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July 19, 2004

Comments

Any post on judicial interpretation which doesn't address the role of the court in protecting the minority against the tyranny of the majority is ducking the hard issue.

To heterosexuals, for example, laws prohibiting consensual sodomy may be only "uncommonly silly". Homosexuals likely have a very different view.

Was Loving correctly decided? Is the 13th Amendment implicated in anti-miscegenation laws? Who decides?

What aspect of the Mass. Supreme Court's decision regarding homosexual marriage was wrong? The court gave the state every opportunity to establish even a rational basis for excluding homosexual marriage from state licensure and the state failed to meet its burden.

Yes, the judiciary exists to interpret laws. But since Marbury, the judiciary has reserved to itself the right to determine when laws go too far and violate the powers of the legislature. Was Marbury wrongly decided? Is the "correct" form of government in this country one where the judiciary is subservient to the legislature?

And it's not like judges are self-appointed. Whether elected or appointed, they come out of the political process. to the extent that the US Supreme Court reflects a "realist" school of interpretation, this is due to the office of the president, with advice and consent of the senate, selecting these individuals to serve. Want a different theory of constitutional law? Elect a different president, and different senators.

Who was it who said we get the government we deserve? It seems to me that the US Sups pretty accurately reflect the various battles in the legal community between federal and anti-federal, and between realist and normative.

but your mileage may differ.

Francis

Good post, although I would suggest that this analysis is a little off track.

Classification schemes -- they usually lead to endless debate over which category of the categories a particular action belongs to. Not too useful a debate, although this one provides good background for thinking about the slippery slope of "interpretation" vs. "activism."

One caveat to your thoughts. The law has an ancient "legislative" tradition in the common law. Judges have had the power to be legislatures for hundreds of years within the orbit of law defined as "common law." Judges understood that they were not supposed to simply woodenly apply the common law, but be sensitive to needs to fine tune it or change it drastically if needed. One example that no one complains about -- the judicial development of "products liability" law. It absolutely was 100% "judicial activism" but is never castigated for that aspect of its development.

So "activism" is not simply a matter of judges performing legislative-like actions -- our legal traditions have allowed this to some extent for hundreds of years. Its more a matter of intruding on areas traditionally thought of as the province of legislatures.

The Constitution itself created paradox -- do judges interpret it like legislation or like the ancient traditions of the common law? The "original intent" of the framers never addressed this question -- probably because the idea of constitutional government was something they largely invented and it did not have a prior judicial heritage to draw on.

One of the first great acts of "judicial activism?" Marbury v. Madison, 1801, announcing that the US Sp Ct had the power to declare laws unconstitutional. After all, where was that in the Constitution, or in the original intent of the framers? This development basically adopted a common law approach for interpreting the Constitution. The long tradition of the Court is to avoid using this power because of its potential for abuse and lack of clear legitimacy (except from historical tradition).

In other words, what has distinguished "activism" from "proper judicial action" has for the last two centuries largely turned on the political sensitivities of the judges themselves as to what might constitute "going too far." Doctrines like "original intent" that purport to eliminate this type of thinking do not do so, and in my humble opinion cannot do so.

And both ideological spectrums of the court have been "activists." Judges tend to be highly political creatures who lack the power (most of the time) to act on those impulses. When they think they can get away with it, judges from both sides of the political spectrum have taken liberties to further their agendas using judicial action.

By the way, I agree with your basic assessment on gay marriage -- the legislature should enact the statutes providing for it and it should not come from judicial action. But I do not see the issue of "judicial activism" as dangerous as you suggest, nor do I think the law can get rid of it -- to some extent its a good and necessary thing.

Courts are the weakest branch. If a majority consensus is against something created by judicial activism, it will not long survive the political process. If America had a true apartheid mentality in the 1950s, the political process would have destroyed the legal benefits of the judicial activism underlying the civil rights decisions of that era.

Is the "correct" form of government in this country one where the judiciary is subservient to the legislature?

If the GOP has its way, it will be.

Personally, I've always believed that unless all three branches have processes that counterbalance those of the others under any circumstance, the whole thing goes out of whack.

It's like a round of Pokemon really. As one branch grows too powerful, the others need to use their secret superhero weapon to bring it back into check.

Does that mean the GOP is right to try and strip federal courts of jurisdiction over the issue? To try, yes. But I'm personally, hoping the judiciary has some Intolerance-minded Deflective card up their sleeve and stops them in their tracks.

Selective stripping of jurisdiction sounds dangerous.

"The law has an ancient "legislative" tradition in the common law. Judges have had the power to be legislatures for hundreds of years within the orbit of law defined as "common law." Judges understood that they were not supposed to simply woodenly apply the common law, but be sensitive to needs to fine tune it or change it drastically if needed."

This is severely overstating the idea of common law. First, common law was never seen as creating new things, but rather systematizing already existing legal practices and traditions. Second, much of that came as holdovers from Roman Law which were continued (in part) after the Romans left by tradition though not statute. Third, common law could always be overturned by the legislature (Parliament).

The MA court clearly misapplied the 'rational basis' standard. They made findings of fact and resolved issues in dispute which you do not do in the 'rational basis' test.

"Any post on judicial interpretation which doesn't address the role of the court in protecting the minority against the tyranny of the majority is ducking the hard issue."

I'm not ducking this at all. The court does not have a GENERAL 'protect the minority' function. It has a specific function to protect the minority from UNCONSTITUTIONAL tyrannies of the majority. It has nothing to say about the issue otherwise. We wouldn't need all those messy amendments and compromises and laws if the rule was: "Judges can overrule the majority any time they feel that the minority is being unjustly trampled on." That is why I focus on constitutional interpretation while many of my opponents focus on their definition of 'justice'. A legitimate court isn't about your definition of justice or my definition of justice. The court is about the Constitutional limits placed on government action.

I think Sebastian is right to say that judges can only legitimately protect against unconstitutional tyranny of the majority (or tyranny of the majority that violates a statute.)

I think the classification scheme is extremely weak, because it does not seem to recognize the possibility that "the letter of the law" may be ambiguous and/or that early judges could get it wrong.

He mucks up the specifics too. He says that:
--"The law also reaches those circumstances the legislature ought to have included, even though by its terms they are excluded"
and that
--"The Sixth Amendment can be read either way" (so by its terms appointed counsel is not excluded.)
yet he describes Gideon v. Wainright as an "aspiration of the law" case. Makes no sense.

It seems to me that if you follow his conclusion to its logical premise, private (so not "freedom of the press") written communications (so not "freedom of speech" are not protected by the First Amendment. Which is not just wrong, but silly.

follow his premise to its logical conclusion, rather.

Please! Won't somebody think of the children?!

Katherine, I'm not sure I understand some of your objections:

"the letter of the law" may be ambiguous and/or that early judges could get it wrong."

Sure it could be ambiguous, but that doesn't justify the flights of fancy that go on at the higher levels unless they are infinitely ambiguous. And sure early judges could get it wrong, but should early judges be given more weight in explanations of contemporaneous understanding of words and phrases than modern interpretations? They can be wrong, but shouldn't they be given a high degree of defference unless you can make a slam dunk case against them?

The law also reaches those circumstances the legislature ought to have included, even though by its terms they are excluded.

Why is this confusing? Take Brennan's view that the Constitution outlaws the death penalty in one clause when it specifically outlines how to conduct death penalty trials in other clauses. Take Marshall's views on affirmative action even though it specifically goes against the words of the Civil Rights Act and the well known legislative history.

I think Gideon is an aspiration case because they method for making the decision between alternative readings is based more on underlying principles than on actual legal phrases. I would tend to put it in the 'spirit of the law' catagory myself.

Your freedom of the speech/press argument doesn't follow from his premise at all. Freedom of speech as a legal phrase was well understood before the ratification of the Constitution and its pairing with freedom of the press seems to indicate that the press freedom was to be interpreted in the same light as the speech catagory. So your example would be allowed even under a 'letter of the law' analysis. A constructionist analyzes the words and phrases as they were commonly understood at the time they were written. Freedom of speech had a legal meaning already. I am not so sure about freedom of the press, but its linkage to speech is clear in the amendment. Good jurisprudence is supposed to be like good translation--you analyze the words and phrases in context. You don't try to translate each word individually. But a lack of perfect precision regarding context doesn't mean that it is impossible to discern a difference between good translations, bad translations and false translations.


My memory failed me. Both freedom of speech and freedom of the press were well understood legal concepts by the time of the ratification of the First Amendment.

Sebastian, I think this is a very helpful categorization for some cases; however, I think you dismiss Katherine's objection too quickly.

Take Brennan's view that the Constitution outlaws the death penalty in one clause when it specifically outlines how to conduct death penalty trials in other clauses

I'd say this is actually a good example of her argument. The full text of the 8th amendment is:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

There's not much "letter of the law" there. It's true that by looking at a completely different section of the constitution, one can reasonably conclude that the drafters themselves would not have considered the death penalty to be cruel or unusual; however, the "letter of the law" in this instance is vague and relies on relative rather than absolute terms (i.e. "unusual" in comparison to what?). The amendment doesn't explicitly include or exclude any particular punishment at all, so how does one distinguish among your categories in decisions relating to it? Only an "original intent" or "original meaning" reading would render the death penalty certainly constitutional -- the "letter of the law" concept is of no help in interpreting it.

Ken, your example does what many judges do--you turn a limited ambiguity into an infinite ambiguity.

I will grant you, purely for the sake of argument that "cruel and unusual" is somewhat cryptic.

That does not give you unlimited license to make any rule you want. You can't rule that incarceration of convicts is unconstitutional. You can't rule that using the color blue in paintings is unconstitutional. And the fact that the constitution specifically provides the process for trying capital crimes means that whatever "cruel and unusual" meant, EVEN IF IT IS OTHERWISE A TOTAL MYSTERY it did not forbid capital punishment.

Even if the 8th amendment forbade "alkfad f dk vprnyuf" and we had no idea what that meant, we could easily infer that it did not forbid capital punishment, because the same document provided a process for trying crimes for which the death penalty was a punishment.

"Cruel and unusual" must either be measured as of the time it was written, or the time it is to be applied. If the former, we look at what was thought cruel and/or unusual in 1789. If the latter, we look around now.

What is the letter of the law? One could say that it is that punishments that are cruel and unusual when applied are banned. In fact, I think it says exactly that. I don't see any text that bans punishments thought to have been cruel and unusual 200 years before the date of punishment, or cruel and unusual as of the date of this amendment. It's open ended. Just like "interstate commerce," which clearly includes the internet.

If/when incarceration becomes "cruel and unusual," it will be unconstitutional.

It seems to me that the word "reasonable" in the Fourth Amendment is open to exactly the same moving interpretation. Is reasonableness measured as of 1789, or as of the date of the search -- I can't find a word in the Constitution that indicates to me that the answer is not the latter.

Remember, as the man said, what we are talking about here is a constitution -- a structural document intended to last through the ages. The drafters intentionally used words that allowed for the application of contemporary standards -- cruel, unusual, reasonable.

"Cruel and unusual" must either be measured as of the time it was written, or the time it is to be applied. If the former, we look at what was thought cruel and/or unusual in 1789. If the latter, we look around now.

What is the letter of the law? One could say that it is that punishments that are cruel and unusual when applied are banned. In fact, I think it says exactly that. I don't see any text that bans punishments thought to have been cruel and unusual 200 years before the date of punishment, or cruel and unusual as of the date of this amendment. It's open ended. Just like "interstate commerce," which clearly includes the internet.

If/when incarceration becomes "cruel and unusual," it will be unconstitutional.

It seems to me that the word "reasonable" in the Fourth Amendment is open to exactly the same moving interpretation. Is reasonableness measured as of 1789, or as of the date of the search -- I can't find a word in the Constitution that indicates to me that the answer is not the latter.

Remember, as the man said, what we are talking about here is a constitution -- a structural document intended to last through the ages. The drafters intentionally used words that allowed for the application of contemporary standards -- cruel, unusual, reasonable.

Sebastian, do you reject the holding of Loving v VA?


You can't rule that incarceration of convicts is unconstitutional.

This is true only under an "original meaning"/"original intent" interpretation. The letter of the law relies on relative terms -- as charleycarp suggests, one is forced to decide what social standard to use when evaluating a particular punishment in relation to this amendment.

Say that 50 years from now, almost all of the states have done away with incarceration, having found a more effective and humane way to fight crime. One state continues to incarcerate, and it is regarded by the rest of the nation as backward and inhumane for not giving up that strategy. In this scenario, incarceration could certainly be regarded as "cruel and unusual" from the standpoint of that contemporary society.

And the fact that the constitution specifically provides the process for trying capital crimes means that whatever "cruel and unusual" meant, EVEN IF IT IS OTHERWISE A TOTAL MYSTERY it did not forbid capital punishment.

This is not a valid deduction -- the fact that the constitution provides that process tells us only that the framers assumed that capital punishment would be acceptable, or at least felt it necessary to account for the possibility. There is not a line in the constitution that says that capital punishment is or is not allowed.

Just to be clear, I'm sympathetic to the original meaning philosophy and to your idea that the courts should function as agents of stability. I'm just arguing against the idea that it is the only valid interpretive strategy, and the idea that Brennan's decision in this case goes against the plain meaning of the constitution.

"And the fact that the constitution specifically provides the process for trying capital crimes means that whatever "cruel and unusual" meant, EVEN IF IT IS OTHERWISE A TOTAL MYSTERY it did not forbid capital punishment.

This is not a valid deduction -- the fact that the constitution provides that process tells us only that the framers assumed that capital punishment would be acceptable, or at least felt it necessary to account for the possibility. There is not a line in the constitution that says that capital punishment is or is not allowed. "

I really can't agree at all. If you take this approach you aren't treating the Constitution as a document. You are treating it as an unconnected series of words and phrases that just happen to be thrown together. They aren't.

You make the same mistake in the changing meanings of words that you made with possible ambiguity. Allowing for the words to change doesn't allow infinite change. The words have bounds both as words themselves and as phrases in a document.

The Eighth Amendment will never legitimately meant that Congress must use the color blue as the dominant color when printing money. The context of the Eighth Amendment is such that one of the bounds is that it does not completely exclude the death penalty. It may exclude certain methods of the death penalty, but it cannot be validly interpreted as outlawing the entire practice of the death penalty without divorcing it from the document in which it inhabits.

"Say that 50 years from now, almost all of the states have done away with incarceration, having found a more effective and humane way to fight crime. One state continues to incarcerate, and it is regarded by the rest of the nation as backward and inhumane for not giving up that strategy."

Here you are taking the argument in a wholly theoretical direction when we have empirical data. You are arguing for 'separate but equal' when I am saying that 'separate' is never 'equal'. Judges when actually given the power to move so far beyond the text as you argue do not restrict themselves to the case of the single holdout state. Brennan made his decision on the death penalty fully knowing that he was flying in the face of a majority of the states and a large majority of the population. The reason why we have this discussion in practice is because the courts go far beyond the lone holdout scenario.

As I have said before, I have no problem with gay marriage. I have a problem with expansive excercise of judicial power. If judges may interpret as broadly as you allow, they cannot be stopped through the legal process--they cannot be stopped by passing new laws or passing new amendments because they can be interpreted out of useful existance. Furthermore the amendment process should not be the only remedy to wilfully bad interpretation. The amendment process was made difficult to make the document itself difficult to change. It was not made difficult to make anti-textual judicial changes in the document difficult to correct.

(Even though the arguments are not being made by the same person, I note that in the course of less than 20 posts, textualism has been attacked both for being inattentive to the needs of the minority AND for being unbending in the face of majority opposition).

I have addressed Loving before. I think the analogy between Loving and gay marriage is not legally strong. See the previous thread on this topic.

I'm not arguing for or against textualism,and I'm not taking a position for or against Brennan's interpretation. I'm simply arguing against your absolutism. I think this statement of yours:

If you take this approach you aren't treating the Constitution as a document.

gets at the heart of the issue; but if you really see no difference between a judge interpreting the 8th Amendment in such a way as to forbid the death penalty and a judge interpreting the 8th Amendment in such a way as to constrain the printing of money, then I don't see any point in our continuing the discussion.

... except long enough for me to close my italics.

Hmm, not as easy as I thought...

Re textualism: forest vs. trees, Sebastian. A broader reading of the thread would suggest that those who disagree with you believe that textualism is a useful tool of interpretation, but is not the exclusive tool of constitutional interpretation.

The irony of you reading the thread so narrowly as to focus on the narrow issue and miss the larger one is not lost on me.

Are you really arguing that the Mass Sup. Ct in the gay marriage case made findings of fact? News to me that that court took original jurisdiction over the case.

Turning to the 2nd amendment, what does the term "keep and bear" mean to you? Last I checked, the historical interpretation of "bearing" arms meant military service. Given the preface to the 2nd amendment, this interpretation would make sense, no? So, american citizens can "keep" arms so long as they are "bearing" those arms, in an organized militia, like the National Guard. Any other interpretation would ignore both historical context and the language of the Constitution itself. Right?

Francis

"but if you really see no difference between a judge interpreting the 8th Amendment in such a way as to forbid the death penalty and a judge interpreting the 8th Amendment in such a way as to constrain the printing of money, then I don't see any point in our continuing the discussion."

And this is always my problem with this discussion. Of course I see a difference. I'm a textualist. My question is: HOW DO YOU SEE THE DIFFERENCE? Those who don't want to be bound to textualism refuse to explain how they make their decisions. They will not identify the limits of interpretation. They merely wave their hands, say "It is obvious how far is too far" and pronounce me the difficult one.

It isn't obvious how far is too far.

And none of you ever bother to explain how you know.

"Last I checked, the historical interpretation of "bearing" arms meant military service. Given the preface to the 2nd amendment, this interpretation would make sense, no? So, american citizens can "keep" arms so long as they are "bearing" those arms, in an organized militia, like the National Guard. Any other interpretation would ignore both historical context and the language of the Constitution itself. Right?"

You might have an argument if you had a good source for your historical claim that 'bear arms' was exclusive to military service. It isn't.

You might have an argument if the word 'and' in "keep and bear arms" doesn't denote that the two ideas 'keep' and 'bear arms' are two different things. But it does.

You really might have an argument if 'militia' didn't historically refer to every able-bodied man in the nation. But there is some pretty good evidence that it did mean that. So I guess I don't understand your point on textualism.

Of course I see a difference. I'm a textualist.

Huh? You're the one suggesting that if Brennan can say that the constitution forbids the death penalty, then he can say that it requires blue money.

HOW DO YOU SEE A DIFFERENCE.

"Cruel" and "unusual" are relative terms, so one has to choose a standard by which to judge. If one chooses the standard of modern industrial nations, the death penalty could conceivably be seen as falling into this category. It may not be a good standard to choose, but it's not beyond the bounds of reason.

"If one chooses the standard of modern industrial nations"

You are just hiding the ball with that statement. On what basis to you choose the standards for interpreting constitutional phrases? Why would 'the standard of modern industrial nations' be a good or a bad standard for interpreting constitutional phrases? On what basis do you choose between competeing standards? It is all a mystery.

"You're the one suggesting that if Brennan can say that the constitution forbids the death penalty, then he can say that it requires blue money."

I'm saying, how do you determine that he cannot? If he said that, you would presumably suggest that it wasn't a fair interpretation. Therefore what do you use to determine what is a fair interpretation? And if it has anything to do with 'evolving social standards', why is that always invoked to overrule the majority? How do you know when social standards have evolved enough? How do you know when social standards are evolving in a good direction? What do you do with social standards that evolve in a 'bad' direction? Is it impossible for you to imagine social standards evolving in a bad direction? What is the Constitutional principle that allows judges to reinterpret words in a 'good' direction on the basis of evolving social standards, but not in a 'bad' direction? All of these questions are easy to answer for a textualist, but the rest of you don't even bother to hint at the answers.

They are not easy to answer for a textualist. Hugo Black and Antonin Scalia didn't agree on much. For that matter, you make an awful lot of arguments based on legislative history for a textualist, and your statements about the Constitution being more than a collection of individual words is opposed to Scalia's reliance on dictionary definitions.

This idea that "judicial activism" was invented by liberals in the 1960s, or that self-professed fidelity to the original text of the Constitution is any defense to it, shows a complete ignorance of or disregard for history. Lochner. Bradwell. Plessy. Hamer v. Dagenhart. I could go on. (I could also mention Bush v. Gore, but I think the discussion would be ridiculously tiresome. I could also mention Thomas' dissent in Hamdi.)

How do Holmes and Brandeis look now compared to the other justices on the early 20th century Court? Who were the legal realists on that Court and who claimed to be merely dictating what the text of the Constitution required?

Look, we need good judges with integrity and wisdom or they will not write good decisions. And even the good judges will sometimes get it wrong. There is no legal theory that defends against that.

"You're the one suggesting that if Brennan can say that the constitution forbids the death penalty, then he can say that it requires blue money."

I'm saying, how do you determine that he cannot?

Assuming that "the constitution" refers specifically to the Eighth Amendment discussion above, your reductio is just plain absurd here, Sebastian. While an invariable feature of natural language is that there is no bright-line test for "meaning", and this fuzzy corona of "meaning" can morph over time, that's not at all the same as saying that any word (or collection of words) can mean anything. Your argument -- which, insofar as I can discern it beneath the hyperbole, seems legitimate -- would be better served if you were to pick a better example.

"Cruel and unusual" must either be measured as of the time it was written, or the time it is to be applied. If the former, we look at what was thought cruel and/or unusual in 1789. If the latter, we look around now.

My stance has generally been to interpret the (meaning of the) law in the context during which the dispute arose. In the case of Constitutional interpretation, this means that, although the authors' intent can be used to inform judicial decision-making, words like "cruel" and "unusual" should be interpreted under modern standards of cruelty and unusualness rather than those of the 18th century.

[And that's a damn good thing here, incidentally, for those who are familiar with 18th century notions of cruelty and unusualness in re corporal punishment...]

There are a number of vague philosophical underpinnings to this belief, but it's probably best just to leave this as axiomatic for now. Usual disclaimers apply: IANAL, these opinions have not been fully thought through*, &c

* Anyone else ever seen the disclaimer on the Daily Show International Edition? One of the funniest pieces of TV I've ever seen, and it's just a sheet of plain text...

If the delegates to the Constitutional Convention:

1) could not agree on, or wanted to take no position on, whether the death penalty should be permitted under the Eighth Amendment, but
2) wanted to make it crystal clear that with or without the death penalty the accused should have the right to a grand jury indictment and due process of law,

how would they have phrased the document?

"Look, we need good judges with integrity and wisdom or they will not write good decisions. And even the good judges will sometimes get it wrong. There is no legal theory that defends against that."

But textualism if adopted by most judges, strongly mitigates the harm that can be done.

And I have never once claimed that judicial activism was a purely liberal pursuit. It is a serious problem with endemic to the judicial branch of government as it is currently understood.

And the fatalism of your formulation doesn't suit you. I would never try to argue that we shouldn't bother with rules and general understandings on torture because "We need good interrogators with integrity and wisdom or they will break the rules set before them." That is practically a tautology, but it isn't an argument against rules and understandings. It doesn't mean you don't make the rules as clear as you possibly can. That doesn't mean you just throw your hands in the air and give up. That doesn't mean that you just let them do whatever they want. You identify the rules. You identify those who break them. You punish those who break them.

Katherine you make the same catagory error that I address above. Disagreement among textualists does not prove that other forms of interpretation are subject to less confusion. The fact that textualism can be abused does not change the fact that the other systems of interpretation are far more open to abuse.

What I want to know has been the same since the beginning. If the limits on judicial interpretation are not textual limits, what are the limits?

Anarch, I am forced to use ridiculous examples because no one bothers to engage the other examples. Brennan's death penalty opinion. No one has expalined why he can get away with it. He is a [email protected]#$% liberal hero-judge but no one can explain how he gets to things like this. Why does he get to use 'evolving social standards' that do not have huge amounts of support in the nation? If you get to select evolving social standards with less than majoritarian support, how do you guard against bad 'evolving social standards'? If 40% of people strongly dislike Miranda warnings can we cite an 'evolving social standard' that hits the rights of the accused? Of course not, because Brennan picks the social standards he likes and ignores those he doesn't. But that is not jurisprudence. That is judicial tyranny.

"If the delegates to the Constitutional Convention:

1) could not agree on, or wanted to take no position on, whether the death penalty should be permitted under the Eighth Amendment, but
2) wanted to make it crystal clear that with or without the death penalty the accused should have the right to a grand jury indictment and due process of law,"

Easy: They could say "If capital cases are otherwise permitted they must...."

But you aren't seriously suggesting that anyone at the time thought the 8th Amendment would outlaw captial punishment are you?

Point taken. Of course, they could also have said that "capital punishment is not cruel or unusual"....I don't agree with Brennan's view, but think it is quite defensible. The constitutional text, standing alone, leaves open the possibility that they were taking no position on capital punishment but allowing for the possibility of its existence. I don't know the history of the ratification debates and the federal death penalty statute. I do not understand why is it completely non-controversial to say that what constitutes an excessive fine is going to change with the times, but lawless activism to say that what constitutes cruel and unusual punishment is going to change with the times.

I think we are operating with different definitions of "textualism." I am not saying you don't need a strong basis in the text of the Constitution. I am saying that sometimes you need to look to other sources--including, BTW, legislative history, which textualists are generally not supposed to consider to resolve ambiguities in text.

As for the claim that textualism and originalism limit the potential for abuse more than any other respectable judicial philosophy--I flatly disagree.

The torture memo's definition of severe pain as severe enough to lead to organ failure or death was a textualist analysis.

Justice Thomas dissent in Hamdi was written by a textualist judge.

This argument, from Dred Scott, is a textualist and originalist argument:

[There] are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.

One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808.... And by the other provision the States pledge themselves to each other to maintain the fight of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories.... And these two provisions show, conclusively, that neither the description of persons therein referred to, nor their descendants, were embraced in any of the other provisions of the Constitution; for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen.

No one of that race had ever migrated to the United States voluntarily; all of them had been brought here as articles of merchandise. The number that had been emancipated at that time were but few in comparison with those held in slavery; and they were identified in the public mind with the race to which they belonged, and regarded as a part of the slave population rather than the free. It is obvious that they were not even in the minds of the framers of the Constitution when they were conferring special rights and privileges upon the citizens of a State in every other part of the Union.

I don't think Miranda or Roe v. Wade, to name two conservative bete noires, are very good decisions. But I will take them over the Bybee memo, the Hamdi dissent, and Dred Scott any day of the week.

Why does he get to use 'evolving social standards' that do not have huge amounts of support in the nation? If you get to select evolving social standards with less than majoritarian support, how do you guard against bad 'evolving social standards'?

There are two separate things you're addressing here:

1) Brennan's decision was badly made.
2) The mechanism whereby he arrived at that decision was fundamentally broken.

From my point of view, you're arguing the latter but only engaging the former. How does any system of "jurisprudence" differ against "judicial tyranny"? [I note you've failed to define both terms, thus leaving me somewhat in the dark as to your intentions.] Under your system of textualism, what happens if a judge makes what you consider to be a bad decision? Are you implicitly asserting that the Congress will suddenly have the power to override those decisions which it doesn't like? That there will be popular referenda overturning Supreme Court decisions? If not, your arguments reduce to a) you not liking Brennan's decision, and b) you not having a mechanism to eliminate said decision. And fair enough. But right now you're not positing a structural solution to the problem, only complaining that you don't like his philosophy.

If 40% of people strongly dislike Miranda warnings can we cite an 'evolving social standard' that hits the rights of the accused? Of course not, because Brennan picks the social standards he likes and ignores those he doesn't.

Well, in a sense, yes. But then again, he's a judge. That's what judges do: they judge, i.e. make decisions as best they can using their internal barometer for what is legal, informed by what they regard as ethical and moral. Katherine's remarks re wisdom are well taken: regardless of their political disposition, that's all we have to go on until someone modifies the structure of the judico-political system to induce a systemic check on judicial decisions.

I'm a little too distracted to take on your specific example of Miranda warnings right now. I'll tackle it later, time permitting.

PS: Judicial tyranny? Don't make me laugh. When we get the hanging judges back, or deportation, or penal conscription, or any of those fun remnants of the 18th century -- remember, the century which you're taking as a barometer of "cruel" and "unusual"? -- then we'll talk about tyranny. Until then, what you're complaining about is a judiciary that has more discretion (and thus, more power) than you'd like.

This argument, from Dred Scott, is a textualist and originalist argument...

I got into a little trouble back in my American History class in high school for arguing that Dred Scott was, in fact, the legally correct decision, despite its (modern?) immorality...

This is Brennan's concurrence in Furman, by the way.

I am not persuaded, but he has a better historical argument than I would've thought. And man could he write.

"Under your system of textualism, what happens if a judge makes what you consider to be a bad decision? Are you implicitly asserting that the Congress will suddenly have the power to override those decisions which it doesn't like?"

If we are talking about remedies there is always impeachment.

But hell, I'll even take norms. If textualism was a norm we would be better off.

"I am saying that sometimes you need to look to other sources--including, BTW, legislative history, which textualists are generally not supposed to consider to resolve ambiguities in text."

Who says you can't use those in the case of ambiguities? Sure you can. But those other sources absolutely defintely do not include so-called non-majoritarian 'evolving social norms'. Also you don't get to create ambiguities just to resolve them. That is what happened with the Civil Rights Act and affirmative action. The Civil Rights Act is not ambiguous on the point of affirmative action. But the court wanted affirmative action so it created an ambiguity, then ignored the legislative history, the made a pronouncement about the legislature should have done. And that is just for a garden-variety law. It could have been easily changed to allow for affirmative action. Just go through the legislature. No 2/3 majority needed. No 3/4 of states needed. Just get a simple majority. But they didn't bother with that--and that isn't a good thing.

Anarch, you write:

There are two separate things you're addressing here:

1) Brennan's decision was badly made.
2) The mechanism whereby he arrived at that decision was fundamentally broken.

I know it was badly made. I cannot discern any real mechanism whereby he arrived at that decision so I can't really address if it is fundamentally broken. It appears to me that he just personally felt that the death penalty was bad and therefore ruled it was Unconstitutional. But I have given all sorts of opportunities for people to explain some other rationale, but no one does. And when I take guesses, "evolving social standards" people won't even engage that. So what do you want from me? Show me the non-'I feel like it' basis for such decisions and we can discuss if they are a good idea.

Thus far the discussion can be boiled down to:

"We don't like textualism because it is too restricitve."

"I don't like free-form judiciary because there are no limits whatsoever"

"Yes, there are"

"What are they"

(Silence)

re: (silence). Try the following:

Precedent.

The need to assemble five votes.

Logic. Persuasive reasoning.

you know, the stuff lawyers are supposed to do.

btw, referring to norms of constitutional interpretation with which you disagree as "free-form judiciary" is insulting and childish.

There is precious little evidence that purportedly textualist judges are any more consistent in their application of their constitutional theory when it cuts against their desired outcome than any of the "free-form" (aka realist) judges. See, e.g., Balkin's blog.

And there is a rich field of study on the constraints of constitutional interpretation that goes well beyond textualism. To smear an entire field as "free-form" is, well, typical, but not terribly informative.

regarding my sources on the 2nd amendment, try Silveira v. Lockyer, 312 F.3d 1052. you may disagree with the outcome, but your claim that i lack a good source is just wrong.

Francis

"What are they"?

The text of the constitution. The text of any relevant statutes. Precedent. Historical evidence about the meaning of the text of the constitution--general dictionaries will be more useful in some cases, legal dictionaries in others, ratification debates in others. In close cases, the general values protected by the constitution such as freedom of conscience and minority rights and due process. In really close cases, you may be left making policy decisions and the country is much better off if you're honest about it.

I don't think there's any one magic philosophy of Constitutional interpretation that gives you the right answer, or even gets you closer to it. Textualism and originalism tell you that certain methods of interpretation are not allowed, even if they might provide useful evidence; instead you have to fake mind-meld with the founders or use textual "evidence" that proves very little.

The main justification for restrictive philosophies like textualism and originalism is that they guard against judicial abuses of power. But if you look at the actual history of the Supreme Court, I see no proof whatsoever that they provide any additional security against whatsoever against those abuses.

Despite all the foregoing—which is an argument that I doubt can ever be resolved satisfactorily—despite my disagreement for one reason or another with various Supreme Court decisions my gripe is not with the Court but with the Congress. First, for using the Court as a stalking horse and second, for not acting under the Congress's Constitutional powers to limit the appellate jurisdiction of the Court. It should have been done long, long ago.

Logic USING WHAT BASIS?
Persuasive Reasoning ON WHAT GROUNDS?

You just shift the hard-decision down the road by appealing to logic. Logic using which legal facts? Logic using which ideas? Logic using which 'evolving social norms'? Logic excluding which 'evolving social norms'?

"btw, referring to norms of constitutional interpretation with which you disagree as "free-form judiciary" is insulting and childish."

What norms? You can't even tell me.

Silveira v. Lockyer doesn't do what you claim. It asserts de novo that there is absolutely no individual right to bear arms outside of participation in a state militia. Amazing that no one was able to figure that out in 200 years of the 2nd amendment. If the Ninth Circuit's interpretation made logical sense, the Amendment would read "A well regulated Militia being necessary to the security of a free State, the right of the State to keep and the people to bear Arms, shall not be infringed."

This brings up a whole other judicial abuse: the pretense that the real meaning of the fact that no one challenged a clear reading for 200 years is that there was an unresolved ambiguity, which of course the court resolves in opposition to the 200 year clear understanding.

Katherine, you write:

The text of the constitution. The text of any relevant statutes. Precedent. Historical evidence about the meaning of the text of the constitution--general dictionaries will be more useful in some cases, legal dictionaries in others, ratification debates in others. In close cases, the general values protected by the constitution such as freedom of conscience and minority rights and due process. In really close cases, you may be left making policy decisions and the country is much better off if you're honest about it.

Katherine I don't see how your view conflicts with Scalia's at all except that he thinks in the very closest cases where you can't get a resolution, you defer to the legislature. I don't see from your explanations how you are not a textualist. I think you might be confusing textualism with "original intent'? I only think that because you talk about mind melds. Your crtieria are straight-forward textual analysis tools--textualism.

You do not mention--'penumbras', 'emerging social values', 'always protecting the minority from the tyranny of the majority', 'general constitutional ideals', etc.

You seem to be willing to engage the Constitution itself, and try to discover what it actually is. Unless you utilitze other methods, you sound like a textualist. Or perhaps you would be willing to rule against what you find on examination? I understand why fdl and CharleyCarp are not textualists--they want to insert other modes of analysis like ultimate justice, or generalized protection of minority viewpoints. I don't understand what you want out of jurisprudence that you think textualism does not offer.

What if the text is not clear? How do you know what their original intent was? But are you sure? Are you really really sure? REALLY REALLY SURE? How do you know that? How do you know THAT? Why should I believe you? On what grounds does that logically follow from Madison's writing? Why why why why?

That's your argument. The "why why why why" technique is a pretty old tactic, used to great effect by kids everywhere to drive their parents crazy, and it has no particular application here. Please cut it out, or I will lose all patience with this discussion.

I could ask more serious questions too:
What if the founders disagreed? What if the people who wrote it had one idea, but the people who ratified it had another? How can you ever establish what the anonymous ratifiers thought? What if the founders' intent and the contemporary meanings of their words conflicted? How do you know which dictionary or which definition within a dictionary to use? What if there is no evidence that one provision was written with another in mind? If the founders wanted that to be the rule, why didn't they say so clearly? What if original intent and stare decisis conflict? Do you abandon stare decisis altogether? If not, how do you know which precedents should stand on stare decisis grounds and which should be overturned? Why do you trust the unelected judges of 200 years ago, who neither wrote nor ratified the thing and got it wrong in case after case after case, more than the judges of today? Do you think Brown v. Board of Ed was wrong? If not, how do you know and why do you know better than the courts of the 19th century? Do you think Bradwell v. State was right? But how do you know better than the courts of the 19th century that agreed that women had no rights? Do you think Loving v. Virginia was wrong? But the anti-miscenegation laws were constitutional under the 14th amendment for almost a century. Do you think the First Amendment allows criminal punishment for political speech in general? In wartime? But it was held to for the better part of a century. Do you think the First Amendment requires that truth be a defense for libel? But it was held not to for a long time, by judges who lived in the founders' day. What is your basis for recognizing that those precedents, which stood as the clear "understand" for decades and sometimes close to a century, are wrong but that other old precedents are not? And what do you make of the Ninth Amendment?

As I said, I think we're operating with different definitions of "textualist". If your definition is "engaging the text" almost every judge is a textualist (though there are better and worse ones.) My understanding, and Scalia's is a narrower definition. I don't think either of us would pass muster as a textualist as far as Scalia was concerned, and I'm not sure how good a textualist I am as a general rule. I would never overturn Bolling v. Sharpe, for example.

We're also carelessly shifting between originalism and textualism. I'm even less of an a originalist than a textualist.

Emanations and penumbras are a way to give content to the Ninth Amendment. The preferred conservative reading of the Ninth Amendment renders it "mere surplusage" which is a big constitutional no no.

Sebastian:

This is severely overstating the idea of common law. First, common law was never seen as creating new things, but rather systematizing already existing legal practices and traditions. Second, much of that came as holdovers from Roman Law which were continued (in part) after the Romans left by tradition though not statute. Third, common law could always be overturned by the legislature (Parliament).


1. The English legal system pretended that the common law was immutable and unchanging, but this was a falsehood and known to be a phony statement even hundreds of years ago. The English legal system allowed for "changes" in an "unchanging" law by adopting the practice of using legal "fictions" so that they could go on pretending that nothing had been changed. (I assume you know what Englsh common law "fictions" were). This was the origin of the ancient practice of using "John Doe" v. "Richard Roe."

American courts rejected this notion over two centuries ago, and have regularly been revising the common law when the judges are convinced of the need to do so. The example of strict products liability law proves this point (as would many other examples).

2. The development of the English common law has next to nothing to do with Roman Law. You need to revisist history on this one.

3. No doubted the supremacy of Parliament over common law, but that is not the point. First, for most of history judges made most of the laws because the modern trend of codifying the law by legislative act did not exist in those times. Parliamnet had supremacy over common law, but rarely did so, which required common law judges to make the law (while pretending that all they were doing was interpreting an unchanging law from time immemorial). Second, by definition (and Marburyt v. Madison), the U.S. "Parliament" is not above the judge's interpretation of the U.S. Constitution, so the analogy makes no sense when it matters most.

"Judicial interpretation" of the Constitution presents this basic philosophical paradox, since by definition the activity is not simply implementation of the will of the legislature.

And much of the Constitution is, by its nature, open to interpretation and re-interpretation; it is not a simple matter of statutory interpretation.

Apologies for the snarky tone of the 5:55 post, because I think your questions that I characterized as "why why why why" come from a genuine belief that we were arguing that you could just plain ignore the text of the Constitution when it was inconvenient. I don't think anyone, left or right, really thinks that. Perhaps I am mistaken.

Your response to the Silviera decision precisely proves Katherine's 5:55 post. It is a richly textual decision, full of historical analysis.

But you disagree, so therefore it's a rogue decision. Your "de novo" comment, for example, is just silly. What, there's no authority cited in the decision?

Sebastian, your philosphical conservatism appears to lead you to a theory of judicial conservatism. The only point that I'm trying to make and (speaking without authorization for her) Katherine is making much better is that "textualism" is ultimately a hollow judicial philosophy. It asserts that it restrains unbounded judicial lawmaking, but it does no such thing. It leads to decisions like Silviera, and even its greatest champions (like Scalia and Thomas) abandon their reliance on it in ways that appear unsupported (unless one takes into consideration their philosophical preferences.)

Are there restraints on judicial lawmaking? Of course! Precedent, for one. Persuading one's fellow Supreme Court justices. The very fact that judges are either elected by the general public or appointed with advice and consent of the Senate.

Yes, Justice Brennan said some stupid things. No, the US Supreme Court's death penalty jurisprudence is not internally consistent. Nor is its jurisprudence on regulatory takings, nor on the relationship between the federal government and the states.

OMG, we live in an imperfect world! But appointing Justices to the Sup Ct who swear solemn oaths to the doctrine of textualism will not change that one bit.

A. The doctrine does not answer the hard questions, and reasonable minds will differ. see, eg Katherine's 5:55 post and the Silviera decision.
B. Even Justices Scalia and THomas are human (despite some evidence to the contrary.) As Prof. Balkin has pointed out, both of them fail to apply their chosen philosophy on a regular basis when it cuts against their political preferences.

Your quest for certainty is futile, young Skywalker. Laws are made and interpreted by humans. In the tiny category of cases in which a state or federal court must review anti-majoritarian (gay marriage) or unpopular with a substantial minority (gun control) laws for their constitutionality, judges will inevitably bring all their powers of reason and biases to review the matter.

At the end of the day, I'd simply rather have the decision be honest as to the factors weighed by the court in reaching its decision.

Francis

Thanks for the brush-off. I didn't ask whether you rejected Loving because I wanted to link it to gay marriage. I asked because I wanted to see if you are really prepared to force individual human beings to wait for state legislatures to remove irrational legislative barriers to what in anybody's philosophical universe ought to be a fundamental human right.

Either a court is allowed to say that state statutes intrude on constitutional rights -- even where those rights might not be spelled out exactly perfectly -- or it may not.

I'm not a historian of the subject, but I'd be willing to bet that no reasonable case can be made that in 1868 either the drafters of the 14th Amendment or the state legislators that ratified it had any inkling that it would preclude state statutes like that at issue in Loving.

The approach you advocate seems to me to require the rejection of Loving. If not, why not?


I also found one of your comments upstream about the Mass gay marriage decision interesting. You said that the decision was plainly wrong because the court had engaged in fact finding and resolved disputed issues, which is improper when looking to decide whether a statute has a reasonable basis. Assuming that resolving disputed issues is actually a no-no in a case where the standard of review is "rational basis," I have a question about how your interpretative methodology functions: is there a provision of the Massachusetts Constitution precludes either fact finding or resolution of disputed issues of fact when determining whether or not a statute is unconstitutional? Or is this a matter of statute? Or, if not "the letter of the law," are you getting this, as a legitimate basis for criticizing a decision, from the "spirit of the law"? Maybe it's a court-designed rule to advance the underlying purpose of the law. Is it nonetheless a legitimate basis for criticism?

(I actually don't know whether the Mass constitution or code specifies the methodology for judicial review. I doubt it, but suppose it might.)

I think "tyrany" is an odd word to use when describing judicial decisions that result in protecting an individual from assertions of the power of the state.

I've never thought about whether or not I'm a textualist. I certainly don't think the government has any powers other than those set forth in the text. (This puts me at some odds with Curtiss-Wright and other decisions based on inherent powers I don't see written). In fact, it looks to me like the text of the 8th and 4th amendments, and the 14th, are more amenable to my view that the standards by which they are judged will grow and evolve than the view that they are fixed forever. All you have to do is compare the exact figure given in the 7th amendment with the word "excessive" in the 8th to see that the text is telling you something -- that you have to look up from your history books, and see what is reasonable in the community at the time.

Ultimate justice? I'd never use the term.

As for Blue Money -- a nice Van Morrison song for you youngsters -- if you can seriously contend that circumstances could arise that a majority on the court could find in good faith that imposing it would be (a) a punishment and (b) cruel and unusual, on some sort of reasonable community standard, then I'd agree that if so it could be held unconstitutional. Because that's what the text commands.

"...a genuine belief that we were arguing that you could just plain ignore the text of the Constitution when it was inconvenient. I don't think anyone, left or right, really thinks that. Perhaps I am mistaken."

I'm pretty sure that Brennan and Marshall both thought it was ok to ignore the text when inconvenient. See affirmative action vs. Civil Rights Act and see Death Penalty. And we haven't even talked about where the Constitution lays out a trimester system on abortion.

I don't see the brush-off on Loving. I discussed it in detail very recently. Why clog up this thread again?

The MA court adopted the Supreme Court's equal protection tests.

I don't have a quest for certainty. I have a quest for generalized limits. So far I still haven't seen any.

Katherine, which of the things you suggest are important for interpretation do you believe that Scalia would disagree with? I think his thing is that you only go beyond the direct text in the case of ambiguity, and he isn't very broad about ambiguity.

This is in direct contrast with Brennan or Marshall, who quite routinely would go off on blatantly extra-textual expeditions. And it is direct contrast with O'Connor, who is able to find amazingly complicated balancing tests in even the most simple texts. O'connor is always able to find her idea of the best policy solution in the Constitution.

"if you can seriously contend that circumstances could arise that a majority on the court could find in good faith that imposing it would be (a) a punishment and (b) cruel and unusual, on some sort of reasonable community standard, then I'd agree that if so it could be held unconstitutional."

My whole point with the hypothetical is that the court never has to do anything in good faith. And they regularly don't. And we never do anything about it.

Scalia's very anti legislative history, and much less apt than I am to find the text ambiguous,* and much more apt than I am to heap scorn on those who disagree with him. (I am not bad at this myself, but I am nowhere close to Scalia.)

And I am quite liberal, and he is quite conservative, and that inevitably affects our views on specific questions. He breaks ties in favor of the government when it's a question of individual rights, and against the government when it's a question of enumerated powers. I do exactly the oppposite. (Or I would, given the chance).

Don't you insult William Brennan's good faith to me, again; it will get ugly...in my book he is to Supreme Court justices as Bobby Kennedy is to politicians: not the best (that's Brandeis, John Marshall, FDR, Lincoln) but the one who made you care the most. And an Irish boy from Newark who quoted Yeats and wrote better than almost anyone
on the Court before or since, no less.

The 8th amendment is incredibly slippery and no court has found a satisfactory way to give meaning to those words without imposing highly personal judgments. Brennan believed with absolute good faith that the death penalty was cruel and unusual if the terms had any meaning. And his death penalty opinions are a lot more coherent and defensible than the pleasing-to-no-one mess that we've ended up with.

He was an extremist, and he did not defer enough to the text or history of the Constitution, but there is no question of his good faith and no question that we are better off for his having been on the Court.

On the Civil Rights Act and AA, I don't even know the case and, embarrassingly enough, I don't know the exact phrasing of the law. However, I googled Humphrey's statement and he says that he will eat the bill if it is used to discriminate against whites, not if it fails to protect whites from discrimination. No case argues that the Civil Rights requires AA, does it? (And if the statute is so obvious, why hasn't this presumably-1960s or 1970s liberal decision been reversed?)

Also, even as someone who think legislative history matters, one senator's statement is very far from conclusive on what the bill requires. (Which is why the conservative assurances about the FMA allowing civil unions are worthless.) They might tell us whether Humphrey is honor-bound to eat a lot of paper, but in and of themselves they don't tell us whether the court decision you're discussing was correct.

I think impeachment of judges for decisions we disagree with is a horrendous idea, and jurisdiction stripping is not much better (Article III allows jurisdiction stripping, but that doesn't mean it's a good idea.)

*you say I pretend there is ambiguity when there isn't, I say Scalia pretends there is no ambiguity when there is. Potato, potahto, yadda yadda yadda.

"The 'why why why why' technique is a pretty old tactic, used to great effect by kids everywhere to drive their parents crazy, and it has no particular application here. Please cut it out, or I will lose all patience with this discussion."

It's also the best way to get people to explain and justify their arguments, and lay them out so as to best convince others. Asking people to cut out asking "why?" strikes me as 180 degrees from a convincing argument or response, no matter how annoying it can be to have to actually justify arguments and give reasons.

I say this as someone who tends to lean more in your direction, Katherine, in this discussion, than towards Sebastian. But you just lost 100 (out of 1000) argument points with that one, with me.

"Your comment has not been posted because the computer you are using appears on a list of machines exploitable by spammers. You can fix the problem by consulting the following results

sbl-xbl.spamhaus.org - http://www.spamhaus.org/query/bl?ip=4.228.141.131"

This would be less annoying if clicking on the link didn't return "sbl-xbl.spamhaus.org does not exist."

And, aside from the non-functionality of the provided link, when one manually pastes in the other link, one obtains this helpful response:

IP Address Lookup

4.228.141.131 is not listed in the SBL

4.228.141.131 is listed in the XBL, because it appears in:

* CBL

Well, yes, now that I've read this, I'll change my sinning ways. But first I have to, again, go through this hope to post this message.

Um, and what am I supposed to do, having been educated by this informative page?

Speaking of Brennan you write:

"He was an extremist, and he did not defer enough to the text or history of the Constitution, but there is no question of his good faith and no question that we are better off for his having been on the Court."

Did he in good faith do what he thought was best for the country? I'm certain. Did he in good faith believe he was implementing the Constitution when doing it? I seriously doubt it. Looking at his decisions you can see that he quickly abandons textual argument and deeply embraces best-policy argument whenever he gets a chance. His decisions were always persuasively written--as explanations of policy or good practice. Unlike Scalia, you rarely (and I would say never because I can't think of a single case, but am shy of the absolute here) find Brennan making a decision that he would politically disagree with as a legislator. He did not act as if he were bound by the Constitution. When he had a disagreement with the Constitution, he won.

That isn't a virtue I can respect in a judge.

It's not asking "why?", it's responding to the explanation with "why?" or "but how do you know?", and responding that way to the next answer, and the next, without a serious attempt to understand the explanation given.

There's not much substance to it, and no end to it, not when it comes to a topic like this.
Anyway, I realized that it was probably based on a good faith misunderstanding, and apologized to Sebastian, so....

In general, the refusal of many conservatives to acknowledge that liberal judges might be acting in good faith really gets under my skin. I find a lot of Scalia and Thomas and Rehnquist decisions indefensible and inexplicable, and by the end of my first year of law school I decided that Bush v. Gore shouldn't have shaken my faith in Rehnquist, O'Connor, Scalia, Kennedy and Thomas because I shouldn't have had any to begin with. But I always knew to put this attitude aside if I wanted to have useful conversations with Federalist Society members, and by the end of my second year I'd more or less outgrown it. (Thanks in no small part to Mr. Living Constitution himself, by the way).

Gary, the CBL is a blocking list of IP addresses. The relevant link is here. But it looks like your IP is just part of a dialup pool, so just disconnect and come back and you should get a different IP.

As for the why, why, why--usually the complaint is offered after repeated answers. I'm not trying to be difficult, but I honestly believe that no one other than myself on this thread has answered what they think represents a useful interpretative limit. I believe the closest I have seen is Katherine's: "...belief that we were arguing that you could just plain ignore the text of the Constitution when it was inconvenient. I don't think anyone, left or right, really thinks that. Perhaps I am mistaken." indicating that she believes there is a theoretical boundary to legitimate interpretation. But I don't think it gives much of a hint about where the boundary can be found.

Everyone else seems to be from the "it's obvious" school or they don't want to share their secret understanding of interpretation.

The defining question for me is "How do you know when a judge has ruled incorrectly?" If you can't answer that, I don't think you have a real theory of jurisprudence.

RE: Why, why, why.

I'm not trying to be difficult. But I honestly don't think anyone here has even approached my basic question of where the limits of legitmate interpretation lie. Katherine suggests that she believes limits exist, but she hasn't given much hint about what they actually are. FDL suggests 'logic' which is a punt because he doesn't explain 'logic' applied to what. Logic applied to the text is textualism, and he has a problem with that so while he obviously means something else--but what is unknown.

Basically: "How do you know when a judge has decided wrongly?"

If you can't come to a fairly clear answer on that, you don't really have a system of jurisprudence in mind.

So how do you know when a judge has decided wrongly?


Oops, didn't mean to effectively double post. I thought I deleted the first post by accident, but apparently I posted it by accident and then didn't notice. Sorry. And I tried to tone it down in the second. Ah well, that is what I get for writing after midnight.

How do you know when a judge has ruled incorrectly?

"When the text of the Constitution contradicts him" is question begging, as are most answers to this question. But you're asking, so give it your best shot.

In the opinions I've read, Scalia very rarely reaches a decision that does not coincide with what he'd do as a legislator (actually that's not quite the right test; presumably they wouldn't vote for laws they thought unconstitutional...)

I can think of two (Hamdi & the flag burning case.) I can think of many more of his opinions that I find just indefensible--the idea that some immigrants are not "people" under the 14th amendment, for example; this from a man who relies on dictionary decisions.

Brennan was unhappy with his decisions in the obscenity cases, and conflicted for a long time about school prayer. I wonder exactly what he thought about abortion, because he was very much a Catholic.

The test of good faith is not whether you think there is objective textual justification for a justice's view of the Constitution. The test of good faith is whether he (or she) honestly does--and I see no basis for your belief that Brennan failed that test. As bad as his opinions seem to you, I guarantee you that there are Scalia, Thomas or Rehnquist opinions that seem as bad to me.

I think O'Connor's actually the most results driven of the lot.

Again, I'm not arguing for a particular system of jurisprudence. I don't have one, some of the best judges in history haven't had one, and I think the honesty with which you apply whichever system or combination of systems you choose gets you further than the system you profess to believe in.

There are good and bad textualists, originalists, living constitutionalists, formalists, realists, law and economics practitioners, libertarians, individual rights theorists....etc. etc. I find some of these theories more persuasive than others, of course, but I don't find any of them entirely satisfactory.

It's sort of like religion/moral philosophy, in a way (note that I am not arguing that constitutional law is a matter of faith or anything like that--for one thing we know the Constitution exists and agree on the basic text. Please take the analogy for what it is and no further*). You can always ask how you know X is wrong, but there is no entirely satisfactory answer. Which is not to say that the question is not worth asking or that some answers are not better than others, but the least ambiguous answer ("it's wrong because Mohammed/Jesus/etc. said so on page 358, paragraph 2") is not necessarily the best; often it is one of the worst. And someone's religious faith strongly influences how they make moral decisions, but it's an incredibly lousy predictor of how moral a person they are.

Now that I think about it, reform Judaism has an awful lot in common with the "living Constitution" approach and is subject to the same charges of being made up as we go along.
(On the other hand, I have also been known to argue that Orthodox Judaism needs an Antonin Scalia or other strict constructionist--e.g. that we don't milk chickens so there's no risk of a chick being boiled in its mothers milk. I'm not entirely serious about this, though.)

Ok, it is way past my bedtime and I am rambling ridiculously. If I don't respond tomorrow, take it as a sign that I'm actually working, not that I give an inch. ;)

Sebastian: Basically: "How do you know when a judge has decided wrongly?"

If you can't come to a fairly clear answer on that, you don't really have a system of jurisprudence in mind.

So how do you know when a judge has decided wrongly?

I'll reiterate what Katherine said: How does anyone "know" when a judge has decided wrongly? Under what absolutist metric are you operating such that this ceases being a question of opinion and becomes a matter of fact? In what sense is the sentence "I know that judge has decided wrongly" even meaningful?

What you're implicitly positing is the existence of an abstract, static (though not immutable), absolutely knowable entity called "The Law". That's hardly a new philosophy, but it's not really a "system of jurisprudence" either.

And I'll reiterate what I said earlier: unless you're willing to come forward with systemic changes -- a Constitutional Amendment would probably be the appropriate medium, but I'm open to other ideas -- that will safeguard whatever notion of "jurisprudence" you're trying to invoke (or delegate power in such a way that "incorrect" judicial decisions may be reversed), you're doing nothing more than complaining that you don't like particular judges. There's nothing wrong with that, of course, but it's tantamount to an admission that you're in the same boat as everyone else, i.e. whistling in the dark.

Sebastian: Logic applied to the text is textualism, and he has a problem with that so while he obviously means something else--but what is unknown.

I'm fairly sure that "logic applied to the text" isn't the usual definition of "textualism", although someone with a better legal dictionary than I should tackle that. For one thing, since we're waxing technical, it's utterly meaningless: logic is a mechanism for deriving conclusions from postulates, not a method of deriving legal interpretations from statutes. What you likely meant here is "common sense", which is a very different, and much slippier, thing.

To be clear about that remark, most interpretative methods utilize logical deduction as a means of inference but no method of which I'm aware restricts itself to solely logical deductions. The terms are too ill-defined, the scope of logical deduction too narrow, and the computational complexity required to process actual logical deduction is too high to permit it. There's also the problem that your inferences aren't taking truth values in 2 (you're lucky if you can even get them into a Boolean algebra) and that you can have contradictory axioms (e.g. "free speech" + "safety concerns" to take a fairly standard pairing) which means that your logic will be paraconsistent at best. Worse yet, you'll then have to come up with some metric measuring the proximity of a judicial decision (or "system of jurisprudence") to this paraconsistent intuitionist/fuzzy logic, and I barely even know what that means.

All of that is a long-winded way of saying "logic" sweeps a whole bunch of things under the carpet -- and it's precisely those things on which your definition-cum-argument falls down.

Katherine: And someone's religious faith strongly influences how they make moral decisions, but it's an incredibly lousy predictor of how moral a person they are.

...for a suitable definition of "moral", of course.

[OK, that was kinda cheap, but since the whole problem in this thread is the implicit presumption that certain entities exist extrinsic of those conceptualizing them, this shouldn't pass without comment.]

Last post on this subject, for real:

How to know if a decision is wrong—When, to reach the result, the judge must
1) mischaracterize the legal holdings of its precedents.
2) mischaracterize the facts of this case or previous cases to distinguish unfavorable precedents.
3) read the text of the Constitution or the statute in a way that the plain meaning of the words &/or their historical context cannot plausibly support. (We should be especially suspicious if that reading is inconsistent with the judge's other opinions, or results in an ad hoc test which provides the desired answer in this case without the risk of an undesirable answer in others.)
4) make an argument that logically fails on its own premises. (This is my problem with Roe, by the way. I believe strongly in the right to privacy, but the opinion is based partly on the premise that "the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer" of when life begins. But the judges cannot conclude that there is no compelling state interest unless they know that life does not begin at conception.)

I realize that all of this begs this question to some extent. I don't think it's possible to give an answer that does not beg the question. You haven’t really tried yet—prove me wrong if you can.

I don't think the conservative judges do any better than the liberals on #3 and #4, and I think they do quite a lot worse on #1 and #2. (There are exceptions, though; e.g. I think Kennedy does better than O’Connor or Stevens and is generally underrated.)

This is obviously intertwined with my belief that the results of the conservatives' decisions are substantively unjust. That’s inevitable, and it’s not a bad thing—it’s pretty much definitional that the way you judge will depend on what you believe is just. The words come from the same Latin root. A written Constitution limits that, but it doesn't, couldn't and was never meant to eliminate it.

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