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July 10, 2018

Comments

I'm asking how a living constitutionalist knows that a ruling is incorrect

I wonder how Scalia knew that a ruling was incorrect. Sometimes (Roe) it was because it assumed a meaning not thought of by the framers. Sometimes (the dissent in Citizens United) it was because it failed to assume a meaning not thought of by the framers. And sometimes (the dissent in Heller) it was because it gave too much weight to the thinking of the framers and not enough to English legal commentaries from before US independence.

The truth is that the US Constitution is ambiguous, often deliberately so - it had to be agreed between people with different views. There is no single Originalist reading, as Scalia and Stevens demonstrated in Heller.

Why does it make sense to rely on some Original meaning anyway? The Constitution holds because the people choose not to amend it, but it's their reading they rely on in making that choice, not something from the 18th century. If an amendment were passed replacing the entire constitution with the identical text, would that change its meaning? Or, more realistically, was most of the Bill of Rights incorporated into State constitutions by the Fourteenth Amendment according to its meaning in 1791 or 1868?

Since the contemporary understanding is the one which is accessible to us, it makes sense to interpret the Constitution that way. If Originalists don't like that Constitution, it's open to them, as Scalia suggests, to seek to amend it.

It's "living constitutionalists" vs. "DEAD constitutionalists".

The constitution keeps moaning about "I'm not dead, I don't want to go in the cart", but the Trump/GOP is winding up for a blow to the head that will settle the issue.

Followed by Trump's coronation as "Donald I, Emperor of America". And the ethnic cleansing.

Um, am I too tired to interpret sentences correctly, or is that a typo? Or are you from one of those tribes that doesn't count beyond three?

Yes a typo, or more accurately, my memory failed. It's 4, no?

If originalists put their money where their mouths are, they'd be recusing themselves from rulings regularly for their inability to discern with sufficient confidence what was in the minds of the framers. Instead, they pretend they can do what they say they're doing.

It's 4, no?

O'Connor, RBG, Sotomayor, and Kagan.

But I googled to make sure. ;-)

And found this portrait, which I had never seen. Quite interesting.

But I googled to make sure. ;-)

Me too!

Under originalist jurisprudence, can women be barred from voting, assuming for this purpose that the 19th Amendment was never enacted?

Maybe the Count and Kavanaugh can hang out and talk baseball.

https://www.yahoo.com/sports/supreme-court-nominee-brett-kavanaugh-incurred-credit-card-debt-buying-baseball-tickets-per-report-232222756.html

Sebastian: Given a fairly evenly divided polity split, wouldn't it make a lot of sense to not make lots of constitutional changes until one of them can gain an enduring and large majority instead of empowering lots of hacks to elevate their choices to super majority-level protections without ever getting an amendment through?

me: So in some alternative history where the Civil War didn't happen, equal rights for African-Americans should have waited until a large majority was in favor?

Still waiting.

I'm still trying to get past "empowering lots of hacks."

Yeah...I think I've been avoiding trying to figure out who that's supposed to mean. Hacks like RBG? Souter? Or hacks like the people who bring the cases? I don't think I really want to know, because what's the point once the argument gets to that level.

Abolish the Senate...................

Also, long ago I read Liberty and Sexuality, by David Garrow. Long, fascinating book about the work that was done to legalize birth control in this country. Two things struck me:

1. Activists over time went back and forth between the legislatures and the courts. Roadblock in one direction, try another. Etc.

2. The story covered 70 or 80 years of work on birth control before Eisenstadt v Baird, and then Roe followed like a domino. But the ground had been being prepared for a very long time.

And again for Sebastian: In some alternative history where the Civil War didn't happen, should equal rights for African-Americans have waited until a large majority was in favor? What about gay rights? Worth accepting only when our fellow citizens vote in favor of admitting that it's our world too...?

Yikes I meant ‘hacks’ like hacking the system by trying to get things that need amendments through without amending the Constitution. Not at all like “this person is a dishonest hack”. Hacking in the sense I meant was the semi laudable let’s get things done by going around the system kind of hack. Like Uber gets around taxi laws because the taxi medallion system is so awful but we probably shouldn’t run the world that way kind of hack...

Abolish the Senate...................

seconded.

JanieM I’m not sure what you’re saying. Are you positing a world where there is no 13th through 15th amendments? Isn’t it better that those are there rather than just some 5 judges saying something similar, waiting for one judge to retire and be replaced to start up a whole new crisis about it every 7 years or so?

I'm still trying to get past "empowering lots of hacks."

Nothing in the Constitution explicitly bars the president appointing and the Senate approving "hacks" to the Supreme Court. How this slipped past our Wise Founders is simply beyond me.

JanieM and Ugh: good questions all....

Just goes to show one should refresh before commenting!

JanieM I’m not sure what you’re saying. Are you positing a world where there is no 13th through 15th amendments?

More or less, yes, since we had to have a Civil War before they were passed.

Isn’t it better that those are there rather than just some 5 judges saying something similar...

Once again, Roe was 7 judges. So what does 5 judges have to do with it?

P.S. thanks for the explanation about "hacks."

Isn’t it better that those are there rather than just some 5 judges saying something similar(?)

I can't speak for JanieM, but if given a choice between 5 hacks and that bloody (something, something) preceding their passage, I would quite reasonably be inclined to say, "No".

Side comment from googling dates about birth control: For my first two years of college I lived in McCormick Hall, named for, and financed by, Katharine Dexter McCormick. She died the year before I got there, so I never met her. But her life was compounded of tragedy and accomplishment, including a degree from MIT in 1904, at a time when you could count the female students on the fingers of one hand, and a great deal of work (and $) on behalf of women's rights and birth control.

You can speak for me on this one, bobbyp. ;-)

Yikes I meant ‘hacks’ like hacking the system by trying to get things that need amendments through without amending the Constitution.

There is nothing in the Constitution that bars this. True story.

I mean, this 5 judges thing is just silly. Should there be a rule (amendment?) that says that Supreme Court decisions have to have a supermajority on the court?

There is no perfect system. Humans are going to figure out a way to hack any system humans can invent. What do you think Eisenhower would have said about Mitch McConnell's antics with Garland? (Although "antics" is far to value-free a word.)

We (most generically) have a system (ditto). It works okay for a while, then someone starts undermining it (gerrymandering, refusal to consider a president's SC nomination, changes in the Senate rules....).

Eventually the hacking gets to an intolerable level and...something happens. We'll see, I guess. As russell says, good luck to all.

trying to get things that need amendments through without amending the Constitution

Who gets to say what "needs" an amendment?

russell (10:36 PM): live by the letter, or live by the spirit.

There are, I have discovered, people who are just enormously uncomfortable with grey. They want, they need, to have the rules all spelled out in detail, with every possible contingency covered. Anything involving human judgement just doesn't work for them.

That's where the "textualists" are coming from. If something isn't explicitly spelled out in the text, they just can't accept that it might be an entirely reasonable interpretation of the spirit of the law.

Other people, those who don't need that totally explicit detail, can have a lot of trouble understanding what those guys problem is. It isn't really a desire to be obnoxious -- however easy it is to view it that way. It's just that the way they are wired.

But wj, you neglect the fact that some people are just more comfortable with 18th century values and attitudes than other people....

Sebastion (12:01): don't think your reading really gets it (certainly not in the spirit of reading that russell is talking about). You can take property FOR PUBLIC USE if you pay for it. Making a park is public use. Making a freeway is public use. There are a very large number of public uses. But not everything is a public use. Giving it to some other private owner is almost the definition of "not public use".

You're right, I missed the "public use" point. Sorry.

But I think that "public use" could, in some circumstances, involve selling (not giving) something to a private owner. For example, your town needs more apartments built. Somebody owns land that could be used for that; someone else would like to buy it and build the needed apartments. Unfortunately, the current owner has a problem with the would-be builder as a person. Nothing to do with the proposed use, he just down't like the guy and refuses to deal with him.

Or, for another example, the current owner just doesn't like the idea of apartments in the town because he loves the place as all single family houses.

I would say either of those would be a reasonable case when "public use" could include the government as intermediary. And I think it is superior to writing a law which would try to require an owner to build apartments on his property, when he says he would rather continue to leave it as vacant warehouses.

Hartmut: I'd say, ask an orthodox rabbi. E.g., a light switch is the modern equivalent of fire, so do not flip it on the Sabbath.

And yet (at least among the very Orthodox Jews that I know personally) it is OK to set a timer which will automatically start the coffee maker Saturday morning. If turning it on manually would be wrong, how is turning it on automatically somehow OK? The answer appears, from the outside, to depend on how addicted the rabbi is to his morning coffee. Which is pretty much what is being said of "originalists".

You can just as easily evade the intent of the law by being hyper-textual as you can beat people over the head with it by being hyper-textual. Like most things, it's a double-edged sword.

But wj, you neglect the fact that some people are just more comfortable with 18th century values and attitudes than other people....

Quite true. 18th century values and attitudes having the enormous benefit of having nobody from that era around to dispute their claims of what those really were. Or, worse, show that there weren't a single, universal, set of said values and attitudes. Much more convenient when you want to claim that your views are their views.

So what are you trying to say here....that women's and gay rights should have waited for an Amendment?

No, and Orrin Hatch and Teddy Kennedy didn't wait for it. Nor did Bobby Kennedy. Nor did Abraham Lincoln. Nor did George HW Bush and Tom Harkin. The problem with using SCOTUS on issues is that it ends debate. Acting legislatively or with the amendment process continues debate.

And if two of the branches disagree about what the last word should be, then what? A shooting war?

I don't see how it can work without some entity having the last word. Speaking as a gay person, I would prefer it not be the majority of the electorate.

Two branches disagree all the time and we normally get around the disagreement because the Constitution provides for the disagreement with the balance of power. Presidents veto, issue executive orders that are or at least arguably are unconstitutional, SCOTUS overturns, Congress passes unconstitutional laws, which then get vetoed or overturned. Presidents get impeached. The real question as I see it is what do we do when SCOTUS gets it wrong? Jefferson thought the states could just not enforce it. I'm more Hamiltonian. I think we follow SCOTUS the vast majority of the time. If something of sufficient import arises, the President refuses to enforce and faces veto or Congress legislates around the issue or we amend.

The problem with "the last word" as an absolute absolute is it does away with the balance of power that was so carefully crafted into the Constitution. As a default, I agree with judicial review. As a pure absolute, I like the balance of power.

Take frex the Dred Scott decision. That was overturned by the Civil Rights Act of 1866 and the 14th Amendment. Oh, and a civil war. I see your point.

But do you see mine? Debate tends to stop when SCOTUS rules. So we now go to SCOTUS for what should be active political questions to "amend" the Constitution. And I don't think that is healthy.

I have missed your particular brand of wrongness :)

And back at you, TP, lol.

If something of sufficient import arises, the President refuses to enforce and faces veto

You appear to be saying that the President can simply decide unilaterally which decisions he wants to ignore and which laws he wants to enforce. At that point, why bother with all the overhead of the other two branches? Just make it a dictatorship and have done.

And what veto are you talking about that could hit a President who refuses to enforce a law? Have I missed something in the Constitution?

Debate tends to stop when SCOTUS rules.

Yeah. I'm sure we have all noticed how debate over abortion just stopped after Roe
/sarcasm

Debate tends to stop when SCOTUS rules.

Roe certainly didn't end any debate about abortion.

For example, your town needs more apartments built.

The "Chevron deference" seems to be loosing some ground in the Supreme and lower courts.

Neil Gorsuch opposes the Kelo decision – a terrible Supreme Court property rights ruling that Donald Trump loves

Chevron deference makes the world go 'round.

Re cleek at 12:25:
Two great minds with but a single thought.... ;-)

Is it consistent with the principle that is expressed in the text, or not.

Ask me 100 more times, and that will be my answer.

This is close to an originalist position, but not quite (and it depends on the flavor of originalist). Unlike the Old Testament, the Constitution wasn't written with any allegory or metaphors in it. I'm with Scalia. You don't get beyond unless the text is unclear or ambiguous on the issue you are addressing. Then you could expand the question to how the provision was understood at the time of passing, which IMHO could include "principle" of the thing. Some originalists go straight to intent but Scalia goes pure text first. Because while words can be ambiguous and the meaning of certain words can change over time, sometimes it's dang plain and right there in front of your face.

What Seb said at 11:29. Kelo is a good example.
"For public use." Not "for the general public economic benefit." Not "for the benefit of the Pfizer Corporation." Just start with the dang text. If you were to go to "principle" first you might very well end up where the majority ended up on that issue. Or you might not, I guess, if you find that the principle is "public use" not "public benefit." But why go to principle when the text is clear? If there is any question of what "use" meant, I'd look at what the situation was on the ground at the time. That did not include taking private property and giving it to developers.

I think it is ironic that the textualists/originalists there by simply following the Constitution's text stood up, IMHO, against corporate interests and in favor of the poor. Shoot, civil libertarians and the NAACP were in agreement on this one. And the resulting "development" was, shall we say, the height of irony.

You appear to be saying that the President can simply decide unilaterally which decisions he wants to ignore and which laws he wants to enforce.

I think bc may have meant impeachment rather than veto, since veto is something the president does rather than something the president faces. If I'm right, then, no, the president doesn't unilaterally get to decide everything like a dictator, since congress can remove the president from office.

FWIW, I'm no lawyer and can't claim to be fully versed on all the details of Kelo, but from what I do know about it, I would put myself on the side of the minority in the decision.

(I lived in New London for about 7 months. Does that give me any special insight? ;^))

hsh, it did occur to me that he might mean impeachment. But . . . "Just start with the dang text." ;-)

Sorry for the serial comments, but I just want to add that I (and probably others not enamored with originalism) am not saying there is never a clear reading of the constitution. Sometimes there is, and often there isn't.

While we're talking about original intent, etc., a question occurs to me. If a corporation is a person for the purpose of the 1st Amendment, why wouldn't it equally be a person for other purposes. Specifically, why couldn't it insist on registering to vote?

Picture the fun! Corporations (human beings, too, I suppose) creating multiple subsidiaries, each separately incorporated. Which then register and vote. Why bother with bribing members of the legislature via campaign donations, when you can just point out that your corporation's multiple votes will swing the election all by themselves?

The real question as I see it is what do we do when SCOTUS gets it wrong?

and who is to have the final say that they 'got it wrong'?

You appear to be saying that the President can simply decide unilaterally which decisions he wants to ignore and which laws he wants to enforce.

Writ of Mandamus, followed by Contempt, but perhaps an actual lawyer could weigh in on the issue.

and who is to have the final say that they 'got it wrong'?

Over time society does. The Court tends to be a trend follower. Sometimes a bit ahead, sometimes behind.

Contrary to what Sebastian was telling us upthread...
https://www.politico.com/story/2018/07/12/roe-v-wade-gallup-poll-714978

Will the Court follow that trend ?

Theory is all very well until it meets reality.

While we're talking about original intent, etc., a question occurs to me. If a corporation is a person for the purpose of the 1st Amendment,

corporations aren't even mentioned in the Constitution. and corporate personhood was created in the 1880s. it's not even close to being an 'original' thing.

it's not even close to being an 'original' thing.

I know. But it was "originalists" who wrote Citizens United. Not "living Constitution" believers. Just sayin'

Keep in mind that the Citizens United decision also applied to labor unions.

"Freedom of the press"
"The right to keep and bear arms"
"Cruel and unusual punishments"

Printed matter only, or do pixels count?
Some arms, any and all arms?
Both cruel and unusual, or either?

I'm sure Scalia knew the "right" answers to these questions. And the Federalist Society is no doubt sure that a lickspittle like Kavanaugh does too. Merrick Garland doesn't, of course.

--TP

There are, I have discovered, people who ... want ... to have the rules all spelled out in detail

That's me (I've elided the bits I think don't apply). I think if you have a rulebook, it should say what the rules are. I think it's really bad that McConnell and Trump have in effect the power to change the Constitution. So there should be clearer rules, and less room for judicial interpretation of them.

Scalia goes pure text first

If he did, I'd have some respect for his approach. But Citizens United.

However, I see no good reason to go with a guess of what the text meant in the 18th century. Unless of course you approve of the social outlook of a group of racists (many of the slaveowners) and sexists.

So there should be clearer rules, and less room for judicial interpretation of them.

Accepting, for the sake of discussion only, that there should be, that isn't the Constitution that we have. And there doesn't appear to be any realistic prospect of a flood of amendments which would be required to produce such a document. So how do we deal with the reality before us?

Tony P, I assumed (on the basis of absolutely no research or reading) that Scalia's reasoning on the question of "cruel and unusual punishment" was that when used to extract information, torture was not exactly "punishment" because at the stage it was being used it was being used as an inducement, not as a punishment for crime or wrongdoing. As you might expect, I regarded this with contempt. Are you telling me he objected on the basis it had to be cruel AND unusual?

Nigel, that isn't contrary to what I said up thread at all. In fact I've repeatedly linked to the primary document (the actual Gallup poll) referred to in the link you provide. Here it is again (note that they have updated with 2018 poll results cited in the link you cite) Gallup Poll Primary Document

*Exactly as I said above and in the last thread*, but now for the 2018 numbers, 60% of people think abortion should be generally legal in the first trimester (down 1% from last poll), 65% think it should be generally ILLEGAL in the second trimester (up 1% from the last poll) and 81% think it should be generally illegal in the third trimester (up 1% from the last poll). Roe definitely doesn't allow abortion to be generally illegal in the second trimester, so a much more natural interpretation would be that people think of a general question like "do you support Roe" as supporting the first trimester right they approve of, and not the second trimester where they strongly disapprove of it.

Which is exactly what I said.

"While we're talking about original intent, etc., a question occurs to me. If a corporation is a person for the purpose of the 1st Amendment, why wouldn't it equally be a person for other purposes. Specifically, why couldn't it insist on registering to vote? "

You're misinterpreting shorthand discussion for doctrine. The doctrine is that for most individual rights that could be exercised by forming a group and pooling resources we don't take away those rights just because they pooled resources (in an association, corporation, union, newspaper company, etc.). So for analytical purposes, in those case, it makes just as much sense to treat an association asserting those pooled rights as it does for an individual in a similar position. That is what is meant by the shorthand "corporate personhood". This may break down on the extreme edges, but it is pretty good shorthand.


It doesn't really make sense to talk about voting rights in that understanding, because voters can't pool rights (voter contracts are unenforceable and you can't see how they voted anyway because of voter privacy laws).

So for analytical purposes, in those case, it makes just as much sense to treat an association asserting those pooled rights as it does for an individual in a similar position.

And in much the same way, "corporate person-hood" doesn't make sense for uniquely individual things, like religion. Unfortunately the drafters of the RFRA weren't as careful as they should have been in this respect.

It also bears noting that there are different types of corporate forms. There is the one everyone thinks of where you buy a share of a corporation, get to vote at the meeting of the Board of Directors (for common stock, at least), and are entitled to dividends pari passu with other shareholders of the same class. You can hold your stock, voting, and dividend rights in perpetuity for the share purchase price on the day you bought it.

But there are also other corporations, particularly not-for-profits such as the one I work for, where to participate in corporate governance (via voting for the Board) you have to pay a fee every year. Similarly to obtain the benefits of membership in the organization.

This is a crucial distinction between, say, Microsoft and Union Local #275. It makes much more sense to allow Union Local, organized as a not-for-profit corporation operated for the benefit of its members requiring an annual membership fee, to have 1st Amendment rights and participate in politics than it does Microsoft.

Sadly, this distinction has been lost, ISTM.

...65% think it should be generally ILLEGAL in the second trimester

...and not the second trimester where they strongly disapprove of it.

Emphasis mine, on the adverbs.

Over time society does. The Court tends to be a trend follower. Sometimes a bit ahead, sometimes behind.

Just like the Congress! Funny how that works.

bc,

I'm with Scalia. You don't get beyond unless the text is unclear or ambiguous on the issue you are addressing...

This is incomplete. To be fair, impartial, and in alignment with the actually observed historical record of this interpretive approach, you would need this following clarification:

....or if it does not support your ideological predispositions to begin with.

See Bush v. Gore.

There is also the issue of the 'ladder of abstraction' raised by Scott Lemieux in the link I cited above, and which none of the defenders here of so-called originalism have bothered to address.

"Keep in mind that the Citizens United decision also applied to labor unions."

Unfortunately, the majority of the justices failed to keep that in mind when writing the Janus decision.

“Emphasis mine, on the adverbs.”

If you look deeper into the poll it looks like generally means cases where the life of the mother is threatened (various serious sounding terms depending on the polls)

But if you want to say something like majority of 2nd trimester abortions that wouldn’t be misleading. (Except full disclosure, other polls make it sound like people really would prefer the cut off to be something in the 18-20 week zone instead of 16 weeks which changes the numbers noticeably. But that would still be unconstitutional with respect to Roe).

GftNC: Are you telling me he objected on the basis it had to be cruel AND unusual?

No, GftNC. I was trying to convey to Seb, bc, and their fellow originalists (or textualists or whatever moniker they prefer) that even a simple conjunction needs interpretation.

And I was implying that high-fallutin' defenses of the proposition that Scalia was anything but a self-satisfied ideologue are debatable, not self-evident.

I'm still waiting, BTW, for either Seb or bc to straightforwardly acknowledge that a lickspittle on the order of Brett Kavanaugh doesn't belong on the SCOTUS -- no matter which "judicial philosophy" a respectable citizen espouses.

--TP

It depends on what you mean by doesn’t belong. The McConnel maneuver was indefensible. So in that sense he doesn’t belong. Is Kavanaugh any more politically motivated in his rulings than Sotomayor? I don’t think so.

My whole point is that letting the Supreme Court gain as much power as it has is bad for everything.

Aha - Thank you Tony P. I am therefore free to continue despising him (which I would have in any case) without the trouble of adjusting my inadequately founded suppositions about his rationale!

Seb,

If you can remember Sotomayor kissing Obama's ass as slavishly as Kavanaugh kissed He, Trump's bloated pasty-white posterior, do remind me.

As for your whole point: what do you propose, in our litigious society with its adversarial legal system? I mean, can you suggest some way for the SCOTUS to functionally declare a tie when litigants (one of whom says X, and the other says not-X) won't settle for the outcomes (often going back and forth) in the lower courts?

Or are you suggesting that our litigious society with its adversarial legal system should find ways to ignore the SCOTUS?

Or what?

--TP

But why go to principle when the text is clear?

...

nor shall private property be taken for public use, without just compensation.

The text is as plain as day. Private property may be taken for private use, and in fact may even be done so without just compensation.

This is close to an originalist position, but not quite

Yes, and the 'not quite' part is that I don't try to imagine what an 18th C person would think the proper application of the principle would be.

I'm perfectly happy to consider what a 21st C person thinks the proper application of the principle should be.

Which is why no originalist - of any stripe - would consider me an originalist.

Unlike the Old Testament, the Constitution wasn't written with any allegory or metaphors in it.

The particular passage I referred to is from Deuteronomy 25. It's part of the Deuteronomic code. It was precisely the religious and civic code for the nation of Israel.

No metaphor, just a difference is historical and social context. I don't have an ox.

I'm with Scalia. You don't get beyond unless the text is unclear or ambiguous on the issue you are addressing.

If the text is not unclear or ambiguous on the issue you are addressing, it's probably not on the SCOTUS docket.

The easy ones don't make it to the Supremes.

Political motivations in favor of the rich and powerful are just as legitimate as political motivations in favor of the poor and powerless.

Discuss!

If you can remember Sotomayor kissing Obama's ass as slavishly as Kavanaugh kissed He, Trump's bloated pasty-white posterior, do remind me.

Actually, I can't remember any Supreme Court nominee doing anything remotely like Kavanaugh did. At least in the half century I have been paying attention. Most have had far too much self-respect (warranted or not) to sink to that level.

Is Kavanaugh any more politically motivated in his rulings than Sotomayor? I don’t think so.

are you sure?

http://www.newsweek.com/karl-rove-brett-kavanaugh-was-central-all-policy-decisions-bush-white-house-1015463

https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2018/07/10/daily-202-kavanaugh-s-paper-trail-makes-his-confirmation-harder-but-ensures-he-ll-be-reliably-conservative/5b4420ba1b326b3348adddfb/?noredirect=on&utm_term=.a6182cf7cdd5

Is Kavanaugh any more politically motivated in his rulings than Sotomayor? I don’t think so.

Consider his view on legal proceedings against a President when the President (Clinton) was a Democrat vs his view on the subject when the President (Bush and now Trump) was a Republican. Do you have a similar discrepancy from Sotomayor?

It's one thing to have a view which is, arguably, motivated by your political views. It's another to change your view based on the party of the person involved.

See Bush v. Gore.

There is also the issue of the 'ladder of abstraction' raised by Scott Lemieux

Re Bush v. Gore, that case has, IMHO, many problems that have nothing to do with SCOTUS, not the least of which is Gore not asking for a statewide recount. And it was 7-2 on equal protection, if I recall.

As for your other point, I acknowledge it, bobbyp, also made by others here. I just don't think hypocritical "originalism" justices is an argument against trying to at least apply the basic text in front of you. That approach doesn't work every time, and I acknowledge that it can lead in some situations to absurd results. But it should still, IMHO, be the starting point.

And no, I don't think it is always the starting point of some justices. I'm not saying the "living constitutionalists" do it in bad faith, mind you. But it makes me think of what I see as a problem with going with the "most qualified lawyer." In my experience, a large percentage of the top 10% of any law school class are just awesome people. But there are those that, let us say, are kept away from client interaction as much as possible. And some of those that are sociable should be kept away from power tools.

Yet we gravitate towards those with a specific pedigree (Ivy League, top 10%, learned at the feet of previous SCOTUS, etc.) that might need some rethink.

I believe in a Constitution that should be accessible to any serious citizen, lawyer or not. I worry about the "ivory tower" theories that seem to grow like weeds out of the text. Substantive due process, frex. Something only an academic could come up with. I'd welcome a non-lawyer to SCOTUS in heartbeat. But they would have to demonstrate serious thought and consideration of the Constitution.

So back to your point, yes, I acknowledge some decisions by "originalists" that seem results oriented. I'd have to go back and read the predecessor to Gideon v. Wainwright to see if his point re Thomas is valid.

But I don't think the "ladder of abstraction" is the end all on this topic either. I read it, I'm glad I did, and I'm thinking about it.

The Constitution has provisions that are precise and some that are not. I am perhaps a "pragmatic textualist," requiring strict adherence to clear, unambiguous text. I am open to some extrapolation on text that is not quite so clear, such as "due process of law." In fact, the text in some areas was purposefully broad giving some latitude to SCOTUS. I'm mindful that SCOTUS is more than one person. If it was so clear all the time, we'd only need one, right? But to say "text has no meaning" defeats, IMHO, the entire exercise of drafting the Constitution in the first place.

I'm still waiting, BTW, for either Seb or bc to straightforwardly acknowledge that a lickspittle on the order of Brett Kavanaugh doesn't belong on the SCOTUS

I already said I really didn't like what he said about Trump's selection process. Not very justice-like. But I don't know that much about him, honestly. But apparently everyone in the news does. I do know John McCain really likes him, which means I probably should not!

Tony P:

If Al Franken puts you off, can I assume that you find He, Trump deplorable? Or are you, like Marty, willing to overlook his 10xFranken^2 moral shortcomings in light of His "(Republican) policies"?

(1) Trump is the DNC's fault for running HRC. And now maybe HRC redux (or third time's the "charm")?

(2) I have never liked Trump. As in he lost me in the 80's. I watched part of a season of Apprentice (don't ask me why) and when Kim Kardashian was called "classy" I almost threw up. He is no Republican and frankly (pun intended) I would have considered him more a product of the left than the right, so some of his policies surprise me. He is definitely a lightning rod on policies and the unfortunate thing is people (me included) have a hard time keeping the policy separate from the person. For some that is easier. So I can like the result on some issues without liking the person/style. And it's really hard when this particular "style" is POTUS. Give me some Reagan any day on style.

(3) I don't think I know enough to state Trump is 10x Franken, groping and stolen election and all.

So what am I left with? The "rocket boy" comments remind me that I used to live within striking distance of North Korea (and on the short list of USSR first strike areas) and I had that familiar cognitive dissonance go through my head that I had during the cold war as a kid (life appears to be good but a mushroom cloud could ruin your whole day). Yet I have long thought the "diplomacy" of the elite State people could use a shake up. I just didn't think it would be THIS. But who else would show up at NATO and say what he said?

So, no, I don't have a MAGA hat. (But did you seem the meme with GW wearing the "Make America" hat? Lol.

Except full disclosure, other polls make it sound like people really would prefer the cut off to be something in the 18-20 week zone instead of 16 weeks which changes the numbers noticeably. But that would still be unconstitutional with respect to Roe

So a significant minority, more than a third, of people want abortion to be unrestricted in the second trimester. Of those not in that minority, some number, perhaps most, want it to be legal if the woman is in some kind of jeopardy. Some of those people would like restrictions placed somewhere within the second trimester rather than at the start.

Based on all of this, you’re making the case that Roe is out of the mainstream, because it doesn’t get to exactly what a not-overwhelming majorty of people want specifically within the second trimester, even though overwhelming majorities agree with the ruling in the first and third trimesters.

Well ... okay.

"All men are created equal" was not intended as a metaphor by the 39 signers of the Constitution. We don't know what the other 16 attendees believe dwho refused to sign the thing. And who knows what the other 20 or so invitees thought who called in sick or were waylaid by impossible portages.

Happily, the Supreme Court eventually agreed, way too late, with the unpropertied, Native Americans, African Americans, and women, among others, that "All men are created equal" was a metaphor that also referred to them, despite the fact that the 39 literally were not referring to them.

They were referring to the fact they were propertied white men on an equal footing. Extending the man franchise to the Others was greeted each go-round as Fake News.

In many ways, it WAS all about the plumbing.

And how is the statement "that they are endowed by their Creator with certain inalienable rights" not a metaphor of sorts.

Perhaps a guess. At best an assertion.

Describe what "Creator" means. What is it? Point to it.

You can't do it without referencing metaphors and similes.

Speaking of fake news, Facebook can go fuck itself.

https://www.motherjones.com/kevin-drum/2018/07/facebook-decides-that-its-big-problem-is-fake-liberal-news/

I hesitate to say this because of inevitable inflation, but Trump appears to have outdone himself today in an interview with Rupert Murdoch's Sun. This is not the interview, but gives some snippets:

https://www.thesun.co.uk/news/6766777/donald-trump-sadiq-khan-terrorism-terror/

Apart from claiming it's the mayor's fault there are so many immigrants in London (I know it's absurd to still be astonished at his ignorance, but it still absolutely boggles the mind) and therefore so much terrorism, he apparently also says he told Theresa May how to negotiate Brexit, she didn't listen, did the exact opposite, and that if her current Brexit plan goes ahead it almost certainly means no trade deal with the US. It's unclear if she knew any of this til a few minutes ago, since she has just been hosting him at a formal dinner at Blenheim Palace.

Although it was undiplomatic of him to say so at NATO (surprise surprise), he was right that there is turmoil here over Brexit. But that turmoil was as nothing compared to what will no doubt now be unleashed....

https://www.thesun.co.uk/news/6766531/trump-may-brexit-us-deal-off/

Britain and the European country governments should issue orders to turn back all international flights originating in America, and if they do land, they should shoot any American who attempts to disembark.

Arrest all American tourists and business travelers and separate their children from them.

If I attempt to set foot in Britain or Europe, I should be shot in the head by their security forces because I am a subhuman, lying, double-crossing piece of dogshit American who has done nothing to fucking destroy mp and the republican party, the most dangerous organization on the face of the Earth.

Never converse, negotiate, and certainly never sign any treaty with pigfucking two-faced vermin Americans or their gummint.

We steal, we lie, we fuck anyone who offers a hand.

When in the presence of an American, keep the safety off and the gun cocked. Shoot us if we make any sudden move.

Poison our sushi. We're fucking scum. We're Russians. Why would anyone trust any of us?

We need to be hurt badly by EVERYONE.

Republican politicians are cutting out the middle men and doing the killing directly:

http://juanitajean.com/fun-with-guns-political-consultant-weirdness-edition/

Republicans and conservatives are sadistic murderous shitheels.

https://www.motherjones.com/kevin-drum/2018/07/republicans-finally-kill-off-valuable-medical-database-their-donors-hate/

This country has no idea of the ferocious killing fury, the tidal wave of blood vengeance, that is coming down on the heads of 51% of the country and your subhuman children and your stinking mothers.

May's plan is for the UK to trade manufactured goods freely with the EU, and make its own tariff arrangements with the rest of the world. That means it will adhere to EU regulatory standards in manufactured goods.

If that plan is unacceptable to Trump, it must be because there's something in EU standards he dislikes and wants the UK to change as part of a trade deal. Perhaps the last person he spoke to told him how important it is that the UK should import chlorine-washed chickens from the USA.

Or he's just bloviating.

Sorry, just to go back a bit. I'm trying to understand something here. There is this idea that I think Sebastian is putting forward (and maybe bc as well?) that abortion (and it seems to be open to be extended to other issues) should be a question of popular opinion and then aims to show how Roe is wrong in regards to current public opinion. (if I'm misunderstanding something, please let me know)

Janie points out that there are several historical cusps that required the Supreme Court to move ahead of public opinion. In addition to that, there is also what I think wj suggests, which is that public opinion is not something fixed in stone and the recent changes with regard to gay marriage should make any argument like this suspect. So that's two things.

But in addition to those two things, I've got another one. If someone is arguing for a 'pro-life' position, how could it be dependent on public opinion? I would think that anyone arguing such a position must think that there are bright lines, so arguing about popular opinion seems like less a way to state beliefs and more of a way to try to win the debate without invoking morality. At it's base, it seems like a way to hide the fact (either to other people in the discussion or obscuring it for oneself) that what is being made is a moral argument, much like the one against gay marriage (an opinion that changed remarkably quickly when gays began to come out of the closet and people were confronted by the fact that people they knew were being punished). So does that give anyone pushing a decision based on public opinion any pause?

I feel like an argument like this shouldn't be dependent on polls because if that's the case, the argument will rise or fall based on how in conforms with other people's moral judgements, which change with time and circumstances. Also, these moral judgements should logically do things like punish the woman for any miscarriage or fetal endangerment, or require a committment to universal access to birth control and sex education. Yet that is never discussed, the focus is preventing woman from having access to abortions.

I don't often go into this debate because the situation in Japan is so different, but I can't help but think (and this must sound strange, but bear with me a bit) that the problem is one of privilege. As a cis-gender male, I really don't think I have the standing to make a call on this and that's one reason I don't get into these discussions. If I were asked for advice from someone, I would offer it, but it would totally depend on their individual circumstances. So if I were confronted by a a person wanting to know my opinion, I'd politely say I really can't say. And while everyone thinks their opinions are what everyone else thinks, if there were a large number of people like me, I think that would further undermine the idea of an opinion poll controlling a decision. Any position I would take would not be universal, but only for a particular case.

How does all this relate to privilege? Well, when I feel like I can speak for someone else, or tell them what's best, I'm invoking privilege. I know that some folks who drop in here have a big problem with the concept, but I think the reason they get upset about it is they feel it makes a claim that they didn't earn what they have, that it was somehow given to them. While I can see how they might think that, it is really a crabbed view of it. No one would say that the players of Munich Phil were just given their jobs because they were men, but when you read about Abbie Conant, if you know how competitive orchestral positions are, you can realize that someone can simultaneously work very hard to get to where he is, but still benefit from privilege.

Because I think there is a question of privilege, this recourse to opinion polls has me scratching my head. If someone came up to me and asked what I thought about her having an abortion, not as a hypothetical but as an actual situation, I certainly wouldn't cite polls to her, I'd speak about what I thought was right or wrong. And I can't imagine speaking with any kind of authority to people who have situations that I don't have any knowledge of about what they should do in a situation like that. Is there a reason why I should be able to do that?

As a cis-gender male, I really don't think I have the standing to make a call on this and that's one reason I don't get into these discussions....

While I agree with that, it is precisely why I'm strongly of the opinion that it should be a woman's right to choose.

Trump is the DNC's fault for running HRC.

calloo, callay, it's conspiracy day.

hey, you do know that there was a months-long series of elections, win which HRC received a decisive majority of votes, right?

Trump is the DNC's fault for running HRC

I'm sorry but this is garbage.

The (R)'s nominated the guy. 62+ million people voted for him.

That is why he is the POTUS.

I'll also say that the whole "his personality sucks but the policies are ok" thing elides the fact that he's a freaking crook. And, that the simplest explanation by the Ockhamian measure for his behavior on foreign policy is that he's being run as an asset by Vladimir Putin.

(R)'s nominated the guy, (R)'s voted him into office, and most of those folks were the proverbial dentists with boats.

He is surely an embarassment and a danger to the nation, but if you're a (R), that's on you, not HRC.

It's on you.

and, while we chat about the niceties of interpreting 18th C documents, America is earning it's very own special place in hell.

Perhaps it's the twisted weirdness that lives inside my skull, but I see "privilege" in terms of D&D character generation:

You get a big 'plus' from being white.
You get a big 'minus' for being black.
You get a smaller 'minus' for being latino.
You get a 'plus' for being male.
You get a 'plus' for being old.
You get a 'plus' for being hetero.
You get a 'plus' for having the right accent.

Add 'em up, then add your 3D6 roll and look up the result in the table to see what you got. Not much of it is under your control, but perhaps you'll manage to pick up the "+5 Sword Of Biting Sarcasm" and do okay.

It's Gygax and Arneson's universe, we're just living in it.

I know nothing of D&D Snarki, but speaking for myself the weirdness that lives inside your skull is one of the incidental pleasures of this rich tapestry....

b.b.b.b.b.but there are poor white people! i've seen them!

so much for that "privilege", huh libs?!

[actual argument repeated here every time the word 'privilege' shows up]

It's the DNC's and Clinton's fault as well that this cast of corrupt characters destroys America from within the rooms we rent them on Capitol Hill.

There will no end of something wicked this way comes and wicked is coming to them personally:

https://www.esquire.com/news-politics/politics/a22134841/peter-strzok-testimony-what-happened/

The freak-show profiles of the GOP reps on the panel is fantastic.

I'll also say that the whole "his personality sucks but the policies are ok" thing elides the fact that he's a freaking crook.

Not what I said (or at least not what I meant to say) but I do not miss your point on the first part of that sentence. I mean honestly, how could I not? Trump is not subtle. I'm not saying for me I can live with him because of his policies. I simply said I will not deny that some policies I like (and some I do not).

On the second, well, HRC. I'll wait until the investigations are over. Too much to go into there.

Yes, I was being somewhat snarky in blaming HRC. Sure, the R's nominated him and the R's and a lot of blue-collar D's elected him. Yes, in that sense they are responsible. But I'm not looking at the mechanics of what happened. I'm looking at what led to his success in the first place. Why people were looking at something different that the "swamp." Had a decent candidate gotten the nomination, things might have been different. Each side nominates with more than a little thought and consideration to what the other side will or has done.

hey, you do know that there was a months-long series of elections, win which HRC received a decisive majority of votes, right?

Analysis such as "she won more votes" is why she LOST. Keep that up, DNC.

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