobate corrupts a young

virgin. However, a band of heroes ( The Federalist Society) have

counterattacked and are working to restore the Holy Word back to its

original purity.
What liberals really need is not better constitutional analysis, but better

slogans and above all a compelling counter narrative that hooks into

American beliefs in the same way as the conservative narrative does.I

think that criticism of the conservative narrative is not enough either.

What liberals need is their own narrative.

[OCSteve]

CC: Doubling the number of appointments/confirmations isn't going to depoliticize justice.

I believe it would depoliticize the confirmation process to an extent. Each side today seems less concerned with getting their guy/gal on the bench than they are horrified at the thought that the other party’s guy/gal will be interpreting “text in a manner consistent with their political and policy preferences” for a couple of generations. Staggered six year terms would provide for some continuity between administrations while still allowing for the overall makeup of the court to change much faster than it does now. And I do think it would help to depoliticize the court overall if they weren’t making decisions that the rest of us are (mainly) stuck with for life. Plus you’d have a hard time convincing me that an 88 year old retains the mental acuity of someone closer to middle age. You have to practically carry them out on a stretcher to get rid of them now.

[Cheerful Iconoclast]

One problem I have with your argument is that saying "the Constitution is indeterminate" does not mean "the Constitution means anything." Plenty of "progressive" constitutional rulings simply cannot be characterized as interpretation of the constitutional text. For example, try as I might, I can find nothing in the Constitution which says states cannot prohibit gay sex. The words of The Constitution may mean many things, but one of them is not "gay sex is a constitutional right."

But let's suppose you are right. Let's suppose we agree that the Constitution is radically indeterminate, so much so that it can mean, well, basically anything. Isn't that an argument for doing away with judicial review? If they're not reading the Constitution and doing what it says, but instead doing what they want while pretending to read the Constitution, why give them that power?

[Gary Farber]

"Staggered six year terms would provide for some continuity between administrations while still allowing for the overall makeup of the court to change much faster than it does now."

A constantly changing SCOTUS, and thus a constantly changing understanding of what appellate law is, strikes me as an extremely wonderful idea if our goal is to raise the number of lawyers necessary to keep the country running by perhaps two orders of magnitude, but the downside of this seems rather high to me.

[Bernard Yomtov]

A constantly changing SCOTUS, and thus a constantly changing understanding of what appellate law is,

I think Gary's fear is overstated. A system that has lots of relatively small adjustments can work better than one that follows strict rules with occasional random and dramatic shifts.

I tend to agree with Steve that limited terms have a lot of merit, though six years feels a litte short. An eighteen-year term is often suggested, and that sounds better to me. Among other things, we don't want a Supreme Court appointment to be a career stepping-stone.

[Turbulence]

Gary,

Can you explain in more detail why you think staggered six year terms would significantly alter the frequency with which lower court decisions were overridden? Also, could you explain what you mean by the phrase "appellate law"? I'm not familiar with that term.

I don't think your analysis is correct given the wide breadth of the SC's jurisdiction and given how few cases the SC can actually process in any one year. If nothing else, I'd like to see you flesh out your analysis for the "two orders of magnitude" estimate since that appears to be completely unsupportable. In general, I try to shy away from using completely fictional numbers in order to buttress otherwise unsupportable contentions.

[rea]

The words of The Constitution may mean many things, but one of them is not "gay sex is a constitutional right."

What does the word, "liberty" mean to you? is it just an inkblot on the Cosntitution? When the drafters of the 14th Amendment said that, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," was that just a bunch of meanignless buzzwords?

[honestpartisan]

You mean to tell me that it was not the original intent of the drafters of the Constitution to implement the 2008 Republican Party platform?

[Sebastian]

"The short response to Kerr, though, is that Balkin’s theory isn’t that “any change is ok.” Kerr’s jab does, however, illustrate a different problem with the “living constitutionalism” theory – specifically, its “brand” problems."

It depends on what you mean by brand problem. The problem is that it attacks the very reason why you bother having a written Constitution. Balkin's theory isn't "any change is ok" of course. But to most non-lawyers it appears that the Court plays by Calvinball rules where the reason "any change" isn't ok is because living constitutionalists get to make up what they want and shove it down our throats.

It isn't a brand problem. It is that judges don't want to enforce parts of the constitution that they don't like. And they want to use their power to enforce their will in areas where the Constitution doesn't speak. (You'll note I studiously avoided saying this problem is limited to one side or the other). They make themselves more powerful at the expense of the more accountable political branches.

But living constitutionalism never explains why we should let them do that. If it boils down to the Constitution meaning whatever judges say (which is what you wrote in the last post) why bother with a Constitution at all? Just let the accountable branches make decisions, get rid of the Constitution entirely, and say goodbye to judicial review.

If you can't find a good argument against that other than "I like parts of the Constitution, I just don't want to enforce the other parts", you have a problem.

[tgirsch]

Sebastian:
But to most non-lawyers it appears that the Court plays by Calvinball rules where the reason "any change" isn't ok is because living constitutionalists get to make up what they want and shove it down our throats.

The problem, as publius points out, is that the so-called originalists don't really do anything different -- they just justify it differently. They still put their policy preferences ahead of the text, and engage in all sorts of legalistic gymnastics to "justify" it. That is, they have better window dressing.

To see why true originalism is a Very Bad Idea, one need look no further than Brown vs. Board of Education, which simply cannot be justified on originalist grounds. Not no way, not no how. If your constitutional theory can't support that ruling, then in my estimation, it's a lousy way to run a country, no matter how high on the hog it might ostensibly be from a purely academic perspective.

[Gary Farber]

"I think Gary's fear is overstated."

That certainly may be true.

"A system that has lots of relatively small adjustments can work better than one that follows strict rules with occasional random and dramatic shifts."

I don't disagree, but our system of SCOTUS weaving back and forth on a number of issues -- though certainly there are more quotidian cases than those that make for major changes in interpretation of law -- has always drawn many complaints under our system of lifetime appointments.

I can see, as was mentioned by Bernard, going to something less than a lifetime appointment, be it 30 years, 20 years, 18 years, or maybe even 14-15 years, but I'm particularly doubtful about the benefits versus drawbacks of having terms of anything less, and thus providing the precise incentive the system was designed to avoid, in which Justices will be moving on very soon, and thus would be subject to precisely the same incentives Senators and Representatives have to make policy decisions on the basis of who will offer them their next multimillion dollar job when they retire from their current office.

This is, to be sure, opinion, and speculative, and not something I claim to be a matter of undeniable fact. But it is part of the basis of my concern.

"Also, could you explain what you mean by the phrase 'appellate law'? I'm not familiar with that term."

Most of the decisions that are binding interpretations for matters of law left ambiguous by SCOTUS are dealt with in appellate courts.

"I don't think your analysis is correct given the wide breadth of the SC's jurisdiction and given how few cases the SC can actually process in any one year."

Obviously the number of cases is quite limited, and in fact the number of cases heard per year by SCOTUS has been dropping noticeably in recent years, down to averaging under 70-80/year, last I looked (and I'm not going to grab a more accurate number just now), but those that are decided are often, of course, highly significant ones, and many are necessary to resolve disputes between different circuits.

"If nothing else, I'd like to see you flesh out your analysis for the 'two orders of magnitude' estimate since that appears to be completely unsupportable."

Yes, I just pulled it out of an orifice, and didn't mean to suggest otherwise. Feel free to ignore the specific claim, by all means.

[Turbulence]

But to most non-lawyers it appears that the Court plays by Calvinball rules where the reason "any change" isn't ok is because living constitutionalists get to make up what they want and shove it down our throats.

Seb, you've mentioned this before in the other thread and I meant to ask you: is this just your opinion, or do you have some empirical support for this belief? Also, assuming its not just your opinion, do you have any empirical evidence (such as polling or research studies) that indicates how strongly "most non-lawyers" feel about this issue? After all, the vast majority of people don't actually care very much about most issues they do have opinions on, and interpretive methodologies for higher courts seem more esoteric than most political issues.

Finally, since "living constitutionalism" refers specifically to Balkin's work, is it your contention that "most non-lawyers" have read Balkin and are able to articulate what "living constitutionalism" entails, or were you just using the phrase as a stand in for "judgifying that doesn't read the plain meaning of the text"? It would be rather amusing if you succumbed to the same fault you ascribe to SC justices while criticizing them...

[tgirsch]

rea:

That 14A text clearly states that they can deprive people of life and liberty with due process of law, just not without it. :)

[Turbulence]

I can see, as was mentioned by Bernard, going to something less than a lifetime appointment, be it 30 years, 20 years, 18 years, or maybe even 14-15 years, but I'm particularly doubtful about the benefits versus drawbacks of having terms of anything less, and thus providing the precise incentive the system was designed to avoid, in which Justices will be moving on very soon, and thus would be subject to precisely the same incentives Senators and Representatives have to make policy decisions on the basis of who will offer them their next multimillion dollar job when they retire from their current office.

Gary,

Many thanks for clarifying. I can't speak for OCSteve, but I have some ideas of my own that would mitigate such corrosive effects. I don't think retiring congressmen are necessarily a good model for retiring SC justices. I suspect that SC justices will be a lot less susceptible to such corruption because they'd be worth a great deal more than the average congressman. That means they'd have a wealth of offers from which to choose and could afford to avoid choosing offers that would give any hint of impropriety. Far more than for retired congressmen, retiring SC justices would value the public perception of their own propriety: if nothing else, such a perception greatly increases their market value.

Why are they worth more? Partly because of selection effects: SC justices are all high caliber legal scholars whereas congressmen are...the kind of people that have managed to survive our political process. If you were running a company, would you want to hire Ted Stevens? It appears that criminality and corruption in congressmen are correlated with general incompetence.

Also, I suspect that most retiring SC justices would end up working as law professors. That sort of job would appeal to their vanity and give them the freedom to write their books. It would also be the kind of position that would have very little potential for suggesting impropriety. Law schools generally don't bring cases to the courts.

I expect the second most popular source of offers would be large law firms and there seems to be very little risk of quid pro quo here. No matter which firms a judge decides against, there will always be others that haven't brought litigation before him that want to hire him. Large law firms take on many clients and their interests are rarely bound permanently to any one client.

[farmgirl]

tgirsch -- how about the "equal protection" bit?

[Sebastian]

"Finally, since "living constitutionalism" refers specifically to Balkin's work"

No it doesn't. His project is to try to rehabilitate the term from something that turned into a slur to something worth defending. The term predates Balkin, and in fact was used initially to slur textualists with the idea that they were defending a 'dead' document.

"Seb, you've mentioned this before in the other thread and I meant to ask you: is this just your opinion, or do you have some empirical support for this belief?"

Do you think Roe v. Wade spurring the Christian Right movement counts? (I know the modern progressive feel-good story is that the rise of the Christian Right was really all about protecting segregated private schools, but anyone paying the slightest bit of attention to politics can tell you the relative weight of that issue compared to Roe v. Wade.)

And hell, a huge number of defenders of Roe v. Wade essentially admit that it was Calvinball rules.

Furthermore, any common citizen with the slightest understanding of history or what the term 'capital' means in "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury" or what 'life' means in "nor be deprived of life, liberty, or property, without due process of law" realizes that the Constitution doesn't prohibit the death penalty. The only reason lawyers can take Marshall's or Brennan's opinion on the subject seriously is because they have completely lost sight of the Constitution in lawyerly games.

Orin Kerr wasn't slyly slurring Balkin's project. Living constitutionalism both in the specific form Balkin has created and in the more general sense of the project liberals have done with the Constitution really could be bent to torture--it could reflect the changing societal attitudes on the topic in such a way as to permit what we now provinically call torture.

[farmgirl]

Sebastian -- Would you be open to the argument that some states fail to provide "due process" in capital cases to such an extent that they no longer meet a Constitutional standard?

[sophie brown]

Does it help to remember that this is a counter-majoritarian document? That's why I have such a problem with the whole idea of treating it like another piece of legislation. Whatever the framers may have intended about various provisions, they certainly marketed the constitution -- and remember it had to be ratified by popular vote -- as a document containing rights reserved against the federal majority.

I don't know how I feel about term limits. It would add a lot more politics to the court -- at least now, you don't really know when the justices and judges are going to die, so it's hard to be completely calculating.

There is a problem with geriatric jurisprudence: when I was a law clerk one of the judges on the court was in the advanced stages of alzheimers and my co-clerks and I felt rather icky about needing his vote on a panel. But that's not the problem here. Those activist conservative justices seem to have quite enough oxygen going to the brain (well, maybe with one exception.....)

[Sebastian]

"Would you be open to the argument that some states fail to provide "due process" in capital cases to such an extent that they no longer meet a Constitutional standard?"

In theory, sure. But that isn't what Marshall says. He made up garbage about the 8th amendment, conveniently ignored the other amendments from the same time, and used a pretextual argument on trending (and calling it 'pretextual' is accurate based on how quickly he abandoned it when it became obvious that the trending went against him. As soon as the trending goes against him he just says that he has talked about this in the past and cites his old opinion'). His argument is still cited by all sorts of liberal anti-death penalty advocates (and even liberals right here who are less zealous either way on the topic) as if it should be treated as a serious legal argument.

It isn't a serious legal argument. It is Calvinball. I don't believe that all of the lawyers who want to treat it as serious are cynical manipulators of the law, but they are definitely too lost looking at a bug crawling across a tree to see the forest. The Consitution doesn't belong just to lawyers.

[Gary Farber]

"There is a problem with geriatric jurisprudence: when I was a law clerk one of the judges on the court was in the advanced stages of alzheimers and my co-clerks and I felt rather icky about needing his vote on a panel."

I can't help wondering if you are referring to an appellate court, or the Supremes, and if the latter, of course, as to whom you might be referring to.

[farmgirl]

Thanks, Sebastian. I'm personally against the death penalty for a lot of reasons, though as you say it is not demonstrably unconstitutional. (I don't know enough about legal history to invoke Marshall or Brennan on the topic.)

I do agree with the principle you've stood up for in this thread: bad law is bad law, even when it generates results that one personally agrees with.

[bc]

Constitutional text is indeterminate, and so Justices across the political spectrum have throughout history interpreted text in a manner consistent with their political and policy preferences.

This in a nutshell is the problem with critics of original intent and flows from too much attention given to postmoderist thoughts like deconstructionism. It's one thing to point out there are ambiguities (maybe even intentional) in some parts of the Constitution. It's quite another thing to claim the entire text has no inherent meaning. Especially when the whole project was to set down a text that controlled government. Sebastian's right: you might as well throw out the Constitution.

Intellectual integrity demands that each side recognize there has been selective interperetation on "both sides" (if there really is any such thing; O'Connor does not seem to have been on any side unless it lent itself to tri-partite analysis). That is not the same thing as saying all originalists are really just arguing for their own political point of view. This argument smacks of the popluar liberal criticism of conservatism: hypocrisy. Just because some originalists hypocritically bend the Constitution to their will does not mean that originalism itself is hypocritical.

Then again, what I just said really means nothing because it has no inherent meaning.

Conservative narratives can’t be co-opted – they need to be completely transcended, particularly originalism. With the exception of communism, never before has such a silly theory attracted such intelligent followers.

You know, I just KNEW there had to be a way to connect conservatives with communism other than through McCarthy.

But really, unless you buy into the thought that all originalists are scheming hypocrites I cannot see how you can call a school of thought "silly" that says "read it like they meant it." What, then, is the theory of "read it like you want it to read?"

The problem here is the focus of the debate is based on theories of interpretation, reading and meaning instead of on theories of organization and structure in government.

And originalism is far from Procrustean. It has an inherent consistancy (in theory if not in practice).

If you want to make Consittutionalism more "democratic," encourage the use of the process to amend the Constitution.

ed. You mean like Bush v. Gore? No, they were just interpreting there).

Not to bring Jes' favorite topic back to the fore :), but this points out my comments re hypocrisy. Scalia, Thomas and Rhenquist relied on Article II and the U.S.C. in the concurrence although they acknowledged the due process/e.p. argument. The Article II argument is entirely consistent with originalism, IMHO.

[Turbulence]

Do you think Roe v. Wade spurring the Christian Right movement counts? (I know the modern progressive feel-good story is that the rise of the Christian Right was really all about protecting segregated private schools, but anyone paying the slightest bit of attention to politics can tell you the relative weight of that issue compared to Roe v. Wade.)

Seb, I asked if you had empirical evidence supporting the belief that a "majority of non-lawyers" in the US believe that the SC plays by calvinball rules due to their adherence to living constitutionalism. I don't think your opinion that Roe v Wade spurred the Christian Right movement counts.

First of all, you'd have to actually make the case that Roe v Wade spurred the Christian Right movement. Secondly, you'd have to demonstrate that the majority of non-lawyers in the US are part of the Christian Right. This seems like a high burden to clear.

Look, if you want to make sweeping statements about what the public believes, it would really help your case if you cited some actual polls or research. In the absence of evidence, you're more than welcome to repeat the notion that your opinions are obviously true and are universally shared, but that's not very persuasive.

Frankly, given that most Americans don't know anything about the Bill of Rights, I find the notion that most non-lawyers have very strong opinions about different theories of constitutional interpretation to be more than a little daft.

[Turbulence]

bc,

Would you mind giving an originalist justification for the existence of the US Air Force? Last time I checked it was neither an Army nor a Navy and would thus not fall under the grants in Article 1 Section 8.

Also, I'd be interested in seeing your originalist justification for Brown v Board of Ed.

[Jesurgislac]

bc: I cannot see how you can call a school of thought "silly" that says "read it like they meant it."

For me, it's because "originalists" have a large Venn Diagram overlap with the NRA-wingers who argue the clear intent of the Framers as they drafted the Second Amendment with reference to the militia in the Constitution should be ignored in favor of the modern interpretation favored by gun manufacturers, and that despite the clear literal meaning of the phrase "well-regulated militia" in the Second Amendment, those words specifically should be disregarded as if they did not exist.

Given that large overlap, it's hard not to see "originalists" as a bit silly.

[Justin]

I respect a lot of publius's legal thinking, but I find his end point profusely silly. It's like saying we don't need theories of statutory interpretation, just a theory of environmental law, a theory of tax law, a theory of labor law.

And to some degree, he's right. We do need (and have) specialized jurisprudence in first amendment law, in fourth amendment law, etc. Publius knows this, of course: he's a law professor. But that doesn't mean we need even some Schumpeter-styled implied legitimacy to the process as a whole. Now, perhaps this is something better not taught in Con Law (and its certainly not something that *is* taught in Con Law, at least for most ConLaw profs). But it doesn't mean that an overall definition of what the Constitution is, and how that impacts its relationships with statutes, courts, executive decisions, and what not, isn't necessary. Nor is the idea that constitutional rights need to have some sort of basis (even if that basis is Dworkian at the end of the day), in order to give credibility to legal determinations. Say what you'd like about originalism, but one thing it certainly *is* is legitimacy-bearing.

Now, one could make the argument that the Constitution was simply a starting point for an American common law that happens to trump statutory, state, and local law. But that's still not necessarily a "disaggregation" theory, as the common law, much like constitutional law, tends to move in sequences across subject matters as well.

The nice thing about American law is that there is a certain consistency to it. Get down the basics solidly enough, and you can figure out a legal question in a subject or on a statute you've never seen before. That's true at the Constitutional level just as much as the statutory level, and I think that will remain so, and for good reason.

[Sebastian]

"It isn't a serious legal argument. It is Calvinball."

I should clarify this statement. Marshall's opinion in Furman IS a serious legal argument that is ALSO Calvinball. The problem with living constitutionalism is that serious legal argument can also be Calvinball.

The whole point of having a Constitution is to not be playing Calvinball, so the fact that what is seen as serious legal argument lets Supreme Court judges play Calvinball and that serious legal scholars defend the Calvinball playing is a serious attack on the whole project of having a Constitution.

Publius seems to be saying that everyone plays Calvinball therefore textualism is wrong.

The problem with that argument (if you still want to have a Constitution) is that if it really were true that legal decisions are just Calvinball that is an argument against having a Constitution not an argument for having non-textualist judicial review. If it is all Calvinball, there really isn't any need to have judges make these decisions.

If you want to have the 'conservative judges aren't always textualist' argument I'm happy to oblige. Lack of perfection in its adherents isn't an argument against textualism. Human beings aren't perfect. But that doesn't mean we should abandon the task of trying to be good.

[sophie brown]

"I can't help wondering if you are referring to an appellate court, or the Supremes, and if the latter, of course, as to whom you might be referring to."

Appellate, not Supreme. And to tell you the truth, we worked hard to ensure that we were not in a two-judge majority with only that most-senior judge, and I think we succeeded in every case.

[Bernard Yomtov]

His argument is still cited by all sorts of liberal anti-death penalty advocates (and even liberals right here who are less zealous either way on the topic) as if it should be treated as a serious legal argument.

Well, yes. I don't see why trends and changing mores are irrelevant to a discussion as to whether something is "unusual" or not.

Nor do I see why the fact that the Constitution clearly allowed capital punishment at the time it was written means it might not also have allowed for the possibility that values would change over time, rendering what was permissible in 1789 unacceptable many years later.

JFTR, I am not an absolute opponent of the death penalty, though I think it should be very rarely imposed, and only then with procedural safeguards vastly stronger than those in use in the US today.

[Sebastian]

Turbulence, "I find the notion that most non-lawyers have very strong opinions about different theories of constitutional interpretation to be more than a little daft."

Of course you do, you are setting up a tautology that essentially reads "Non-specialists don't really understand what specialists are talking about in their area of specialty".

You are certainly right that the average citizen doesn't have an opinion on the particulars of Balkin's specific ideas about the project of defending living Constitutionalism.

But, despite what lawyers think, the Constitution doesn't belong exclusively to them.

The average citizen can and does know that Constitutional theories which lead to self-evidently wrong conclusions like "the death penalty is forbidden by the Constitution" are wrong.

The average citizen understands perfectly well what the term 'lawyerly' means and how it applies to twisting words and bending the court to your will.

You don't need specialized legal training to notice that it is ridiculous to conclude that the Constitution forbids the death penalty. All you need to notice that is very basic understanding of the English language, access to the short document of the Constitution, and a slight smattering of history.

People notice these things.

You seem to think that particular observation isn't valid without a double-blind study. It is my *opinion* that your objection as stated thus far is pedantic instead of substantive. Other readers can decide for themselves.

[Gary Farber]

Furthermore, any common citizen with the slightest understanding of history or what the term 'capital' means in "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury" or what 'life' means in "nor be deprived of life, liberty, or property, without due process of law" realizes that the Constitution doesn't prohibit the death penalty.

Sebastian, I apologize that it's most likely I won't be able to engage in any kind of sustained set of exchanges about this for now, but I am quite curious as to how. exactly, you get from a premise I think we can all agree upon -- that the death penalty was clearly endorsed in our Constitution as permissible under some circumstances -- to the conclusion that therefore the Supreme Court could never, under any circumstances or reasoning, find circumstances or reasoning as to why, at a vastly later date, it was not always permissible, and therefore why it would be self-evident that circumstances or reasoning or a combination of the two could conceivably be reasonably held to find that said circumstances and evolution of law could never possibly be so expansive as to conceivably find the death penalty impermissible under all modern circumstances.

Mind, I in no way am claiming that such an interpretation that the death penalty might now be found impermissible in light of contemporary information and legal evolution is mandatory, or that it is even correct, or even that there may not be perfectly sound reasoning that I'd agree leads to your conclusion.

What I am saying, however, is that you seem to consider it self-evident that because something was held to be constitutionally acceptable in the 18th century, that therefore it must forever interpreted the same way, absent amendment.

That simply doesn't seem remotely compatible with the entire concept of our judicial system, so although i recognize that, of course, the self-evidentness of your position is the heart of your position.

What I don't get is the missing part in which we skip from the premise we agree upon to the premise that a different view of the death penalty in the 21st century is so obviously impermissible that no argument need even be put forward.

It seems a lot like an underpants gnome thing to me. Could you perhaps explain a bit as to how you get from A to C there, and what B might be?

As an analogy, once we had Plessy v. Ferguson, and segregated school systems were the Constitutional law of the land.

Brown v. Board of Ed reversed that. Was that an impermissible decision in your view, and if not, why not? If not, does it differ from a possible reversal on the permissibility of the death penalty?

Or do you feel that segregation should have continued until overturned by legislative acts, or yet another constitutional amendment specifically stating that Plessy was in error?

Or, like, what?

Thanks for any response, and apologies for any lack of clarity on my part; I'm rather sleep-deprived at the moment.

[Sebastian]

"Well, yes. I don't see why trends and changing mores are irrelevant to a discussion as to whether something is "unusual" or not."

You don't use Marshall's opinion to talk about 'unusual', or at least you shouldn't. He writes, in Furman:

"An initial draft of the Bill of Rights prohibited "illegal" punishments, but a later draft referred to the infliction by James II of "illegal and cruel" punishments, and declared "cruel and unusual" punishments to be prohibited. [n12] The use of the word "unusual" in the final draft appears to be inadvertent."

His opinion is cited as one of the best on the subject of whether the death penalty is Unconstitutionally Cruel. Which is certainly true, though whether or not 'best' in this case ought to be considered a compliment on an absolute scale is up for debate.

"JFTR, I am not an absolute opponent of the death penalty, though I think it should be very rarely imposed, and only then with procedural safeguards vastly stronger than those in use in the US today."

For the record, I have become mostly convinced that as a policy matter the death penalty is a bad idea. But that is a completely different matter from saying that it is unconstitutional if enough other people disagree with me on the policy.

[Gary Farber]

bc: I cannot see how you can call a school of thought "silly" that says "read it like they meant it."

For me, it's because "originalists" have a large Venn Diagram overlap with the NRA-wingers

Judging correctness of an opinion by who holds it is a logical fallacy.

On the other hand, I'd invite bc to explain how we get from understanding to original intent to holding that original intent is sufficient to resolve all legal questions. Why is it we have an appellate system, again?

Seriously: what's the point of it, from your point of view, bc and Sebastian? Why do we bother, since "original intent" is unambiguous and sufficient, and is all that is allowable?

It's not clear to me me that everyone but me knows the answer to that question, though I am, to be sure, a very poor judge of that sort of thing.

[Gary Farber]

"You don't need specialized legal training to notice that it is ridiculous to conclude that the Constitution forbids the death penalty.

Fair enough. What, exactly, do we need?

You seem to feel it's so obvious that it needs no explanation. Could you explain a bit, nonetheless, how you get to the assertion that it's so "ridiculous" that's it's just self-evident?

"You seem to think that particular observation isn't valid without a double-blind study. It is my *opinion* that your objection as stated thus far is pedantic instead of substantive. Other readers can decide for themselves."

I'll be happy to, once you put forth your reasoning. Until then, I go for the reasoning I understand, which seems to be the basis of our legal system, as I understand it.

I.e, we have judicial review and interpretation, which while I agree entirely with you cannot be freefloating and grounded in nothing, I don't know how you get to the assumption that anything that isn't simply a quote from the Constitution is invalid, or whatever it is exactly that you hold "textualism" to require, which I'm afraid I'm entirely unclear about.

[Turbulence]

Seb, I certainly don't require a double blind study. I'm just looking for something, anything, that justifies your claims. Research papers by political scientists would work. Polls would work.

Honestly, I'm trying to help you here. I assume you're trying to convince people, like me, that disagree with you. But you're not going to succeed at that without evidence. If you consistently refuse to provide, or even so much as think about, how to empirically justify your claims, then can you really blame me for not accepting your claims?

But, despite what lawyers think, the Constitution doesn't belong exclusively to them.

JTFR, I'm not a lawyer. I also have no idea what this statement even means. I mean, I suppose by that logic, building codes don't belong exclusively to civil engineers, but, um, sorry, I got bored and stopped caring.

The average citizen can and does know that Constitutional theories which lead to self-evidently wrong conclusions like "the death penalty is forbidden by the Constitution" are wrong.

Cite?

Look, I'm not just asking for evidence because I'm a jerk. I ask because you're making very strong claims that are not reflected in my experience at all. My parents are smart people with graduate degrees who read the newspaper everyday and know more about politics than most, but they don't know any of the stuff you're talking about. Ditto for my wife's parents. In fact, its been my observation that many people around this country just don't have this level of knowledge or any real interest in acquiring it.

Yes, many people are unhappy with decisions made by the Supreme Court just like they're unhappy with decisions made by Congress or the President. But in my experience, they're unhappy with outcomes rather than a particular interpretative methodology.

You don't need specialized legal training to notice that it is ridiculous to conclude that the Constitution forbids the death penalty. All you need to notice that is very basic understanding of the English language, access to the short document of the Constitution, and a slight smattering of history.

Oh, I agree that you don't need special legal training; after all, I'm not a lawyer and I've read some SC cases and read about some constitutional issues. But you do need some knowledge and you do need an interest the subject. I don't pretend that I'm representative of the general population in that regard.

Seb, if most Americans don't know what the Bill of Rights is (as demonstrated by the link in my previous comment), why do you think that most Americans will understand what the Constitution says and whether the Supreme Court's interpretation is correct? I mean, if people read the Constitution, shouldn't they then know what the Bill of Rights is?

Your theory that the average American knows a great deal about the Constitution strikes me as bizarre. I mean, most people don't enjoy government and constitutional law, they don't like looking at old documents written in archaic language. Very few of my friends think that's a good way to spend a saturday as opposed to going hiking or watching a play or buying groceries. The media don't give constitutional issues significant air time or column inches because...people don't really care about that. Compare the amount of coverage given to Brittany Spears versus any of the last dozen SC judgments.

[Sebastian]

Gary,"As an analogy, once we had Plessy v. Ferguson, and segregated school systems were the Constitutional law of the land.

Brown v. Board of Ed reversed that. Was that an impermissible decision in your view, and if not, why not? If not, does it differ from a possible reversal on the permissibility of the death penalty?"

First, I think there is an excellent argument that P v. F undermined the text and original understanding of the Civil War amendments. It came at a time just after the abandonment of the Reconstruction project, and when resistance to the upswing of the anti-Reconstruction state laws was at an all time high.

Second, the textual contradictions aren't nearly as strong as in the death penalty case so you are getting way too much work out of "were the Constitutional law of the land" when you compare the two.

The Constitution as ratified at the same time as the 8th amendment specifically outlines how to conduct capital trials. No matter how much ambiguity you think is in the 8th amendment, it isn't infinitely elastic. Cruel can't equal blue for instance. However far the ambiguity extends, it can't go as far as the death penalty because the same document *explicitly* outlines a process for death penalty cases.

Third, and this related to the first, I think black/white race relations have been an enduring problem Constitutionally and in the history of the nation. A problem of unique magnitude and uniquely pernicious influence. I think it would be better to say that the Supreme Court took emergency action and assumed emergency powers in Brown v. Board to try to deal with that and admit that they may have exceeded their true 'powers' than it is to generalize it to allowing the Supreme Court to step in to every possible sphere of public life without mooring.

The analogy in that sense would be Executive Powers right after 9/11. Most people don't have problems with Bush taking drastic action in the immediate days and maybe weeks after 9/11. It is generalizing that to routine practice outlining powers forevermore (after the crisis has passed or by acting as if the crisis is forever) that is a problem.

Nothing in US political hisory compares to the divisions on the racial issue. Treating how we were forced to respond to that (including for example going to War against people who disagreed) as the basis for any routine understanding of how government ought to work seems like a bad choice. For example, I feel very strongly on the abortion issue. As strongly as about anything I believe politically. But I wouldn't think that starting a literal civil war over it would be a good idea.

[Occasional Observer]

As far as Moses, he was using lucifer to do his miracles and God probably wasn't happy. So, he figured he was in hell.

Posted by: SCearlie | April 03, 2008 at 02:26 AM

Snarkiness will get you nowhere -- or everywhere in the average discussion thread. But the illustration had a point that pivots around the feature in it that seems to have annoyed our colleague most: its shocking honesty about the issue at hand. The remark is of the all-too-familiar variety that holds such honesty up as a monopoly of modern times, when everyone is sophisticated in ways people before us never were because they were so damned superstitious. Correspondingly, all that precedes our age can go to the devil.

This is a common sort of dullness, and it helps account for the comment thread's inability to grasp publius's point, or rather work from it.

Originalism now and then answers to a set of practices that constrain adjudication in ways that lend the enterprise legitimacy. In the Talmudic case one needed to base rulings on actual biblical words, a proof text. This made it harder to innovate, but it kept the commentators honest in that it reduced them to commentators.

Occasionally they followed the model of living constitutionalism, as when they reduced "an eye for an eye" to monetary damages on the grounds – certainly a stretch – that no two eyes are exactly alike and so one could not be made whole if we were to take the biblical injunction literally. But even here they styled the ruling as an interpretation of the operative text.

At the time when the rabbis were getting started creating a moral code for the Judaism that would survive the second temple, the ruling class that drew its power from the temple– the Saducees – rejected the idea of an oral law; in short, they opposed the Pharisees as an institution. (In anticipation of more ignorance, I would point out that Jesus was closest to the Pharisees in thinking, often echoing their teachings and earning the title "rabbi.")

In constitutional adjudication one is taught to bring it down to words as well. And in this and the earlier case it is in the nature of the enterprise to treat the words as words meant to bind us for all time, reducing the adjudicators to commentators.

The formulation does in fact constrain adjudication – again, in each case – it keeps it honest in a certain way. The originalist's conjuring trick is to make more of the picture than it supports, supposing that, having settled on this picture, we can take it all the way by channeling the past and extracting a once-and-for-all meaning that decides every case that comes before us, eliminating the decisional, updating aspect of what we do.

As with "an eye for an eye," many constitutional decisions show this to be taking the picture too far.

The point of the Moses midrash is that the ancients had a keener sense of the vagaries of such pictures than do contemporary experts. This point evidently was missed, for reasons stated.

But no one's perfect.

[Sebastian]

Gary "You seem to feel it's so obvious that it needs no explanation. Could you explain a bit, nonetheless, how you get to the assertion that it's so "ridiculous" that's it's just self-evident?"

I know that you posted this before I posted my reply which answered this, but I'm going to set it here to make it easier to find:

The Constitution as ratified at the same time as the 8th amendment specifically outlines how to conduct capital trials. No matter how much ambiguity you think is in the 8th amendment, it isn't infinitely elastic. Cruel can't equal blue for instance. However far the ambiguity extends, it can't go as far as the death penalty because the same document *explicitly* outlines a process for death penalty cases.

By raising Plessy you are talking about something different. Plessy was an interpretation. The 'capital' in "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury" is right there in the actual text of the Constitution. That is why I chose the death penalty cases instead of Roe v. Wade. The problem between the proposed judicial interpretation and the text is wholly in the document.

It is one of those kinds of wrongness that you can't get until you have twisted yourself up with 200 years of lawyerism.

[Turbulence]

Seb,

As an example of empirical evidence, consider this summary of polling results regarding the public's perceptions of the SC. I'd argue that it fails to support your contention: public opinion was quite high throughout the 90s and began declining significantly over the last 5 years (during which Roberts and Alito have joined the court).

Perhaps this summary is inaccurate or perhaps I'm failing to interpret it correctly. Nevertheless, this is an example of "evidence", the kind that you should marshal if you wish to persuade people.

[Gary Farber]

" The 'capital' in 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury' is right there in the actual text of the Constitution."

Sure. But the Constitution simply says that at the time, this was perfectly acceptable under many circumstances.

It doesn't, that I've noticed, state anywhere that capital punishment is mandatory, or forever mandated. Neither have I noticed a clause forbidding the federal courts, or state courts, or anyone else, from placing limits on how or where or when capital punishment might be held to be impermissble.

Could you cite that bit of the Constitution for me, please?

If not, what grounding and text of the Constitution, exactly, do you hold mandates your interpretation, and your personal interpretation alone as the only possible correct interpretation?

Cite?

Thanks.

[Bernard Yomtov]

Sebastian,

OK, but Marshall aside, I still don't get why it is impossible to argue that the Constitution allows for changing standards of punishment.

"Today we accept capital punishment, but we understand that opinions may change."

Whatever else you say, I don't think this is "self-evidently wrong."
After all, one argument put forth by death penalty supporters is that it is widely popular. If capital punishment is not "cruel and unusual" in part because it enjoys wide support what happens when it no longer enjoys such support?

[Gary Farber]

"I think it would be better to say that the Supreme Court took emergency action and assumed emergency powers in Brown v. Board to try to deal with that and admit that they may have exceeded their true 'powers' than it is to generalize it to allowing the Supreme Court to step in to every possible sphere of public life without mooring."

I'd agree with this up to a point, but I also amn't seeing how, if you assert this, you've not simply abandoned your stated principle, and now are merely haggling over when a matter is and isn't an "emergency."

Either the decision was legitimate, or it wasn't: which do you pick?

And if you pick "legitimate," on what principled ground do you declare Brown a clearly unique "emergency" with a bright line everyone can recognize?

I'm still where we started, in other words, trying to understand what your POV is, let alone why it's the only possible legitimate approach to our Constitution, which incidentally happens to be in completely opposition to the overwhelming majority of our country's history and philosophy of the role of the judiciary.

Other than that, you know, you believe that you're correct, and that people with other views have views that cannot be legitimate, because that's what you believe, because other views are incorrect and illegitimate.

Which is a tautology, needless to say.

Which clause of the Constitution do you cite as grounds for all this, exactly?

[Katherine]

People mean 8 different things by "originalism" & "textualism" & "living constitution" to the point that some of this just becomes semantic arguments

Balkin is spot on about "original expected application" not being part of "original meaning" & not being binding. That is actually the point in dispute between him & Scalia, & as far as I'm concerned Balkin has that one right & Scalia has it wrong. His articles, if you read them in full, are great. But by calling himself both an "originalist" & a "living constitutionalist"--the whole thing bogs down in these semantic branding issues.

Basically, if you think original expected application is binding, it determines a ton of things. If you think it isn't, & only original meaning is binding, it doesn't do much at all to make the text more determinate & is actually pretty noncontroversial.

I call my preferred approach, which I think is also Balkin's, "purposive textualism."

It's interesting, given the "originalism is the One True Way!" argument in the U.S., the extent to which it has no sway at all in constitutional courts in other countries. In part this is because more time has passed since ratification in the U.S. But in part it's because Scalia, Bork et. al have sold a load of snake oil--snake oil that they sincerely believe is the Miracle Tonic for Interpreting the Constitution, but their theory rests on semantic confusion & game playing, nothing more. It is no more justified by the text, and is just as much a reflection of their political preferences, as Brennan's "err on the side of protecting individual rights" theory.

[bc]

turbulence: I'm not convinced Brown v. Board of Ed. had to be decided the way it was. What we're talking about is what is "equal."

I'm not an expert on the subject, but I understand that most anti-textualists point out that the same Congress that passed the 14th also allowed some segregation in D.C. Be that as it may, I think there is some historical evidence that that same Congress thought the races might WANT to live separate(e.g. sex separated bathrooms in public spaces) that is entirely different than forcing the races to be separate.

The 14th amendment mandages that the government treat the races with equal dignity and equal protection. The Reconstructionists never said (as far as I know) that ALL segregation would necessarily be Constitutional. So I don't see an inherent textual or historical problem to denouncing segregation laws that plainly violated the 14th amendment.

To me, the question is simple: Did the Jim Crow laws violate equal protection? The answer is clearly yes.

BTW, I pretty sure Bork takes this view, adding that the passage of the 15th amendment two years later with its inherently integrationist provisions for sufferage, etc. reinforce that reading of the 14th.

Listen, my wife is from Justice Harlan's lineage. I have a picture of Justice Harlan and an old Supreme Court reporter containing his dissent in Plessy. If you haven't read it, it is a must read. I think the decision in Brown was cause for rejoicing morally if not from a legal analysis standpoint. Harlan points out that you don't have to go beyond the 13th,14th and 15th amendments to get where you need to go.

Update: I just read it to my law clerk. It's a moving piece. A short abridgment:

The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,' and that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the fifteenth amendment that 'the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.'

These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world . . .

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case . . .

We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,-our equals before the law. The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

[Sebastian]

"Honestly, I'm trying to help you here. I assume you're trying to convince people, like me, that disagree with you. But you're not going to succeed at that without evidence."

"I suppose by that logic, building codes don't belong exclusively to civil engineers, but, um, sorry, I got bored and stopped caring."

You see Turbulence, I'm not really trying to convince *you*. I know I have no chance of convincing *you*. I've seen *you* in other discussions with other people. I'm trying to convince other people. So if you raise concerns that I think are problematic for other people I'm happy to deal with them. Since at the moment your concern appears to be that you need a cite for the proposition that common people care about the Constitution, I don't feel the need to research it.

I think that people who are likely to be persuadable on this topic aren't likely to be troubled by the proposition that common people might be troubled by random-seeming Constitutional pronouncements from the Supreme Court. As a rather large and noticeable political movement gathered large amounts of influence on the back of the issue, people that *in my opinion* are persuadable probably don't need lots of evidence on the point. Or at least people that I'm going to spend time trying to persuade.

You may truly believe that Roe v. Wade didn't do much to change a lot of people who were voting for Democrats into people who were voting for Republicans. You may profess to believe that it was about other things. I don't think it is worth engaging on that issue. Frankly, if it weren't for the fact that Republicans are so awful right now, I'd be happy to let you believe something so wrong because it would make Republican wins much more likely.

I'm not trying to sound mean, but I can't possibly persuade people on every possible point of contention.

If you don't believe that the interpretation of the Constitution is an important political topic to enough voters, I'm not inclined to debate that topic with you. I belive you are wrong, but suspect that our experiences and our view of evidence is different enough that it would be a waste of both our times to try to hash it out.

[Katherine]

Also, just as "originalism" claims to be in favor of the "original meaning" being binding but is actually primarily about "original expected application" being binding--"textualism" is actually about a literal reading of the text being binding as opposed to a purposive reading of the text.

[Katherine]

I also think that originalism actually carries a lot less sway with the public at large than you'd think. Some individual Supreme Court decisions are unpopular, of course, & people call those "judicial activism" & they call the ones they like "upholding the Constitution," "upholding the rule of law" & "protecting individual rights," etc.

Originalism has more success as a form of indoctrinating the next generation of conservative lawyers & judges than anything else.

[Katherine]

Also, on the death penalty, Gary: Sebastian treats the 9th amendments' prohibition on construing the enumeration of certain rights to deny other rights to the people as dead letter.

[Gary Farber]

"Since at the moment your concern appears to be that you need a cite for the proposition that common people care about the Constitution, I don't feel the need to research it."

I'd like a cite to whatever it is you're precisely asserting in this regard, as well, if you'd like me to understand what you're saying.

"I think that people who are likely to be persuadable on this topic aren't likely to be troubled by the proposition that common people might be troubled by random-seeming Constitutional pronouncements from the Supreme Court."

I certainly agree that there are many "common" people troubled by some Constitutional decisions.

And?

What does popular opinion have to do with rights we hold to be self-evident, and the interpretation of how those rights, and the text of the Constitution should be interpreted, exactly?

Do you have a cite to a clause of the Constitution that clearly states that popular opinion is relevant to interpreting the Constitution, Sebastian?

I assume you must, or I can't make any sense at all as how your position, which seems to be that if it isn't explicit in the Constitution, it's not part of the Constitution, is self-consistent.

Can you help me out here, please?

Thanks.

[Turbulence]

I think that people who are likely to be persuadable on this topic aren't likely to be troubled by the proposition that common people might be troubled by random-seeming Constitutional pronouncements from the Supreme Court.

That makes perfect sense except for the part where you assume that many people in the US know almost anything about the constitution and pay close attention to SC behavior and scrutinize SC decisions.

As a rather large and noticeable political movement gathered large amounts of influence on the back of the issue, people that *in my opinion* are persuadable probably don't need lots of evidence on the point. Or at least people that I'm going to spend time trying to persuade.

I think you don't understand that most people in the US < a href="http://www.americanprogress.org/issues/2007/04/opinion_abortion.html
">do not want Roe v Wade repealed.

I suspect the Christian Right would have been animated at the thought of a prenatal-holocaust no matter how sound the legal reasoning that justified that holocaust was. Don't you agree? I honestly don't understand the contention that the Christian Right was primarily motivated by the methodology and not the outcome of Roe v Wade, to the extent that I buy your theory that R v W was important in that regard. In other words, just because the Christian Right was motivated by R v W, it does not follow that the methodology of the decision, rather than the outcome, was the motivating factor.

Since at the moment your concern appears to be that you need a cite for the proposition that common people care about the Constitution, I don't feel the need to research it.

I never claimed that "common" people don't care about the constitution. What I claimed was that most people in the US don't know much about the constitution and debates about interpretative methodology and that to the extent that most people care about SC rulings, their focus is on outcomes, not methodology.

So yeah, I think people do care about the constitution. I don't most people care enough to learn anything more about it than they learned in high school. And I don't think they care enough on average to do anything.

You may truly believe that Roe v. Wade didn't do much to change a lot of people who were voting for Democrats into people who were voting for Republicans.

I never said that. What I did say is that I'd like to see you make this case on the merits.

Seb, the fact that you feel compelled to repeatedly distort my arguments does not speak well about your case. Good arguments don't usually require a lot of lies to justify them.

[MNPundit]

Well how do you go about junking ALL the narratives?

And I was disappointed that the question of whether the Yoo Memo's would fit under it wasn't answered. Obviously random change isn't okay, but I would have liked to hear the arguments for it.

[Anarch]

I don't really have time to delve into Constitutional interpretation but this...

Gary: Judging correctness of an opinion by who holds it is a logical fallacy.

...is true, but in a misleading way. To wit: it is certainly true that a person who is otherwise wrong might be correct on a particular matter. [viz. stopped clocks, etc.] If someone is, however, repeatedly wrong on a number of issues -- or, shall we say, is morally suspect in other ways -- then yes, it's a) not unreasonable to discount their opinion on related matters, nor b) automatically look with disfavor on any other positions they may espouse. Call it Bayesian reasoning if you want a sophisticated gloss on it; regardless of nomenclature, though, it's unwise to dismiss this kind of argument so quickly.

[bc]

Re: the Air Force and original intent.

Have to think on that one. I know the Air Force was originally part of the Army (army air corps?). There was certainly nothing wrong with that (the Constitution does not freeze weapons at the musket-cannon-warship level and thus the Navy and Army flying planes poses no Constitutional question).

I think the bigger question would be whether the Air Force is limited to the two-year appropriation limit in Article I section 8 clause 12 or the no-limitation for the Navy in clause 13?

As a truly stand alone entity, one could argue that we need another clause. Off the top of my head, however, I see no reason why if you couldn't include it as a sub-part of the army that Congress couldn't segregate it off as an "independent sub-part" for administration purposes.

But fine. Let's amend and see how many people oppose. I don't really see this as an argument against textualism and original intent.

[Gary Farber]

"Seb, the fact that you feel compelled to repeatedly distort my arguments does not speak well about your case."

Turbulence, while I've been in more or less complete agreement with everything you've said on this thread (and I generally observe that, in fact, I usually agree with you a quite high percentage of the time, overall, save on occasion), I have to say that I don't believe at all that Sebastian is intentionally distorting anyone's opinions.

I'm very strongly of the impression that, instead, some of us simply don't understand the assumptions some others take so for granted that they find it completely unnecessary to state those assumptions.

I've never been able to grasp what Seb's overall consistent legal philosophy is, and so far, this thread hasn't helped me much, other than to consider that Katherine's comment as regards the 9th Amendment might have some merit (though I strongly suspect Sebastian will say that it is an entirely incorrect suggestion).

But I remain a blissful optimist. I'm hopeful that either Seb will give cites to the various clauses in the Constitution which he regards as clearly stating and supporting his understanding, or that he'll explain more clearly how it might be that the only way to interpret the Constitution is via literal quotes, although there seem to be no literal quotes from the Constitution that support such an argument.

But I'm hopeful that it's merely a matter of Sebastian not having yet had enough time to explain his reasoning, and where it's grounded in the obvious and self-evident text of the Constitution.

Thus I've asked some questions hoping to elicit those cites, or, failing that, some clarification as regards Sebastian's precise reasoning as to why cites of Constitutional text are are unnecessary to support the claim that cites of Constitutional text are always necessary.

Anyone else, feel free to jump in to explain how this works. BC?

I'm entirely willing to believe I'm just unfamiliar with some of these arguments, and perhaps I'll agree once I see them finally stated, and not just taken for granted as unnnecessary to state, because, after all, it's the only possible way to correctly understand the Constitution.

But right now I have to lie down. I'm dizzy.

Probably my blood pressure meds, and going on and off them and such, at present, perhaps.

[Enlightened Layperson]

I would suggest that "living constitution" would sound less defensive if its proponents would refer to the alternative as the "dead constitution."

[Gary Farber]

"There was certainly nothing wrong with that (the Constitution does not freeze weapons at the musket-cannon-warship level and thus the Navy and Army flying planes poses no Constitutional question)."

What does and doesn't the Constitution freeze, then, and how do we determine the answer to that question?

This seems to me to be the entire question. So I'd love to know what you believe the answer to be.

[Katherine]

Gary:

I think the key difference is that Sebastian thinks that the founding generations' expectations about how constitional terms would be applied in practice is binding on future generation, & I think it is emphatically not. So, on this view: the references to capital punishment in the constitution indicate that the founders believed that capital punishment would exist, indicating that they did not think that it was unconstitutional.

He thinks that the original expected application is generally applicable except in ill-defined & poorly-defended "emergencies"--which is, as far as I can tell, simply a way to evade the charge that he favors legal segregation & a bunch of other outcomes that everyone here agrees are morally indefensible. (If the "emergency powers" claim is right, then I think that implies a belief that the text of Equal Protection clause allows bans on interracial marriage, but I don't know if Sebastian actually thinks this or not; it's an extremely embarrassing question for people who say that originalism is the One True Way to interpret the constitution.)

He thinks that it's especially absurd to argue that the original expected application isn't binding when you can determine it through the text of the Constitution itself rather than through more dubious means. That's why Furman seems especially egregious. I think.

Obviously, take my attempts to characterize an argument I disagree with with a grain of salt, but I'm not trying to set up a straw man.

[Katherine]

Sebastian, what is your position on
Brown v. Board of Education, Bolling v. Sharpe, & & Loving v. Virginia? Are they correct or incorrect interpretations of the constitutional text?

If they are incorrect, but justified on moral emergency grounds, why is the Supreme Court justified on deciding based on the moral effects & results instead of the text in these decisions and no others?

If they are correct, then why do you need this "emergency" mumbo jumbo to justify them?

[tgirsch]

farmgirl:

Nobody can seriously argue that it was the original intent of the drafters or adopters of the 14th amendment that the government should mandate racial integration. IANAL, but under a plain reading, the best you could do with the equal protection bit is enforce the "equal" part of "separate but equal." You can't abolish the "separate" part under a strict originalist reading.

[Brett Bellmore]

Jes, I find your argument with respect to the NRA somewhat self-referencial; It seems to boil down to nothing more than, "I disagree with the NRA, therefore the NRA is wrong."

[tgirsch]

Re: Brown, I threw a bit of a powder keg out there, didn't I? Although I'm pretty sure I stole that particular keg from publius, who I'm nearly positive brought it up back in the LF days. Sorry to steal your thunder, dude.

Have to think on that one. I know the Air Force was originally part of the Army (army air corps?). There was certainly nothing wrong with that (the Constitution does not freeze weapons at the musket-cannon-warship level and thus the Navy and Army flying planes poses no Constitutional question).

Um, I'm not so sure about that. Regarding the organizational aspect, I don't think the Constitution magically grants Congress the ability to create unconstitutional organizations provided it nurtures them under the auspices of the US Army for a few years.

Moreover, I think flying planes and launching nuclear weapons does pose constitutional questions: we're talking about giving the federal government far more military power than the state governments or the people. I don't think we can just brush such questions aside under an originalist reading. To the extent that Seb has convinced me that the 2nd amendment is an individual right, it seems absurd to assume that the constitution entitles the federal government to amass such vast military power while denying that right to the states and people. I mean, if the constitution carefully balances the p