About That Georgia Nullification Resolution ...

by hilzoy

As others have reported, the Georgia State Senate has adopted a resolution allowing the state to nullify any federal laws it thinks are unconstitutional. Hendrik Hertzberg actually read the resolution, and wrote a post that made me want to read it as well: he described it as "a Kompletely Krazy Kocktail of militia-minded moonshine and wacko white lightning -- a resolution that not only endorses defiance of federal law but also threatens anarchy and revolution."

So I did, and as I read I had two main thoughts. First, while Hertzberg writes that the resolution is written in "a mock eighteenth-century style, ornate and pompous", I thought it was an unnervingly good imitation of eighteenth-century prose. And not just in general: in referring to the Constitution as "a compact under the style and title of a Constitution for the United States", the 'style and title' part struck me as pitch-perfect.

Second, there is something very peculiar about its content. Consider this passage:

"That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress." 

Where, I wondered, is the Supreme Court in all this? The Supreme Court determines the constitutional limits on the exercise of federal power. It has the power to nullify federal statutes. Therefore, it obviously puts a check on the executive and legislative branches. And while one might think that it has interpreted the Constitution wrongly, it's very odd to write as though it didn't exist, and did not have the authority to keep the other branches of the federal government within constitutional limits.

It occurred to me that there was a simple explanation for all this. So I googled a distinctive phrase, and lo! it turns out that the Georgia resolution is a lightly modified version of Thomas Jefferson's Resolutions Related To The Alien And Sedition Acts. (Most of the resolution follows this version, but towards the end, it substitutes the eighth resolution, here.) It omits all references to the Alien and Sedition Acts themselves, as well as the part where Jefferson seems to say that states, rather than the federal government, have authority over "alien friends", and that the federal government has no right to imprison people who do not obey deportation orders. 

UPDATE: I inadvertently cut the following: And they added this piece of lunacy:

"Any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of the United States of America by the Constitution for the United States of America and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America."

It's followed by a list of laws that would constitute a nullification of the Constitution. Read it and weep. END UPDATE

This matters for the following reason. Jefferson wrote his Resolutions in 1798. At that time, it was still an open question how the Constitution was to be enforced, and, in particular, how the federal government was to be kept within its limits. In 1803, the Supreme Court decided Marbury v. Madison, which answered that question by holding that federal courts had the power to determine whether or not federal laws were constitutional. It did so on grounds similar to those that moved Jefferson:

"To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable."

Jefferson and Justice Marshall were confronting a similar problem: the need to keep the federal government within constitutional limits. They proposed different solutions: in Jefferson's case, state nullification, in Marshall's, judicial review. When Jefferson wrote, his views were not "militia-minded moonshine and wacko white lightning". They were an attempt to answer a serious problem that had not yet been answered. His solution was, in my view, not the best one, but it was a serious answer to a serious question. 

It matters when you write something. The Articles of Confederation were not ideal, but when they were written, they were a real solution to a real problem. Proposing them now would be idiotic. Likewise, what makes the Georgia resolution a Kompletely Krazy Kocktail is that it parrots Jefferson's words as though we had not arrived at a solution to that problem nearly two centuries ago. But we have, and acting as though that solution does not exist, or as though it does not make state nullification both superfluous and a recipe for lawlessness, is absurd. 

Comments

[Brett Bellmore]

That's how it works in situations where the courts don't work for the party violating the contract, where the judges aren't being selected for their willingness to say that killing the daisies IS within the bounds of legitimate lawn care.

I think it's rather absurd to pretend the courts are objective arbitors when they are employed by, and selected by, one of the parties to a dispute.

[Warren Terra]

Umm, Brett, taken literally your notion would basically deny the whole concept of judicial review and make every form of organized government a tyranny. Yup, part of adhering to Constitutional government is having a group of people that rules on whether the Constitution is being followed. The people in that group will work for the government the Constitution has created. I'm not sure how you'd even begin to recommend working around this, or why you'd think it's particularly a problem for laws affecting Georgia citizens as compared to, say, some suspected criminal facing a government prosecutor in the government's courtroom.

Unlimited powers of taking your ball and going home because you don't like the outcome of Constitutional government were rather conclusively rejected in this country 150 years ago.

[liberal japonicus]

I tend to think that Brett's beliefs about government are a birth defect and should be treated as such.

[243]

"I tend to think that Brett's beliefs about government are a birth defect and should be treated as such."

In all fairness I don't think they've found a gene for that yet. OTOH even if they do find such a gene, I don't want Brett subjected to treatment to cure his defect. It's a Clockwork Orange sort of thing....

[GoodOleBoy]

I know this has been a long thread and most every possible set of actions has been discussed but here I go. The original states get together and ratify a Constitution that delegates a limited authority to a federal government and explicitly reserves remaining authority to the states and the people. Later, the SCOTUS determines it is their responsibility to interpret the meaning of the Constitution. And this is generally accepted as valid. If, at some later point, some of the states deem that the court has 'misinterpreted' the Constitution, what recourse do those states have? It seems they should have recourse in some form, since not all authority was delegated to the federal government. They cannot pass federal legislation to act on this since that law will be subordinate to the Constitution which all have agreed is interpreted by the court and is the supreme law of the land. If everyone were to agree that an action like that going on in Georgia has no standing, then where is the recourse. It seems to me, and you all know IANAL, that the Constitutional provision for calling a convention might be the only legal avenue left.

[Paul]

My state sucks

[kid bitzer]

goodoleboy--

i more or less agree with where you end up. the state legislatures do have the ultimate whip-hand, because of their ability to call a convention (2/3), propose amendments, and then ratify (3/4) those amendments in the state legislatures.

what this means is that if you and four thousand of your friends could take over the state legislatures of 38 states, you could arrange to repeal the constitution and replace it with a new one whose sole article says that you are tyrant in perpetuity. and that change would have been made in an entirely constitutional fashion.

just four thousand people (i'm imagining roughly 100-person majorities in 40 state legislatures) could thus turn the country into a kim jong il style tyranny. it's a bad provision, and deeply anti-democratic, but that's how the constitution is written right now, and it's not likely to change.

since the legislatures have the power to do even something that extreme, they certainly have the power to do something as moderate as writing a new article appointing some new body to be the ultimate arbiter of constitutional interpretation. could be a body created out of the state legislatures themselves. or it could be you.

where i disagree with you is in two parts of your lead-up.

1) you write as though the states created the constitution. but they did not. we the people are the enacting parties.

2) you write as though scotus just arbitrarily arrogated to itself the power of interpretation, and everyone else went along. but that's not how it went at all.

the power of interpreting the law was always inherent in judicial power. that is how judging in the anglo-saxon common-law tradition had always worked. the constitution did not need to stipulate that "among the judicial powers of the courts shall be the power to interpret the law". that's just what "judicial power" meant for everyone working in the anglo system.

it's like sentencing convicts. what constitutional provision gives the courts the authority to sentence convicts? the constitution says nothing about sentencing. so did the courts just make this up? did they just arrogate to themselves a power that was not specified in the constitution?

no, obviously not. the sentencing phase had always been considered an inherent part of the "judicial power".

so too with the interpretation of the law. article iii says: "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

that's all it needed to say, in order for anyone who was familiar with the legal system to understand that the courts had just been granted the power of interpreting the law.

the step from there to judicial review is simply the one spelled out in hamilton's syllogism in federalist #78, which i quoted above:
1) it is the "proper and peculiar" (i.e. exclusive) role of the courts to interpret the law. legislatures make it; executive enforce and implement it; only courts interpret it;
2) the constitution itself is a law (the supreme law of the land);
therefore, it is the peculiar and proper role of the courts to interpret the constitution.

this was not a power-grab on the part of scotus; it was as natural a judicial power, and as inherent to the anglo-saxon conception of the courts, as their power to sentence convicts or to declare verdicts.

and, of course, if we don't like it, then we can always lobby congress and our state legislatures to change it via the amendment process.

[Carleton Wu]

That's how it works in situations where the courts don't work for the party violating the contract, where the judges aren't being selected for their willingness to say that killing the daisies IS within the bounds of legitimate lawn care.

See, if you *assume* that one of the parties is violating the contract, you don't need the court to figure out the dispute. And that's what you've done here (ie "the party violating the contract").

Of course, your model contains exactly the same flaw that you complain about- Georgia is a party, and also gets to determine whether the contract has been violated. But you don't see this, because you've placed Georgia's opinion in this particular case in the same privileged position that you usually place your own opinion on Constitutional matters- a place where opinion becomes incontrovertible fact.

[russell]

Ultimately, the basis of government is the consent of the governed. Yes, its true, if you have a really good army, you can quite often coerce that consent, but if a given population is simply and absolutely not willing to participate, there's nothing you can really do to make them do so.

If Georgia, or Texas, or whoever, really wants out, we should begin negotiations right now to figure out how to cut them loose and move on.

Personally, I'm not interested in spending a single American life or a single American dollar in an effort to keep them on board. If they really want to go, we all know where the door is. There are a large number of details to work out, but that's what lawyers are for.

If they really want out, I say let them go. And yes, I am dead serious.

Vaya con dios, we'll send you a bill for the highways, water, and other infrastructure, and don't let the door hit you in the @ss on the way out.

Go.

[Jesurgislac]

Russell, this is something that's come up in my own country not a few times, and there is a valid answer: if 60% of the electorate vote to go (or whatever, but I think it's valid to make it something over a 50/50 split) then clearly, the federal government is no longer ruling with the consent of the governed.

Somehow, I don't think the Republicans in Georgia are going to be able to con 60% of those registered to vote into voting to secede....

[Brett Bellmore]

"Umm, Brett, taken literally your notion would basically deny the whole concept of judicial review and make every form of organized government a tyranny."

Really, you can't conceive of a system where federal judges weren't chosen entirely at the federal level? Heck, in principle we HAD such a system before the 17th amendment, judicial nominees had to be approved by representatives of the state governments. It even worked that way in practice, until the states got to having Senators elected instead of appointed.

The Senate was supposed to function as the states' veto, not just be another House with longer terms and bigger egos, the way it is today. And it did so function for a long while.

I agree that, before nullification should be put into play, the states should resort to a constitutional convention. I have serious doubts that it can work, for the simple reason that, if the federal government were actually of a mind to obey the Constitution where inconvenient, no convention would be needed. They'll probably ignore the call for one.

But it's got to be tried, first.

[GoodOleBoy]

Kid Bitzer,

Thanks for your comment. I was taking a very simplified path to make my point. Not wanting to take anything away from the people, who are the deciders, but the states are mentioned as well in the reserved powers clause of the 10th Amendment, so I assumed there was room for a role for them as well.

Regarding the Supreme Court, I completely see it the way you describe it. All I was trying to recognize was that Madison vs Marbury was a significant case with a lot of dissent and other opinion, but the decision ultimately carried the day as it should have.

Maybe what is needed is a Constitutional Amendment that would amend the provisions for calling a constitutional convention and provide specifics with enough cover that all the different interests could abandon the fear of such a convention going completely out of control. Such an amendment would be passed in the tradition of all the amendments after the Bill of Rights. Then a convention would offer a second way of passing amendments to deal with specific issues.

[Brett Bellmore]

I think the fear of a convention going out of control is mostly misplaced, given that any amendments the convention generates still have to be ratified by the states. Unless, of course, the convention goes the same way as the original convention, and junks the whole thing, amending process and all.

And they only got away with that because the Articles of Confederation were widely understood to be a failure; Their output would have just been ignored otherwise.

The initial amendment I would propose, would be to amend Article V to provide that any amendment ratified with identical language by 3/4ths of the states would become a valid portion of the Constitution without regard to how it originated.

[Carleton Wu]

It even worked that way in practice, until the states got to having Senators elected instead of appointed.

So if a state legislature chooses direct election of its Senators rather than appointing them, the Senator suddenly becomes a federal creature rather than a creature of his/her state? Seems like a contrived position, but perhaps a necessary one to reach the conclusion that the federal judiciary is solely a creation of the federal government, with no input from the states.

The Senate was supposed to function as the states' veto, not just be another House with longer terms and bigger egos, the way it is today.

You appear to live in a world where the states are not composed of the people; the people elect the senators, congresspeople, and presidents. If the people felt as you do, they would be electing a very different bunch of officials. I don't think it's much of a stretch to recognize that the will of the people thus expressed is also the will of the states, as the states are made up of subsets of the same people. At least, if a majority of the subsets of the people that make up the individual states felt as you do, the Senate would have a very different makeup.

Now if the majority of people of a single state, or a few states, feel that they ought to have the power to unilaterally dictate to the vast majority of the states exactly what this compact means, that's a problem. But the resolution shouldn't be "decide what Brett wants to happen, and grant that side legitimacy".

I agree that, before nullification should be put into play, the states should resort to a constitutional convention. I have serious doubts that it can work, for the simple reason that, if the federal government were actually of a mind to obey the Constitution where inconvenient, no convention would be needed. They'll probably ignore the call for one.

If the "call for one" is made by a pretty small chunk of the population, they yeah, it'll get ignored. After all, if your viewpoint had clout of a majority, it could propose amendments to the constitution directly, adding any language they felt necessary. Of course, if your viewopoint had that clout, the Senators being elected from many states would not consent to a judiciary that was so far from their viewpoint about the constitution.
Also, if you did get your constitutional convention, do you imagine that the small minority whose views you're defending would somehow take over the convention? It's pretty clear to me that a new convention would produce a constitution in line with the majority views of the country (with the usual horse-trading), rather than enacting antebellum fantasies or some randite 'paradise'.

[Gary Farber]

"I think the fear of a convention going out of control is mostly misplaced, given that any amendments the convention generates still have to be ratified by the states."

I'd be happy to agree if I did, but it seems to me that state legislatures are constantly beset by the passions of the day, and are generally eager to pass populist bad ideas.

I doubt many state legislatures would, unrestrained by constitutional limitations, find it difficult to pass limitations on unpopular free speech, such as by child molestors, or terrorists, or in some cases, pornographers, etc., for example.

Or from a POV opposite mine, the Equal Rights Amendment quickly and without much difficulty passed was ratified by 35 of the necessary 38 states; if I thought that was a bad idea (which I don't, of course), I'd call it alarmingly close to passage.

I'd like to believe that the primary motivation of most state legislators is the good of the nation as a whole, but I don't. (I don't believe that it's the primary motivation of most national legislators, either, but the combination of interests differ enough to provide greater checks and balances, sometimes for worse, and sometimes for better.)

[Gary Farber]

"You appear to live in a world where the states are not composed of the people; the people elect the senators, congresspeople, and presidents."

Actually, Brett wrote:

[...] Really, you can't conceive of a system where federal judges weren't chosen entirely at the federal level? Heck, in principle we HAD such a system before the 17th amendment, judicial nominees had to be approved by representatives of the state governments.

Italics mine. I'd contend that the suggestion that state governments sometimes have interests that differ from the will of the people isn't a crazy notion.

[Brett Bellmore]

"If the "call for one" is made by a pretty small chunk of the population, they yeah, it'll get ignored."

And if the highest law of the land dictates that whether the call is valid is a function of the number of states calling for the convention, not the number of inhabitants of those states, then they're tossing the rule of law, and violating the very charter that established the federal government. In a rather open and blatant fashion.

I would note here, though, that while in theory a set of states representing a small fraction of the population could ratify an amendment, or call for a convention, in practice that's not been the way it's worked out. The ERA, for example, failed, but it failed with a set of states having ratified which represented almost the same fraction of the total population, as they did the number of states.

This theoretical problem is not likely to come up unless the amendment in question differentially effects the interests of large and small states... And that's when it's supposed to come up!

[Carleton Wu]

And if the highest law of the land dictates that whether the call is valid is a function of the number of states calling for the convention, not the number of inhabitants of those states, then they're tossing the rule of law, and violating the very charter that established the federal government.

I mean, right now the dozens of people calling for a constitutional convention can be safely ignored. Once you've satisfied the proceedural requirements & they've been ignored, then maybe you'd have a point. But imagining that you had the support required and then imaging that you'd be ignored and then imagining that secession is therefore justified is such a long series of hypotheticals that I don't see the point in raising it, let alone figuring out the correct course of action.
# states required = 34. # of states that appear to be on board = 2, depending on Texas. When you get into the 20s, let me know.

And, of course, it has nothing to do with what the Georgia legislature has done- they have acted unilaterally, without any of the steps put forth here.

[Carleton Wu]

Italics mine. I'd contend that the suggestion that state governments sometimes have interests that differ from the will of the people isn't a crazy notion.

Conveniently, I quoted the part of Brett's statement I was principly responding to. You will notice, it differs from the one that you quoted...

The people elect the state legislatures. The state legislatures, acting as representatives of the people of their states, chose to pick their federal senators via popular election by ratifying the 17th amendment (40 did so, 10 did not). They even have the power to take this back if they so choose, via the amendment process.
Ergo, the will of the states (ie the will of the people of the states, acting through their legislatures) is compatible with the judges so chosen and their political philosophy. It is an indirect process, and certainly other processes that polled the will of the states (eg gubnetorial appointment of federal senators, statewide popular vote on judges) would produce a different outcome- but just because the outcome would be different via different methods of determining the will of the state does not mean that this method, chosen by the state legislatures, is not the will of the state.

The crazy notion (Brett's, not yours) is that the states didn't set this up themselves. That somehow, the sneaky federal government has duped the states and is now selecting a judiciary that is in the bag for the federal government rather than a more-or-less impartial one.
If the people felt this way, they could elect senators with different priorities on judicial nominations. Or, they could elect state legislatures that proposed amendments to the process. That they are not doing so speaks volumes.

[Gary Farber]

"Conveniently, I quoted the part of Brett's statement I was principly responding to."

You quoted: "It even worked that way in practice, until the states got to having Senators elected instead of appointed."

Your response was: "So if a state legislature chooses direct election of its Senators rather than appointing them, the Senator suddenly becomes a federal creature rather than a creature of his/her state?"

Maybe it's just me, but I don't remotely see how you got that interpretation out of what the quote from Brett. It's not what he wrote, and I don't see it being remotely implied by what he wrote. He was distinguishing between the popular will of the people, and the will of the state government, as I read him, not between the will of the state (as articulated by other method or body) and the will of the of the federal government. How you get to an conclusion that he's declaring that the Senator is a "federal creature rather than a creature of his/her state," I'm not seeing. It's not in what Brett wrote that you say you were "principly responding to." Is it somewhere else?

Maybe you're reading Brett far more clearly than I am -- that's always possible -- but if I'm reading him at all correctly, his answer would be "no," not "yes." But obviously he should answer for himself.

You went on to quote Brett writing this: "The Senate was supposed to function as the states' veto, not just be another House with longer terms and bigger egos, the way it is today."

And you responded: "You appear to live in a world where the states are not composed of the people; the people elect the senators, congresspeople, and presidents." As a response to what he wrote, this again seems off-point. You can disagree with Brett all you like -- I don't agree with his characterization of the Senate here, either -- but you seem to be responding primarily to some straw construction of what you think he means here, or some serious misinterpretation, rather than what he actually wrote, it seems to me.

"...but just because the outcome would be different via different methods of determining the will of the state does not mean that this method, chosen by the state legislatures, is not the will of the state."

So, according to your explanation, the state has multiple, contradictory, wills. Fine, but then the notion that a state legislature, and the popular vote of a state, might be in conflict with each other, is a statement you are agreeing with, not a statement you are invalidating, and not a statement about whether these wills are wills of the state versus the will of the federal government.

What am I missing here?

[The Crafty Trilobite]

GoodOleBoy, sure, they can try to amend. If their issue is popular enough to do that, they can probably also eventually get the Court to change its mind, which is one reason we have so very few amendments. Sometimes, though, a majority of the people in one state are out of step with the rest of the country. They may have to live with that fact.

Ironically, the one time we actually had secessions, it was because the North played properly by the rules in such a situation:
1) Chief Justice Taney et al., in a decision based on lousy reasoning and worse history, force the whole country to live by slaveholder state rules.
2) We The People get angry enough to elect a moderate, incremental abolitionist as President.
3) The South panics at the thought that its power grab might be effectively opposed, murders federal garrison troops, seizes Army property, and secedes, without even an attempt to call a convention.

[Brett Bellmore]

"If their issue is popular enough to do that, they can probably also eventually get the Court to change its mind, which is one reason we have so very few amendments."

That's kind of silly. We don't have "so few" amendments, since 1978, over 30 years ago, we have NO AMENDMENTS AT ALL. Congress has simply stopped proposing amendments, period. In the face of considerable demand on some subjects, such as term limits and balancing the budget.

And the reason is evident: Congress tries to amend the Constitution when the courts say that something Congress wants to do is unconstitutional. And the courts have essentially stopped doing that.

Why would Congress bother amending a constitution that's not being enforced against them?

"So if a state legislature chooses direct election of its Senators rather than appointing them, the Senator suddenly becomes a federal creature rather than a creature of his/her state?"

Thanks, Gary, I think I will respond: The original constitutional scheme was that the House would represent the people, and the Senate would represent state governments. So long as Senators were selected by state governments, this was actually a fairly effective system for maintaining the balance of power between the state and federal levels.

Once Senators were selected by the people, and not state governments, it ceased to be in their interest to defend state governments against federal power grabs, because the more power at the federal level, the more power the Senators had, <>and the state governments had no power over them anymore.

The transformation wasn't complete until the 17th amendment, because even directly elected Senators had to worry that an outraged state government might reclaim it's power to control who represented it in the Senate, until that amendment took that power away.

[Phil]

I'm amazed that this thread got this far, with repeated mention of Georgia no longer being "bound by the contract" because of repeated Federal violations of "the contract," without noting that Georgia has been in the habit of "violating the contract" since 1866, particularly the 14th and 15th Amendments. Which is why Georgia has been subject to the provisions Section 5 of the Voting Rights Act of 1965 since its passage.

So any complaints here about poor Georgia and its helplessness in the face of Federal power grabs is a bunch of crap. Georgia can't even be counted on to protect the rights of its own citizens. Frankly, I think we should have kicked it and the rest of the neo-secessionists out long ago.

[Jim Parish]

Brett:
We don't have "so few" amendments, since 1978, over 30 years ago, we have NO AMENDMENTS AT ALL.

You are aware, I hope, that the gap between the 12th and 13th amendments was 61 years; between the 15th and 16th, 43; and that the 27th amendment was passed in 1992.

[Brett Bellmore]

Yes, I'm aware of that; It doesn't appear to me that the situations are the same, but I'm open to persuasion on that score.

"that the 27th amendment was passed in 1992."

Yes, but I was discussing the fact that Congress has stopped originating amendments, and the 27th is hardly relevant, except as evidence that the federal judiciary will probably find some way to moot any amendments the states manage to ratifiy contrary to Congress' interests.

[GoodOleBoy]

In my view, Brett is correct with respect to the direction of the shift of the balance of power between the federal government and the state governments favoring the federal. The founders in the Constitution guaranteed to every State in the Union a republican form of government without any mention of a democracy. The original construct for the Senate and the House was one way to do this. The 17th amendment was destructive to this balance and to the continuance of our government as a republic. In other words, it moved us closer to being a democracy. The original intent, in my view, was for the House of Representatives to represent the people and for the Senate to represent the State, a striking similarity to some other words contained in the reserved powers clause of the 10th amendment. Direct election of senators does indeed free them from the influence of state legislatures and this almost eliminates state government power in federal actions. Another point, not touched on here, is the power wielded by political parties over senators. This puts a senator's loyalties toward the party rather than the State represented.

In earlier threads, there has been much discussion about how the Senate should be reallocated to more nearly reflect the population across the 50 states instead of the present 2 per State. This, of course, is more of the same sentiment that gave us the 17th amendment.

Some noteworthy individuals have had thoughts on this notion of democracy.

John Adams: 'Remember, democracy never lasts long. It soon
wastes, exhausts, and murders itself. There never
was a democracy that did not commit suicide.'

John Marshall: 'Between a balanced republic and a democracy,
the difference is like that between order and
chaos.'

[cleek]

Congress has stopped originating amendments

well, they've been unable to get them passed. but they're still trying. for example:

2006 : Flag Burning Amendment, failed by one vote
2006 : Federal Marriage Amendment. failed.

[Nate]

crafty: That's eerie.

1) Chief Justice Taney et al., in a decision based on lousy reasoning and worse history, force the whole country to live by slaveholder state rules. pretend George W. Bush was elected long enough for 9/11 to scare the crap out of people.

2) We The People get angry enough to elect a moderate, incremental abolitionist non-reactionary as President.

3) The South panics at the thought that its power grab might be effectively opposed, murders federal garrison troops, seizes Army property, and secedes, without even an attempt to call a convention. whines and calls him a socialist and spreads panic rumors about gun seizures and "socialists" and threatens to secede.\

That doesn't really bode well.

[Turbulence]

John Adams: 'Remember, democracy never lasts long. It soon
wastes, exhausts, and murders itself. There never
was a democracy that did not commit suicide.'

John Marshall: 'Between a balanced republic and a democracy,
the difference is like that between order and
chaos.'

Why should we assume that these gentlemen are correct? I mean, shouldn't you have to at least make an argument and present some evidence rather than just asserting stuff?

The Adams quote is absurd even if you agree with his unsupported assumptions: simply because democratic governments do not last indefinitely, we cannot assume that the form of government Adams favored does any better. To put it another way, I might say that everyone should drink tea because we know that historically, all coffee drinkers eventually die. Even if coffee really does kill you, that doesn't tell us anything at all about the comparative death rates associated with drinking tea or, indeed, anything else.

I'm curious GoodOleBoy: do you think that if we had never passed the 17th amendment (or made equivalent changes to the government's structure), the United States would survive with the same government structure forever? Or do you believe that like all things, the United States as a political entity must end?

[Sebastian]

The Georgia stuff is stupid.

The conversation has drifted, however and I want to comment on:

"You would go to a court, and the court would impartially decide whether you had cause to break the contract or what other steps should be taken to rectify the situation."

This is one of the many reasons why it would be wise not to advocate theories of jurisprudence which are heavy on judges personal feelings or personal moral understandings rather than the actuality of the contract. Because when it comes down to it, people begin to suspect that you can't find an court which can impartially decide such questions.

Which leads me stream-of-conciousness style to another question. The common claim for injecting the personal views of the judges is something like "the ambiguous terms HAVE to be interpreted by the judges". Even so, when interpreting a document, judges traditionally are not empowered to find via their personal views, but rather the views of the parties to the document. So why aren't they doing that?

[And to head off the 'what about common law' objection: Common law understood judicial interpretation of documents exactly as I described it. You are probably thinking of Common law as 'judge made law'. Historically it was always justified as natural law 'found' by the judges. Natural law theory is rather not well liked in general by proponents of living Constitutionalism for various reasons. But in any case that isn't what Marbury v. Madison judicial review is anyway. It is supposed to be common law textual analysis with the Constitution functioning as a law that can't be contradicted by Congress without an amendment.]

[Carleton Wu]

Maybe it's just me, but I don't remotely see how you got that interpretation out of what the quote from Brett. It's not what he wrote, and I don't see it being remotely implied by what he wrote.

Reaching back to an earlier part of Brett's argument: That's how it works in situations where the courts don't work for the party violating the contract, where the judges aren't being selected for their willingness to say that killing the daisies IS within the bounds of legitimate lawn care. I think it's rather absurd to pretend the courts are objective arbitors when they are employed by, and selected by, one of the parties to a dispute.

So it's an essential part of this argument that the new arrangement is not just another way of determining the will of the state; it's essential that the new arrangement be depriving the state of a voice in the federal judiciary. Not just that a specific proceedure has been changed, but that this proceedural change has put the federal judges in the hands of individuals inimincal to the rights of the states.
Thus, Brett is forced into all manner of odd, passive sentence constructions eg It even worked that way in practice, until the states got to having Senators elected instead of appointed.
"got to having", where it should read "chose to have". It's funny to watch Brett take the setence "Larry punched himself in the face" and try to construct a sentence where Larry has been assulted by some unnamed individual(s).

[Carleton Wu]

And the reason is evident: Congress tries to amend the Constitution when the courts say that something Congress wants to do is unconstitutional. And the courts have essentially stopped doing that.

FEC v. Wisconsin Right to Life, Inc (first amendment trumps federal campaign finance legislation)
Gall v. US, US v Booker, Kimbrough v US (judges do not have to adhere to federal sentencing guidelines)
Those are just in the past couple of years.
I hate to mindread, but I think you're actually saying that they don't enforce the Constitution as you interpret it, not that they aren't willing to alter or strike down federal legislation- because they clearly are.

The transformation wasn't complete until the 17th amendment, because even directly elected Senators had to worry that an outraged state government might reclaim it's power to control who represented it in the Senate, until that amendment took that power away.

The way you phrase it, the 17th amendment was enacted by the nasty federal government to deprive the states of this fucntion- but the state legislatures themselves (3/4th of them, anyway) did this.
This IMO wrecks your argument. The state legislatures chose to have it this way, ergo it's the will of the state legislatures, ergo arguing that it stymies the will of the state legislatures is nonsensical. Unless there was some kind of duress involved.
And again, if the state legislatures were to find this objectionable, they could always seek to reverse this change- yet they don't do so.

[GoodOleBoy]

Turbulence,

I made no assertions but just quoted two people who were there and prominent at the founding. Its notable that you chose to address these quotes rather than other content of my comment.

I have no reason to change my view of what I think works best for the people of this nation whether the 17th amendment was passed or not. I cannot predict the future. I happen to think it was one of those creeping populist moments of crisis that could not be allowed to go to waste.

[Sebastian]

"Not just that a specific proceedure has been changed, but that this proceedural change has put the federal judges in the hands of individuals inimincal to the rights of the states."

And with rulings like Wickard, reading the Constitutional limit on Congressional action on commerce to "inter-state" commerce as if it just said "commerce", how could you ever think anything like that?

[Turbulence]

I made no assertions but just quoted two people who were there and prominent at the founding.

But why did you quote those two statements in this thread? Did you just pull those quotes randomly from the ether? Or were you trying to make some sort of point? If you were trying to make a point by including those quotes, what exactly was it?

Its notable that you chose to address these quotes rather than other content of my comment.

The remainder of your comment boiled down to "I agree with Brett." Now, maybe that's true and maybe it isn't, but I don't really feel qualified to comment on whether you do or don't agree with Brett.

[Carleton Wu]

And with rulings like Wickard, reading the Constitutional limit on Congressional action on commerce to "inter-state" commerce as if it just said "commerce", how could you ever think anything like that?

There have been a bunch of cases that predate the 17th which improved the position of the federal government vis a vis the states, so I dont think it's such a straight line from the 17th to a corrupt, power-hungry federal judiciary.
Fletcher v. Peck, McCulloch v. Maryland, Ableman v. Booth, and Missouri v. Holland (just after the 17th), and that's just off of the top of my wikipedia.

[GoodOleBoy]

Turbulence,

Could it be that since I do not believe the 17th amendment improves on the founders' original provisions and I do support each state having 2 senators unrelated to population, and I chose to include those quotes, that my point is that I am not an advocate of democracy in the purest sense? Maybe!

[Sebastian]

"There have been a bunch of cases that predate the 17th which improved the position of the federal government vis a vis the states, so I dont think it's such a straight line from the 17th to a corrupt, power-hungry federal judiciary."

I'm not sure Brett said that. I suspect he would say that the 17th was a step along the path.

So are you disagreeing about the implications of Wickard, or no? Isn't the kind of court that would rule that wheat grown on your own farm for personal use is subject to federal regulation as "interstate commerce" might be the kind of court you could have trouble trusting to decide when the federal government had gone too far?

[Brett Bellmore]

"I'm not sure Brett said that. I suspect he would say that the 17th was a step along the path."

Actually, I thought I was fairly explicit about the 17th amendment merely having finished what the states had begun by voluntarilly chosing to appoint Senators chosen by popular vote.

[Carleton Wu]

Actually, I thought I was fairly explicit about the 17th amendment merely having finished what the states had begun by voluntarilly chosing to appoint Senators chosen by popular vote

Then, if this entire process is part of the choice that the states made, I don't see your argument at all. If the states want a federal judiciary that empowers the federal government at the expense of the states, then how is this an erosion of state power *by* the federal government? It seems more like the original coming together of the 13 colonies- a ceding of power to a federal government for the advancement of the greater good.

I thought you were saying that the states couldn't get a fair trial at a court that was "selected by one of the parties to the dispute" "for their willingness to [violate their judicial oath and favor one party over another]".
But it sounds like the states chose this arrangement. So, really, it seems that you're objecting on their behalf to an arrangement that they actually wanted- eg they wanted to have popular election of Senators, and you think it's a bad idea.

Isn't the kind of court that would rule that wheat grown on your own farm for personal use is subject to federal regulation as "interstate commerce" might be the kind of court you could have trouble trusting to decide when the federal government had gone too far?

Is the kind of court that ruled as it did in Korematsu a court that can be trusted to safeguard civil liberties?
Sometimes. Sometimes not. The court is as good as the people who serve on it. The people who serve on it are as good as the President who appoints them and the Senators who approve them. Those elected officials are as good as the people.
We get the judges we deserve; sometimes, this puts us at risk of expediency over law, via strained readings (be it "interstate commerce" or "commander-in-chief")- but only when the people and their elected officials tolerate it. Bush v Gore leaps to mind here.

Baring some way to guarantee that judges adhere to their oath, I don't see a solution. But Im certain that the solution isn't having Brett be the final arbiter- he is as subject to human foibles as any, as driven by personal desire for certain outcomes as any, and has the defect of not being responsible to the people or their representatives nor having been chosen and vetted by them.

Serious, if someone can propose a better system for interpreting the Constitution than this (nb "listen to me" is not a better system), by all means do so.

[Sebastian]

Isn't the kind of court that would rule that wheat grown on your own farm for personal use is subject to federal regulation as "interstate commerce" might be the kind of court you could have trouble trusting to decide when the federal government had gone too far?

Is the kind of court that ruled as it did in Korematsu a court that can be trusted to safeguard civil liberties?
Sometimes. Sometimes not.

Doesn't that strike you as kind of a weird response? Wickard forms the basis for continued government control of non-interstate commerce to this very day. With very few extremely outlying exceptions (Lopez and Morrison) the general precept remains. (See also Raich). The court has pretty much run with Wickard for almost 80 years.

Korematsu's continuing legacy is to be criticized by everyone short of Michelle Malkin, and not thought of as good Constitutional precedent as swiftly as, well almost immediately after the war ended.

[Brett Bellmore]

"Then, if this entire process is part of the choice that the states made, I don't see your argument at all."

Let's be clear, my argument isn't based on the idea that state governments always anticipate the negative side-effects of their decisions, 50 or 100 years down the line. But that doesn't demand that we ignore them in retrospect, hind sight is supposed to be better than foresight.

Honestly, I think the Constitution is pretty much a lost cause at this point, a constitutional convention is very much a desperation move: The sort of bad faith 'interpretation' which did in the Constitution it endemic in the judiciary, and would reduce any amendments a convention generated to irrelevancy, just as it dealt with the 27th amendment.

But it's important to do the autopsy right, the Constitution will have a successor, and we don't want it to exhibit the same failure modes.

[Carleton Wu]

Doesn't that strike you as kind of a weird response?

Well, they aren't the same, I agree. It's an analogy. Given the significant amount of changes that have accreted around Wickard, I see the value in stare decisis- even if wrongly decided, this is the path that we are on. Just as the Louisana Purchase may have been extraconstitutional, but I see no reason to give it back and ask for a refund. Nor do I view it as an absolute evil.

Let's be clear, my argument isn't based on the idea that state governments always anticipate the negative side-effects of their decisions, 50 or 100 years down the line. But that doesn't demand that we ignore them in retrospect, hind sight is supposed to be better than foresight.

First, I do ask that individuals abide by the decisions that they make- there is no "do-over" clause for amendments. Or, as I see it, for membership in the United States.
But you're even now assuming a critical fact not in evidence- that the states which passed this amendment view it as a bad choice. As far as the evidence suggests anything, it suggests the opposite.

But it's important to do the autopsy right, the Constitution will have a successor, and we don't want it to exhibit the same failure modes.

It will rely on human judgements and interpretations of text. Some of these will be reasonable, but will still create dissent. Others will be less reasonable. But unless you've got a way to remove human judgement from the equation, Im not sure you're going to do any better, and might do much worse.

[Carleton Wu]

Doesn't that strike you as kind of a weird response?

Another thought- the point wasn't whether Wickard or Korematsu were good decisions. It was that bad decisions can be made by the court, under particular sociopolitical pressures or beliefs about necessity, without making the court into an invalid source for law forever. The court did decide Korematsu, and yet we still look to it to decide cases involving civil liberties. The court decided Wickard, and yet we can still look to them to invalidate federal laws that violate the Constitution or weigh states rights v federal rights. The court decided Bush v Gore, and yet we still look to them to decide equal protection election issues.

[russell]

"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"

That is the basis of the argument that led to this nation's founding.

Yes, it's true that the Civil War and its aftermath yielded a federal government stronger in relation to the states than it had been before.

Yes, it's true that there is some downside to that.

Life ain't perfect.

My personal take on all of this secessionist business is that it's a load of crap. It's an occasion for posturing.

But if these folks really, really want to go, I think we should let them go. Call in the lawyers, iron out the details, and cut the knot.

My old man was born in GA, I've been there a lot, I have a lot of affection for the place. But it's been a long time since GA or TX did anything for me that I can notice.

They don't want to be on the team anymore, they can take their bat and ball and go. It'd be worth it to me just to not have to listen to them anymore.

[Phil]

Let's be clear, my argument isn't based on the idea that state governments always anticipate the negative side-effects of their decisions, 50 or 100 years down the line.

What makes you so certain the state governments -- Georgia aside -- see the side-effects as negative?

Also, what's amusing is that I'll bet one of your own recent personal bugbears is Kelo, in which the Supreme Court essentially said that it isn't their job to tell the state of Connecticut what does and doesn't constitute "public use" in that state; it's a matter for the Connecticut state legislature. But I bet you think it was decided wrongly.

[Sebastian]

"It was that bad decisions can be made by the court, under particular sociopolitical pressures or beliefs about necessity, without making the court into an invalid source for law forever. The court did decide Korematsu, and yet we still look to it to decide cases involving civil liberties. The court decided Wickard, and yet we can still look to them to invalidate federal laws that violate the Constitution or weigh states rights v federal rights."

But that wasn't Brett's point. His point was that if it came down to it, with the federal government going ridiculously out of whack such that states might want to say that it had violated the Constitution enough that it had shredded the contract, the federal court system probably couldn't be trusted to fairly adjudicate it.

"or weigh states rights v federal rights."

Well for the most part I don't trust the courts to weigh state rights v. federal rights. I think I can in complete fairness suggest that the Court will almost always come down on the side of the federal government, and even more so if your prefered jurisprudence was completely ascendant.

[Brett Bellmore]

Yeah, funny thing: My position isn't that the courts shouldn't tell federal OR local governments that they can't do anything they want. It's that they should honestly enforce the Constitution, without fear or favor. Mostly this will cut against the federal government, because it's been usurping more and more power, with the acquiescence of judges appointed at the federal level. But sometimes it IS going to cut against state governments, because there ARE some things that state governments are constitutionally prohibited from doing, but do anyway.

Like taking one person's property, just to give it to another person. Rather than forcing a sale to the government, for the government to use for a public purpose.

You know, if New London had decided that they wanted to run a municipal marina and park, to be owned and run by New London, I'd have thought that was a bad idea. But it wouldn't have been unconstitutional.

Forcing one private citizen to sell to another? THAT was unconstitutional. But the Court wasn't in a mood to enforce that particular part of the Bill of Rights.

And that was wrong of the Court, even if it involved them ruling in favor of a state government.

[Sebastian]

"Also, what's amusing is that I'll bet one of your own recent personal bugbears is Kelo, in which the Supreme Court essentially said that it isn't their job to tell the state of Connecticut what does and doesn't constitute "public use" in that state"

This is actually another application of the problem that I have with the Wickard decision. If the interstate commerce clause really just means "all things that touch on commerce" why would the Constitution bother limiting it to interstate commerce?

If 'public use' just means "everything that a government might want to do with your stuff, including taking your house and giving it to someone else" why doesn't the takings clause just say "nor shall private property be taken without just compensation" instead of "nor shall private property be taken for public use, without just compensation". (I realize that this dares to assume the historical context of the clause was such that the idea it could be read as "nor shall private property be taken for public use, without just compensation (but private use for free would be totally cool)" but if you want to go whole hog like that you might as well abandon the Constitution entirely because I can kill any clause by playing that game).

Also the "can take it for private use for free" interpretation looks really weird in conjunction with the 3rd amendment "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."
Not that you are advocating such an interpretation, just wanted to head that one off at the pass.

[Phil]

Forcing one private citizen to sell to another? THAT was unconstitutional.

Hey, how did we get al those railroads?

[Phil]

Also, Brett, you still haven't commented on Georgia's 140-year-long violation of the 14th and 15th Amendments, which should actually have "invalidated the contract" in favor of the Feds and against Georgia long ago. Nothing to say there, huh?

[Carleton Wu]

Yeah, funny thing: My position isn't that the courts shouldn't tell federal OR local governments that they can't do anything they want. It's that they should honestly enforce the Constitution, without fear or favor.

Even funnier thing- it turns out that the 'honest' interpretation is exactly what you want it to be. Thus saving you the trouble of needing a court to produce an opinion. But it still leaves us with a conundrum- either we annoint you the Constitutional Interpreter For Life, or we depend on mere humans to interpret the document for us.
Unsurprisingly, we chose the second way there.

Forcing one private citizen to sell to another? THAT was unconstitutional. But the Court wasn't in a mood to enforce that particular part of the Bill of Rights.

Case in point- it's like you don't even recognize the debate over the meaning of the phrase "public purpose"- you know what outcome you want, ergo you know what it's supposed to mean, ergo everyone who disagrees with you is disagreeing in bad faith. After all, who could possibly have a disagreement over the meaning of "freedom of speech", or "public purpose", "full faith and credit", etc.

[Carleton Wu]

But that wasn't Brett's point. His point was that if it came down to it, with the federal government going ridiculously out of whack such that states might want to say that it had violated the Constitution enough that it had shredded the contract, the federal court system probably couldn't be trusted to fairly adjudicate it.

Im not the one who brought up Wickard; if you want to use Wickard as proof that the court system has gone out of whack, then I think Korematsu is proof that the court system cannot be trusted with civil rights. Bush v Gore is proof that it cannot be trusted with matters relating to elections and politics.
A single decision, even a bad one, doesn't invalidate the court's standing as the arbiter of constitutional meaning.

Now, that doesn't prove that Brett is wrong- perhaps the court is, in fact, unreasonably biased towards the federal government and against the states. But so far, all he's offered as proof is that the states chose to elect their Senators in a different way, and a false suggestion that the court doesn't ever strike down federal laws as unconstitutional. You offered Wickard- and again, that's maybe not a good ruling, but not conclusive evidence that the court is in the bag.

Finally, there is a simple, simple out if the states feel that the US government is ignoring the constitution- they can amend it to make it more clear, or they can call a convention and remake it wholesale. But the states don't seem to be pursuing this option- perhaps because only two or three of them have expressed these sorts of feelings, and that 2 or 3 isn't enough to perform this sort of action. 2 or 3 isn't even enough to block an amendment making "Screw Georgia" the national anthem.

If 'public use' just means "everything that a government might want to do with your stuff, including taking your house and giving it to someone else" why doesn't the takings clause just say "nor shall private property be taken without just compensation" instead of "nor shall private property be taken for public use, without just compensation".

First, do you hold to the same priciples regarding the 2nd amendment? (nb I dont for the most part, just wondering).
Second, yes, this does seem like exactly the sort of hyper-parsing that you decry moments later. Consider Amendment XIII part 2: Congress shall have power to enforce this article by appropriate legislation. Does that mean Congress can't enforce it with inappropriate legislation? Why did they insert "appropriate" here? According to your thinking, it *must* have legal weight in some manner, or else it would have been excluded as superfluous.

[Brett Bellmore]

"Case in point- it's like you don't even recognize the debate over the meaning of the phrase "public purpose"

Case in point, indeed: It's like you don't even notice that it doesn't say "public purpose", it says "public USE".

[Sebastian]

"Im not the one who brought up Wickard; if you want to use Wickard as proof that the court system has gone out of whack, then I think Korematsu is proof that the court system cannot be trusted with civil rights. Bush v Gore is proof that it cannot be trusted with matters relating to elections and politics.
A single decision, even a bad one, doesn't invalidate the court's standing as the arbiter of constitutional meaning."

Korematsu can be framed as a single decision. We aren't rounding up Saudi Arabians in the US and putting them in camps for instance.

Wickard can't really be framed as a single decision. Extensions of federal power based on that are ongoing, and getting larger all the time.

It is difficult for me to believe that you think those are really equivalent concepts.

"Case in point- it's like you don't even recognize the debate over the meaning of the phrase "public purpose"- you know what outcome you want, ergo you know what it's supposed to mean, ergo everyone who disagrees with you is disagreeing in bad faith."

Public USE! The whole point is that not all public purposes are the same as public uses. You want to use eminent domain to turn my land into a park or a courthouse or a freeway for public use and the Constitution allows it. You want to give it to a developer so that he can create other richer people's stuff on it, that isn't public USE even if you can get more tax money out of the richer people who are paying more for it (which is the public purpose discussed). And even the state who did it knew that, which is why they pretended that the Constitution said public purpose (i.e. ANYTHING) rather than public use.

First, do you hold to the same priciples regarding the 2nd amendment? (nb I dont for the most part, just wondering).
Second, yes, this does seem like exactly the sort of hyper-parsing that you decry moments later. Consider Amendment XIII part 2: Congress shall have power to enforce this article by appropriate legislation. Does that mean Congress can't enforce it with inappropriate legislation?

I'm not even sure what you mean. First, you're drifting. The original discussion was about how Wickard turned all the jurisprudence on interstate commerce into jurisprudence which included even intrastate commerce. The transition from "The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes" to "The Congress shall have power . . . To regulate commerce with foreign nations, and anything in an individual state that might hypothetically impact interstate commerce no matter how indirectly or sligtly or imaginatively including growing food for personal consumption on your land, and with the Indian tribes".

Changing "commerce between the states" into "even intrastate non-commerce" is rather different than being confused about the importance of 'appropriate' don't you think?

Second, it is amazing that you would think 'for public use' is just extraneous language in the sense that you are advocating.

Do, you think that anyone at the time of the founding would have been ok with eminent domain for the purpose of removing you and giving the president's cousin your house just because he wanted it? Again, how does that square with the 3rd amendment which wouldn't even let soldiers stay in your house temporarily in peacetime? It is practically the definition of corruption, and is exactly the kind of thing that a king would do, which they bothered writing a Constitution to avoid.

Can I write out just a couple of words from the 8th Amendment like that? "Cruel and Unusual" don't seem that important.

And really isn't the 1st amendment essentially about press protection? 'Speech' probably doesn't mean anything either.

Are these the kind of implications you are seriously allowing for, or does your argument have an obvious limit somewhere that I'm missing?

[Carleton Wu]

Case in point, indeed: It's like you don't even notice that it doesn't say "public purpose", it says "public USE".

Snark masquerading as rebuttal. Yes, I mistyped one of the holy words of the Constitution.
I take it you don't have an actual point to make.

[Carleton Wu]

Wickard can't really be framed as a single decision. Extensions of federal power based on that are ongoing, and getting larger all the time.

Id want some examples- I can't really debate a proposition like this one.

I'm not even sure what you mean. First, you're drifting.

Im trying to respond to your multifaceted arguments.

Second, it is amazing that you would think 'for public use' is just extraneous language in the sense that you are advocating.

Consider Eldred v Ashcroft. From a results standpoint, I would've liked to see Eldred prevail, but I don't find the case convincing for the same reason I do think Kelo was correctly decided- I believe that these phrases concerning purpose are similar to the "appropriate" use in the 13th amendment- they are not intended to act as judicially-enforced restrictions of those powers, but as a justification for their existence and a guideline for their use. As these powers are practiced by the legislatures, I believe that they are properly controlled by the people, rather than having the courts ajudicate whether something is truly a "public use", is "appropriate", or "promote[s] the progress of science".
The second amendment I consider differently, because it is not a grant of a legislative power.

This btw is a great example of how different parties can read the same Constitution in good faith and reach different understandings. I can agree that Eldred's case comes from a reasonable reading of the Constitution, just not the one I agree with (for several reasons).

Are these the kind of implications you are seriously allowing for, or does your argument have an obvious limit somewhere that I'm missing?

I notice that neither you nor Brett engaged on the 2nd amendment- does the bit about the militia mean that there is no fundamental freedom to bear arms? The 'Sebastian Rule of Constitutional Parsimony' suggests that they meant something with all of that verbiage, ergo there is no pure right to bear arms.
So yes- what you're missing is that everyone interprets- Id be profoundly surprised if Brett doesn't believe that the 2nd amendment- despite all it's excess language- merely protects a right to bear arms. The language of the Constitution does not admit to a single, indisputable meaning.

Do, you think that anyone at the time of the founding would have been ok with eminent domain for the purpose of removing you and giving the president's cousin your house just because he wanted it?

You mean the guys who passed the Alien and Sedition Acts? Im not sure. I suspect they would've objected, but I suspect they would've objected via their legislatures since they didnt have judicial review yet.

Im surprised to have to remind you of this, but just because something is bad does not mean it has a constitutional remedy.

Again, how does that square with the 3rd amendment which wouldn't even let soldiers stay in your house temporarily in peacetime?

Id say it squares by being two entirely different and unrelated matters. Does some emanation of the penumbra of the 3rd suggest a different reading of "public use"? If it does, then you're maybe departing a wee bit from Originalism.

It is practically the definition of corruption, and is exactly the kind of thing that a king would do, which they bothered writing a Constitution to avoid.

Im sure that many of the powers granted to the president, congress, etc can be used in a corrupt manner (eg laws, pardons, military commissions, etc), while adhering to the letter of the Constitution. That is, the Constitution is not intended to protect us from any possible corrupt behavior. Nor "behavior that a king might perform", such as eating pheasant eggs for breakfast.

[Sebastian]

"I believe that these phrases concerning purpose are similar to the "appropriate" use in the 13th amendment- they are not intended to act as judicially-enforced restrictions of those powers, but as a justification for their existence and a guideline for their use. As these powers are practiced by the legislatures, I believe that they are properly controlled by the people, rather than having the courts ajudicate whether something is truly a "public use", is "appropriate", or "promote[s] the progress of science".
The second amendment I consider differently, because it is not a grant of a legislative power."

You seem to be suggesting that grants of legislative power are unlimited and beyond judicial review, while protection of rights is not. If this is a correct understanding of your view, it seems very odd. Why couldn't grants of legislative power be limited precisely because limiting them protects rights?

As for the second amendment, the problem you seem to allude to only exists by misinterpretation of militia as meaning something limited like the paid national guard. Without that, there isn't a problem.

[In reference to public use and my question about eminent domain for the purpose of giving your house to the president's cousin] "Im surprised to have to remind you of this, but just because something is bad does not mean it has a constitutional remedy."

Now I can't tell if you're being serious. Please confirm that in your understanding of how to analyze the Constitution, 'public use' has no judicially applicable value.

Because if you seriously think that the government taking your house and giving it to someone else's private use is something which ought to fall under 'bad but constitutional' I have to admit that I'm completely shocked.

[Sebastian]

On further thought, I'm even more confused by your view on legislative powers vs. rights.

You write

As these powers are practiced by the legislatures, I believe that they are properly controlled by the people, rather than having the courts ajudicate whether something is truly a "public use", is "appropriate", or "promote[s] the progress of science".

I can see this as being a coherent view for someone who pretty much doesn't believe in judicial review at all. I find it hard to understand from someone who seems to believe that at least some of the amendments protect actual rights. If "taken for public use" is beyond judicial review, are the following clauses from the exact same amendment also beyond judicial review: "presentment or indictment of a Grand Jury", "the same offense to be twice put in jeopardy of life or limb", "compelled", "in any criminal case", "to be a witness against himself".

Why shouldn't you believe that they are properly controlled by the people, rather than having the courts adjudicate whether something is truly "compelled in any criminal case to be a witness against himself"?

[Brett Bellmore]

Actually, Wu, that would be a rebuttal dismissed as snark; The point is that it DOES say "use", and the courts are acting as though it says "purpose". Your only mistake was forgetting for a moment that it doesn't actually say what it's being taken to mean.

"I notice that neither you nor Brett engaged on the 2nd amendment"

How tiresome. Yes, the militia language has meaning: It means that it's a right to keep and bear military arms.

[John Miller]

Sebastian, just a quick questioon regarding your last response. And it is a serious question, not snark. How do you interpret the term militia as used in the Second Amendment?

[Sebastian]

I would historically interpret the 2nd amendment referenced 'militia' to be any abled bodied male (probably white) citizen in the country. The 14th amendment extends the 2nd to all citizens (probably through the privileges and immunities clause) though modern jurisprudence would probably try to force it through the due process clause.

[John Miller]

I was wondering as a study of the Second Amendment shows that historically it was meant to prevent the need for a standing army. Obviously, that didn't work. At least your interpretation is a lot saner than Brett's which means that I would have the right to own and carry RPG's etc,

[Sebastian]

I think the RPG question is resolved on the historical difference between 'arms' (more like guns) and 'ordnance' (more like bombs or artillery) which has sort of blended together over time. But I'm not as sure of that one.

I'm not sure how sustainable that distinction will continue to be though. At some point arms will be as powerful as bombs. At which point a clarifying amendment would be proper Constitutional response. But that is probably not the way it will actually be dealt with. (Which is too bad. I'm pretty sure you could get a broad enough majority against the city destroying anti-matter gun, but I doubt the process will be used).

[Brett Bellmore]

"I think the RPG question is resolved on the historical difference between 'arms' (more like guns) and 'ordnance' (more like bombs or artillery) which has sort of blended together over time. "

That's my take on it: "Arms" refers to the weapons an ordinary soldier would be expected to carry about on his person. They don't issue you RPGs when you graduate from boot camp. But if they did, they'd be "arms".

As I understand it, the 2nd amendment was supposed to safeguard the potential to raise a militia, even in the event the government decided to discontinue one, by ensuring that the population had access to the same arms they'd be expected to show up with for militia service.

Ergo, the protected arms are those arms you would be expected to show up with if called to duty as a militia member. NOT, as Scalia would have it, those arms the government happens to feel like allowing civilians to possess.

[Carleton Wu]

Actually, Wu, that would be a rebuttal dismissed as snark; The point is that it DOES say "use", and the courts are acting as though it says "purpose". Your only mistake was forgetting for a moment that it doesn't actually say what it's being taken to mean.

I see- you have no desire to continue to debate the substance of the matter; I have made a typo, and this gives you the cover you need to exit the field hastily while simultaneously proclaiming victory.

I suppose I ought to have taken the opportunity to do something similar when you mistakenly suggested that the court hasn't recently struck down federal legislation as unconstitutional. Of course, I was more interested in the debate itself rather than some lazy proclamation of victory based on a mistake.

So, go buy yourself a beer. But make sure it's a cheap, watery brand, let the reward fit the accomplishment.

[Carleton Wu]

You seem to be suggesting that grants of legislative power are unlimited and beyond judicial review, while protection of rights is not. If this is a correct understanding of your view, it seems very odd. Why couldn't grants of legislative power be limited precisely because limiting them protects rights?

'unlimited' is an odd choice of words here; granting a specific legislative power is limited to the exercise of that legislative power. What Im arguing is that the phrases referred to (eg ""promote[s] the progress of science") aren't meant to constrain the powers being granted, but to explain their purpose. Practically, I think that something as vague as the progress of science is best judged by the legislative branch, with their responseness to popular opinion. Whereas individual rights such as speech must be protected from changes in popular opinion.

As for the second amendment, the problem you seem to allude to only exists by misinterpretation of militia as meaning something limited like the paid national guard. Without that, there isn't a problem.

On the contrary, Im following exactly the proceedure outlined by you- if the exact right granted could have been conveyed by only the final clause of the 2nd, then the Framers would have merely written that clause. You pronounced in no uncertain terms that this is an unacceptable way to interpret the Constitution, that there is no superfuous verbiage, that if a word exists when it could be omitted it must have served a purpose- so I was wondering if it would conitnue to be unacceptable to you when it produced the outcome that you do prefer. It appears not.

The funny thing is, I agree with your case here- the main clause of the 2nd is about the rationale IMO. It doesn't restrict the right, except insofar as by declaring purpose it allows to us weight it properly against other rights.
I just feel comfortable extending that same concept to the takings clause. And, unfortunately, to the copywright clause, although Id rather not based on outcome.

Now I can't tell if you're being serious. Please confirm that in your understanding of how to analyze the Constitution, 'public use' has no judicially applicable value.

That is correct. It is a matter for the legislatures, presidents, and the people. In my opinion. But you forget that the Constitution as written did not even envision judicial review- I suspect that much that is today considered justicable was envisioned at the time as being subject to popular review rather than decided in the courts.
Which Im not unhappy about- in many cases, judicial review is IMO much better for protecting rights than legislatures. But don't make the mistake of thinking that this was conceptualized by the Founders and that they had specific ideas about which clauses would be justiciable and which would not.

Because if you seriously think that the government taking your house and giving it to someone else's private use is something which ought to fall under 'bad but constitutional' I have to admit that I'm completely shocked.

Sorry about that. But yes, I do. As long as they compensate me.
Which doesn't mean I wouldn't strenuously object if they did this to anyone. Actually, Im surprised to some extent at your attitude here- if I genuinely think that this is the best reading of the Constitution, Im compelled to this viewpoint, regardless of whether I think it's a good idea or not. I would think you would be sympathetic to a non-results-based interpretation.

Why shouldn't you believe that they are properly controlled by the people, rather than having the courts adjudicate whether something is truly "compelled in any criminal case to be a witness against himself"?

I think we've already gone over this point; I think the Constitution certainly contains a justicable protection against being relieved of one's property without compensation. But I don't think that the "public use" part of the phrase protects a right. I believe that, like the "progress" phrase, the "appropriate" phrase, or the "militia" phrase, that the Constitution is expounding upon the rationale so as to make the right or power clear in purpose.
And you don't either- you clearly reject the idea that the "militia" clause has a signficant impact on the right to bear arms contained in the second half of the amendment. My only curiosity is this: since you're clearly practicing outcome-based interpretation, why do you believe that we must all agree with you about the best outcome?

[Carleton Wu]

That's my take on it: "Arms" refers to the weapons an ordinary soldier would be expected to carry about on his person. They don't issue you RPGs when you graduate from boot camp. But if they did, they'd be "arms".

RPGs and grenades are an incredibly common weapon on modern battlefields. And, of course, there is a commonly-used grenade launcher that fits on the M-16.

Today, grenades, RPGs, mortars, etc are required for even the flimsiest of insurgent forces.

Me, though, Im an originalist bred to the bone- the 2nd protects the right as understood at the time- ie flintlocks.

[Carleton Wu]

Sebastian,
I think Im done- hopefully you've established that I am not a True Believer, and cannot be brought to see the Single Possible Interpretation from the holy Constitution.
And, for my part, it's clear that you are too aware of the precepice- you know that to admit of the possibility of varation in interpretation, even for the tremendously broad phrases of the document", leads down the slippery slope to where your interpretation isn't privileged over every other interpretation. So you aren't going there, no way, no how.
I see no real way to move forward, so let's move on. But I've enjoyed it, fwiw, hope you have as well.

[Sebastian]

'unlimited' is an odd choice of words here; granting a specific legislative power is limited to the exercise of that legislative power. What Im arguing is that the phrases referred to (eg ""promote[s] the progress of science") aren't meant to constrain the powers being granted, but to explain their purpose. Practically, I think that something as vague as the progress of science is best judged by the legislative branch, with their responseness to popular opinion. Whereas individual rights such as speech must be protected from changes in popular opinion.

...

I think we've already gone over this point; I think the Constitution certainly contains a justicable protection against being relieved of one's property without compensation. But I don't think that the "public use" part of the phrase protects a right. I believe that, like the "progress" phrase, the "appropriate" phrase, or the "militia" phrase, that the Constitution is expounding upon the rationale so as to make the right or power clear in purpose.

It is difficult to understand the differences you are drawing between making the right or power clear in purpose and restricting them. If the purpose of the interstate commerce clause is to regulate interstate commerce, it is NOT to regulate intrastate commerce. If the purpose of the takings clause is to govern the takings for public use, it is NOT about takings for private use.

I guess I don't understand how you distinguish between the rights that you think should be protected by the courts and those that aren't.

For example, "nor shall be compelled in any criminal case to be a witness against himself". I'm relatively sure that you wouldn't argue that 'criminal case' is just extra explanatory language the way you seem to argue that 'public use' is. But it is not at all obvious why. Why isn't "witness against himself" the only operative language?

[Carleton Wu]

If the purpose of the takings clause is to govern the takings for public use, it is NOT about takings for private use.

If the purpose of the second amendment is to arm the militia, then it is not about a general right to own weapons. Right?

First, I don't think you've addressed the lack of judicial review in the Constitution as originally envisioned. Lacking this, there was no distinction in the minds of the framers between laws that could be invalidated by the courts and laws that could not- this is an artificial, post-facto distinction. Now, I think judicial review is just peachy, but I don't mind admitting that it's not in the original document, it's an accommodation that we invented to fill a gap present in the that document.
You ought not support it (being a non-textual innovation), but even if you do I think that you can't expect an originalist reading to be able to distinguish between cases that should go to the court & those that should not. afaict, the original intent was that all matters would be safeguarded by the legislature itself, governed by the people (who would be expected to jealously guard their own rights).

Second, let's consider cases:
1a)A highway is planned, and land is acquired via eminent domain, but after a few years the highway project is abandoned. In the meantime, the land has doubled in value. Must the land be given back to the original owners at the original cost? Or should the original owners get the right of first refusal, but at the new, higher cost? Or can the state just sell it to anyone?
1b)Eminent domain was used to build a canal-transshipment project 100 years ago. The canal is no longer in use, and the state wishes to sell the land. Must they give it back to the original owner's descendants at the original cost? Or with interest? Or at current value? Or can they just sell it?
2)A city plans a new port, including both public (docks) and private (warehouse) uses. Can it use eminent domain to acquire the entire parcel? What percentage of 'private use' is acceptable? Can I allow a private hot dog vendor to work in a public park acquired via eminent domain, or is that a 'private use'? How about allowing a private paddleboat-leasing company to rent a space in the park? Own a space in the park?

To me, those practical questions are much better placed in the legislature than in the court. The legislature is already making most of the considerations regarding eminent domain, including the balancing between the negative of compelling a property sale versus the public good from the envisioned use.

[Gary Farber]

"Lacking this, there was no distinction in the minds of the framers between laws that could be invalidated by the courts and laws that could not- this is an artificial, post-facto distinction. Now, I think judicial review is just peachy, but I don't mind admitting that it's not in the original document, it's an accommodation that we invented to fill a gap present in the that document."

IANAL, but it isn't clear to me that this is true.

First of all, at worst, the "we" here were the Federalists of 1801, who aren't exactly johnnie-come-latelies. Ditto John Marshall.

Second of all:

[...] The Constitution does not expressly provide for judicial review. What should be made of this fact? Does it suggest that the framers did not intend to give the courts such a power? Not necessarily, although that is one explanation for its absence. It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated. A third possibility is that the framers didn't think that the issue would ever come up, because Congress would never pass legislation outside of its enumerated powers.

Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review. Of those that did so, nine generally supported the idea and two opposed. One delegate, James Wilson, argued that the courts should have the even broader power to strike down any unjust federal or state legislation. It may also be worth noting that over half of the thirteen original states gave their own judges some power of judicial review.

Thus, it's not clear to me that this is true:

afaict, the original intent was that all matters would be safeguarded by the legislature itself, governed by the people (who would be expected to jealously guard their own rights).

Original intent of who, specifically?

[Sebastian]

"First, I don't think you've addressed the lack of judicial review in the Constitution as originally envisioned. Lacking this, there was no distinction in the minds of the framers between laws that could be invalidated by the courts and laws that could not- this is an artificial, post-facto distinction."

I'm not entirely sure this is the case. The role of the courts in interpreting contracts was well established. Of course it was well established as trying to find the intent of the parties when there was an ambiguity (which is so far from what the Supreme Court does now as to be laughable), but still.

Now if you are arguing that they saw the role of the courts as rather limited (i.e. they would never have imagined that serious commentators like Balkin might say things like "Elections matter, but primarily because they decide who becomes President and who holds the balance of power in the Senate, thus affecting who gets appointed to the courts.") I'm right there with you.

If you think they would have been surprised to find that a general right to privacy had been created without any particular touchstone, sure. But would they have appealed to the Supreme Court if Congress immediately tried to directly flout the Constitution by quartering soldiers in private homes during peacetime? I don't see why not.

"You ought not support it (being a non-textual innovation), but even if you do I think that you can't expect an originalist reading to be able to distinguish between cases that should go to the court & those that should not."

I'm not asking how some hypothetical person makes the distinction. I'm asking how YOU make the distinction. It seems random, which is an odd basis for jurisprudence.

As for your hypotheticals:

1a) taken for public use, but not used for public use. Close call. I can see it either way. I'd probably rule that it must be returned to the original owners at the eminent domain price. But on the other hand the argument for it beloning to the government free and clear is pretty good too, so long as it was a corrupt or fraudulent transaction disguised as eminent domain.

1b) taken for public use, used for public use, clear title to government.

1c) I know you didn't have a 1c) but what about an in between number of years like used for a public dock for 1 year and then sold at a lower than market price to a developer. I would want serious fraud/corruption investigations, but if it could be shown that they had a serious public use initially, I'd say it was Constitutional. Crappy, but constitutional.

2) I would say at a minimum it should be majority public use. Private hot dog sellers and private warehousing isn't a problem so long as the city leases non-preferentially. If I owned a park I could lease to a hot dog seller. Therefore so could the government. If I owned a dock, I could lease to a warehouse company. So could the government. The problem in Kelo is preferential (i.e. non-market) treatment. The developers could pay market prices for the houses. But they didn't want to.

I don't mind the idea that there should be deference to the legislature on public use issues. There may very well be a large number of border cases that would make me uncomfortable, but would nevertheless be constitutional.

That isn't the same thing at all as saying that the "public use" concept is totally off limits to the courts, and that whatever the government says is "public use" is really public use.

[Carleton Wu]

I'm not entirely sure this is the case. The role of the courts in interpreting contracts was well established.

But the role of courts in invalidating laws that violated a constitution was not; in the English system courts could act counter to laws or government actions when those violated unwritten rights (eg habeas), but I don't think there was a written structure which laws had to be judged against. Not sure about this though.
At least, this is enough of a novelty that 1)it does not appear to have existed before Marbury v Madison and 2)if it had been originally intended, as something of a novelty it might well have been explicitly included.

I do think that eg the habeas langauge of the Constitution indicates a common law right that the Founders did not feel it explicitly necessary to mention, so there are certainly areas where they were relying on English law for their understanding of the underlying structures. So your case is plausible. But again, if you argue for a single possible interpretation, it seems that you'd be against having to weigh unwritten assumptions that may or may not have been intended by the authors.
For example, if the Founders hadn't thought to include the clause limiting the suspension of habeas, many would hold that a habeas right did not exist (indeed, some argue that this clause doesn't imply habeas exists, just that if habeas is created by law it can only be suspended under certain circumstances- I find that unprintably unpersuasive though).

If you think they would have been surprised to find that a general right to privacy had been created without any particular touchstone, sure. But would they have appealed to the Supreme Court if Congress immediately tried to directly flout the Constitution by quartering soldiers in private homes during peacetime? I don't see why not.

There is the example of the Alien and Sedition Acts; Jefferson felt them unconstitutional, but did not take the matter to the courts. Instead, he rallied the public against them. Given that example, I don't think that you're correct; at least, that's not the most parsimonious reading of the history (ie Jefferson is not an embodiment of the Founders, so his actions and beliefs aren't definitive- or, perhaps he made a political calculation rather than a legal one, in pursuing public pressure rather than legal remedies).

I don't have evidence for this, but my bet is that the Founders would've found such a solution dangerous because of the risk that the court would become a political creature, and that the people would become over-reliant on its judgements rather than their own understandings of their freedoms.
Certainly, the result of the Alien and Sedition Acts validates this hope- the Federalists were tossed out and broken as a party.

I'm not asking how some hypothetical person makes the distinction. I'm asking how YOU make the distinction. It seems random, which is an odd basis for jurisprudence.

Ah, ok. The simplest part of it to me is areas of judgement- which branch is best equipped to determine whether a particular law encourages scientific progress? Which branch is best equipped to handle the judgements from the hypothetical domain cases? Which branch best can determine whether legislation is "appropriate" for enforcing the 13th amendment? And, an additional advantage- based on your answers, where the court would have to determine whether the legislative public plan was genuine or fradulent, this seems like a terrible mess. Easiest solution- let the voters decide whether their representatives are corrupt or not; let them decide if the laws favor scientific progress, etc.
If all the legislature has to do is claim a public use, and then change their mind, then there isn't much of a right to protect in the first place- this would be like a right against coerced confessions where the only requirement is that the police sign a statement that the confession wasn't coerced. And what would protects us from this sort of legerdermain by the legislature? The people again, who might well object to a bait-and-switch- so why not put them in charge to begin with?

Im curious what you think about the Eldred decision- should the courts have the power to decide whether Congress is truly enabling intellectual progress?

[Sebastian]

"I do think that eg the habeas langauge of the Constitution indicates a common law right that the Founders did not feel it explicitly necessary to mention, so there are certainly areas where they were relying on English law for their understanding of the underlying structures. So your case is plausible. But again, if you argue for a single possible interpretation, it seems that you'd be against having to weigh unwritten assumptions that may or may not have been intended by the authors."

I don't understand how the one implies the other. And I'm not even sure that we are talking about "single possible interpretation", you're the one arguing that "public use" has no legal value. We haven't even gotten to the issue of what the possible ranges of legal value might be.

But even given that, of course there are going to be underlying assumptions. You have to assume that the words written are in English for example, and not some other language that merely happens to look deceptively like English. Everything has underlying assumptions. The fact that they aren't explicit doesn't mean that they aren't real, and it certainly doesn't mean that many of them aren't definite.

But some jurisprudence techniques take that fact to mean that they can dispense with analyzing them entirely. That doesn't follow at all. Just because the document doesn't begin with "This document is in English" doesn't mean that it isn't in English. And even saying that it was wouldn't be enough because "This document is in English" could be a code too!

The simplest part of it to me is areas of judgement- which branch is best equipped to determine whether a particular law encourages scientific progress? Which branch is best equipped to handle the judgements from the hypothetical domain cases? Which branch best can determine whether legislation is "appropriate" for enforcing the 13th amendment? And, an additional advantage- based on your answers, where the court would have to determine whether the legislative public plan was genuine or fradulent, this seems like a terrible mess. Easiest solution- let the voters decide whether their representatives are corrupt or not; let them decide if the laws favor scientific progress, etc.

This isn't a really helpful answer. How do you decide which branch is best equipped to decide on eminent domain issues? How do you decide which branch is best equipped to decide on "cruel and unusual"? How do you decide which branch is best equipped to decide on "free speech"? I can see a perfectly convincing argument that the judiciary isn't best equipped to decide any of those.

And, I'm anticipating so correct me if I'm wrong, if you want to drag in stuff about the Court being empowered to protect minority interests, eminent domain is a classic case for that.

[Carleton Wu]

I don't understand how the one implies the other. And I'm not even sure that we are talking about "single possible interpretation", you're the one arguing that "public use" has no legal value. We haven't even gotten to the issue of what the possible ranges of legal value might be.

I mean, I recognize that reading the "public use" language as something that should be enforced as a right in the courts is reasonable. I think the Constitution is open to a great deal of leeway in interpretation, and that funamentally it's up to the people to decide (via slow mechanisms that safeguard us from panics and fashions) what these rights mean.
That doesn't mean that the document should be infinitely mutable- as I say, I would've liked Eldred to have been right, but the language as Im interpreting it just doesn't support that. Wickard doesn't hold water. etc.

But even given that, of course there are going to be underlying assumptions. You have to assume that the words written are in English for example....The fact that they aren't explicit doesn't mean that they aren't real, and it certainly doesn't mean that many of them aren't definite.

There may be trivial assumptions that we can all agree on eg the document is written in English.
There are nontrivial assumptions as well though, and the existence of trivial assumptions which we can all agree on easily shouldn't suggest that the nontrivial ones also have singular straighforward answers.

This isn't a really helpful answer. How do you decide which branch is best equipped to decide on eminent domain issues? How do you decide which branch is best equipped to decide on "cruel and unusual"? How do you decide which branch is best equipped to decide on "free speech"? I can see a perfectly convincing argument that the judiciary isn't best equipped to decide any of those.

In fact, I would argue that the original intent did not necessarily envision protecting any of these via judicial intervention, but we've been through that already.
My decision here is mostly practical; I don't see how a court easily applies a rights-based interpretation of "public use" in evaluating all manner of boundary cases- deciding how much, how long, what the intent of the legislature was, etc. Furthermore, the balancing in determining "public use" isn't balancing against other rights (eg speech, assembly), but against practical matters such as planning alternatives. And the nature of eminent domain prevents it from easily being used eg punatively against a minority, so citizens have an roughly similar need to prevent overreaching by the legislature.
Whereas I think the court is well-situated to determine what "free speech" should mean, and to weigh it against other rights.

It's the same reason I think judicial review was an excellent innvation- it has grounding in English law, it performs an admirable function in shielding Constitutional interpretation from the vagaries of the moment, it centralizes interpretation (during the Alien & Sedition crisis, states were passing laws favoring one interpretation or another of the free speech clause), and it maintains a long-term responsiveness to the rights as they are understood by the people. But it's not literally in the text.

I think that we all do this when we weigh possible interpretations of the text- we consider the outcomes, the implications of the various interpretations, their practical value. That is, we're all outcome-based in a broad sense.