Interesting comment

--Sebastian

Over at Left2Right what started out as a rather uninteresting discussion on jurisprudence got very interesting at the end of the comments (the last 30 or so out of 160+).  Proving that long comments threads aren't always unfruitful at the end.  Untenured Republican makes an interesting point toward the end:

You spend the first year of law school mastering a complex skill, which is sometimes referred to sweepingly as "thinking like a lawyer," and it is an extremely complex skill involving situating yourself in relation to linguistic meaning, power and history in a very different way than nonlawyers are accustomed. You have to get to the point where you can just see that an opinion is a good opinion, and eventually you "get it." That doesn't mean that a good opinion is a CAT scan of the legislature's brain(s). It means it is the *best* response in situ to the pile of paper put before the judge.

This is purely autobiographical, but you finally get really clear about how to do this. You start being able to see why one opinion is stronger (if it is) than the associated dissent.

The next year, you take Con Law. And all that stuff about "thinking like a lawyer"? They say "forget all that, it will just drive you crazy if you think like a lawyer here. This, my friends, is nothing but politics and preaching." I can't speak for others, but they minted one Federalist Society member right there, in me, not because I was persuaded that one of many methodologies on offer was the right one, least of all because it got me results Iiked politically. It was because I saw only one methodology on offer: thinking like a lawyer. And one option: do it, or don't do it. In Con Law, we don't.

Does thinking like a lawyer sometimes take us into difficult thickets? Sure (and the more bad opinions pile up, the more true that becomes--the case law just gets more and more complex when you have no choice but to make it up as you go in response to passing political pressures). But the cry for originalism is not a cry for some weird new thing. It is a cri de coeur: "why can't we read the First Amendment the way we read contracts and criminal statutes? We have all these reasons for reading carefully in these lesser areas, but when it gets really really important, we just say, aw to hell with it"?

Now lest this seem grossly overdrawn, that's not to say that there isn't a lot of "thinking like a lawyer" when later on, one uses the bad con law opinion as *precedent*. Then we can go back to thinking normally. So an awful lot of cases seem very reasonable from a middle height, and are only revealed as nonsense when you back away far enough. The only justice who backs away far enough with some consistency is Thomas. But his opinions sometimes look kooky as a result. After the other justices are done very carefully trying to figure out what their own substantive due process caselaw tells them about what they should do in this case, Thomas ambles over and says "your whole approach is wrong, because it was Privileges and Immunities that was meant to be incorporated, not Substantive Due Process." Well, if you go *all* the way back, that's pretty obviously right: the problem we have is because the early quasi-racists didn't like the intent, they blinked. And then their blink killed incorporation and created a precedent. So to bring incorporation back, you *had* to pretend it came in through some other clause, to harmonize the right result with the bad precedent. And then we're off and running.

...

So, to summarize: I don't think that there is an "originalist methodology" and a "non-originalist methodology." I think there is "thinking like a lawyer." Most justices and judges do it properly all the time. But in cases that serve as the wellspring for significant social or political change, it is often the case that thinking like a lawyer just *stops* in favor of pontificating and social engineering. Once the precedent has been minted, thinking like a lawyer resumes. And it is very very difficult to say "hold it, this is a bad opinion" because in those cases, there are usually *powerful* moral forces at work, and if you resist them for merely legalistic reasons, you look like a monster. For example, _Brown_ is just terrible. But having said that, if I were not in disguise, I'd have to defend myself from a swarm of people accusing me of some affection for the loathesome practice of school segregation. So we are intimidated into silence, and it is only later that we become perplexed--so how does the Equal Protection Clause work again? And then we have to struggle to clean up of jurisprudential mess that th moral victory brought about.

I think this pretty accurately reflects what is meant by the saying: "hard cases make bad law".  And I think this is some of the frustration I have with many of the equal protection cases.  In an egregious racial case we close our eyes and stretch the law.  Then we go back and try to pretend that the legal reasoning we used to obscure the fact that we were stretching is strong legal reasoning.  Then the pretense of strong legal reasoning gets stretched into other cases.  One or two steps removed and we have gotten past the cautionary instinct that you have when you know you are pushing the limits, because now you are just engaging in normal analysis on a highly questionable precedent that exists due to a very serious situation, but which you are now applying to a much less serious and much more questionable situation.  At some point you really need to refer back to the Constitution and say "Does this really make sense, or have we just gone off on a huge tangent?"  It is kind of like using the Patriot Act powers (passed in response to what some consider a serious terrorist threat) against car thieves.  You are using things which at best make sense under serious duress in normal everyday situations.  If you never ask, "Hey, didn't we just make that choice for the emergency?  Why are we using it for the everyday?" you don't realize how much you have deformed things. 

Comments

[Katherine]

Clever analogy to emergency powers. (Not being sarcastic, I think of Bolling v. Sharpe in those terms.) However, we're talking about legal theories for interpreting a Constitution that gives no instructions to judges about what legal theory to use to interpret it. No one has a good argument from the text about which legal theory is best, so we're making normative, consequentialist-type arguments. "Rule of law" or "individual rights" or "not subverting democracy" or what have you. Whether your legal theory either logically mandates, or provides real safeguards against, horrible, awful disgusting, unconscionable outcomes is pretty f***ing relevant in evaluating whether your theory's any good. So far I see no evidence of your theory preventing unconscionable results (John Yoo and Roger Taney both think they're making originalist arguments when their arguments make good originalists hair stand on end), and a fair bit of evidence of it logically requiring unconscionable results in some cases. The only Warren Court opinion I think there's a colorable argument has an unconscionable result is Roe v. Wade. (I don't think it's unconscionable but a whole lot of the public does so fair enough.) I think I do a better job distinguishing it than you do some of these cases--as I've said, it fails on its own premises. I suppose you could argue that I can't explain why a bad judge won't just make something up, but no one can ultimately explain why a bad judge won't just make something up.

I posted this on the same discussion. I'm posting it, in large part, to try to convince you to actually read that Greenberg and Litman article, "The Meaning of Original Meaning." The more I research the subject, the more I am convinced that this definition/application thing is the
root cause of 80-90% of our "that's crazy" and "what the hell is he/she talking about? Is s/he misunderstanding what I say on purpose?" moments in these discussions. And they make a much more coherent, persuasive case than I am going to be able to, with a fair bit of discussion and quotations from Scalia's arguments. Obviously I was predisposed to think they did a great job since I'd just independently reached the same conclusion, but I would really, really encourage you to read it if you can find the time.

Any originalists here--have you read the following article?

"The Meaning of Original Meaning", Mark D. Greenberg and Harry Litman, 86 Geo. L.J. 569.

I think the failure to recognize distinction between:

sense/extension
definition/application

or whatever you want to call these things, is THE single most important source of the division between self-defined originalists and non-originalists.

As Don argued in the first post, a very good-sized majority of lawyers and judges agree that there are some cases where you are bound by the Constitutional text's "original meaning" if you can figure it out:

Maybe original understanding is a reminder that English words can change their meaning over time, so we should be historically disciplined by facts about contemporary linguistic usage. (An old chestnut: if a constitutional provision stipulated that something must occur "biweekly," you'd want to know whether contemporaries meant "twice a week" or "once every two weeks.") I'm completely on board with that version of originalism. But if that's all there is, originalism is only a wrinkle on the hopeless strict constructionist view: after figuring out what ciontemporary usage was, we'll still be staring intently at the abstract words of constitutional provisions as if they dictated outcomes.

No less a non-originalist than Larry Tribe agrees with this; the example he gives in class is that "domestic tranquility" is clearly not referring to family law and it is dishonest to argue otherwise. Another example I can think of is the way judges across the political spectrum interpret the right to a jury trial in "suits at common law", as referring to a term of art: common law as opposed to equity.

There is also a widespread if not complete agreement that judges should NOT be bound by, in Don's words:
"anything like private mental states...Law has to be public; it's tyrannical to be told that the law consists not in the actual words made law, but in what some people thought about it."

I think the key distinction between originalists and non-originalists lies within this category:
Some originalists turn to contemporary understandings of the language, but move past the dictionary view and ask: what would their preferred actor(s) have taken the legal force of the constitutional language to be?

But this category is very, very badly drawn. (Not badly drawn by Don--it is a category that most originalists and conservatives tend to treat one way, and most non-originalists and liberals tend to treat another way.) It conceals the absolutely crucial sense/extension distinction (or the definition/application distinction).

Rather than repeat the examples of the law review article, here are some constitutional questions in which "what would their preferred actor(s) have taken the legal force of the constitutional language to be?" asks about the sense, or definition, of a word or phrase in the constitution:

When they say that "cruel and unusual" punishments are prohibited, do they mean "cruel and uncommon", or "cruel and excessive", or is it a commonly known term of art such that cruel and unusual cannot really be separated?

When they give Congress the power to "declare war", do they mean "start a war", or "give official legal recognition to a state of war", or something in between like "start a war by declaration as opposed to action"?

Here are some constitutional questions in which "what would their preferred actor(s) have taken the legal force of the constitutional language to be?" asks about the extent, or application of a clause of the Constitution:

"Does the cruel and unusual punishment clause ban flogging? Castration? Cutting off an ear? Execution? Execution for consensual sex or petty theft?"
"Does the equal protection clause ban legal segregation of the races?"
"Does the equal protection clause ban laws against miscegenation?"
"Does the equal protection clause prevent us from denying women the right to vote or the right to practice law? What about denying gay people the right to vote?"
"Does the first amendment protect forms of political expression other than nonverbal communication?"

You'll note that these are pretty inflammatory examples. I picked them for a reason, and it's not to show that originalists are bad people.

Scalia argues the answers to both sets of questions are dispositive:
When a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down. Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of First Amendment adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court's principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices are to be figured out.

He actually interprets "expressly prohibited by the text" pretty broadly at times. He claims, for example, that "In my view the Fourteenth Amendment's requirement of 'equal protection of the laws,' combined with the Thirteenth Amendment's abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid."

I find this to be results-driven, pretty transparently results-driven. These were two amendments passed separately. What does a categorical ban on slavery tell us about what it means to deny someone the equal protection of the law? It doesn’t address the separate but equal argument at all. The text of the 13th amendment doesn’t use the word “race” anymore than the 14th amendment text. There’s historical evidence that it’s all about race, but there’s also historical evidence that it was widely thought to allow racial segregation and bans on miscegenation, and those were widespread practices both before and after the amendment was passed.

I think it is pretty clear why he makes this argument: he does not want to accept that his theory argues that Brown v. Board of Education and Loving v. Virginia are wrongly decided.

At other times, Scalia actually admits that he would have trouble doing what his originalist theory tells him he ought to do:

“I hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.”

He still supports the theory as a lesser evil. Of course, part of the reason he can do so is that those awful judicial activists on the Warren court did the dirty work and he can just uphold it as a matter of stare decisis. He also probably trusts the public not to write statutes requiring flogging, legal segregation, or banning miscegenation.

Fed Society types at my law school would argue that this shows Scalia isn’t hard core enough, doesn’t have enough integrity, fades & imposes his moral views instead of The Law.

I don’t see it that way, because as a liberal I have an even more extreme version of the same reaction. It’s not just that I think flogging and segregation and miscegenation bans are wrong. It’s not just that I think flogging is cruel and unusual, or that segregated schools and miscegenation bans violate equal protection. It’s that I think: if “no cruel and unusual punishment” doesn’t forbid brutal beatings, it doesn’t forbid anything; it protects nothing of value and has no force or meaning that I can recognize. If “equal protection under the law” doesn’t protect against miscegenation laws and legal segregation, it protects nothing of value and has no force or meaning that I can recognize.

I also have the reaction much more often than Scalia does, and I have it in response to some cases where it is not so implausible that a legislature would pass such a law. I also am perhaps more acutely aware than Scalia that the democratic supermajority who supposedly authorized all this was actually a rather pathetic minority of the people who should’ve had the right to vote. They would’ve denied me the right to vote—they practiced slavery for God’s sake. And now I’m supposed to accept that mutilation, severe beating, and the execution of children are not “cruel and unusual” for constitutional purposes because they thought it wasn’t cruel and they know best?

This is about when many liberals start to talk about originalists “reading the bill of rights for loopholes” or “making individual rights a dead letter” or “dragging us back 200 years by the roots of our hair” and “clubbing a live Constitution to death.” And we decide, “if that’s what ‘originalism’ requires, keep it the hell away from me.” We panic, and start babbling hokey-sounding stuff about “a living document”. We throw out the baby with the bathwater, and decide we also don’t care what the framers or ratifiers thought about the sense/definition of phrases like “cruel and unusual” or “declare war” or “Executive Power”.

Whereupon originalists are confirmed in their view that we are “lawless” “unelected judicial activists” or believers in “judicial tyranny” who are “just making up” our Constitutional arguments to impose our “subjective political views” on the electorate. And they start interpreting away. Since they have convinced themselves they can now rely on the traditions and practices that were accepted in 1789 (or the 1860s/70s) to tell them the original meaning of the Constitution, suddenly the text of the Constitution becomes crystal clear on all sorts of difficult issues.

Liberals see this, and wonder where the f*ck the clear text of the Constitution says any of these things, and whether the Federalist Society has collectively gone off the deep end and actually convinced themselves they are doing a mind-meld with James Madison and an indeterminate class of ratifiers. And round and round we go.

So, tell me: if I accepted that the original sense of a Constitutional clause or phrase or word is binding if we can figure it out, would you guys accept that the original application is not?

Or is this all old news to you and I’m overestimating the importance of it?

[Katherine]

"I think this pretty accurately reflects what is meant by the saying: "hard cases make bad law"."

Once more: to me, Brown v. Board of Ed. simply isn't a hard case--I don't just mean morally, I mean it's now almost universally accepted in American society that of course "equal protection" forbids legal segregation. If your constitutional theory makes it a hard case, that reflects at least a potential weakness in your constitutional theory. And indeed: I am convinced there is a basic logical error at the heart of this. So one more time: read that law review article.

[Frank]

Good post and comments. I feel like I really learned something.

I'm kinda disappointed about the flogging though.

[sidereal]

There isn't going to be any flogging?

I'm going back to bed.

[von]

"Thinking like a lawyer" presupposes that there is "thinking" going on, don't it?

Frankly, I never understood the phrase. If you can't explain the law to a layperson (whom we, in the secret cabal, say is not trained to "think like a lawyer") something's wrong -- you either don't understand the law well enough, the law is just plain stupid, or the layperson has a prejudice that just won't give. Even seemingly technical areas -- like the FRCP, FRE, patent laws, etc. -- are like that (to a greater or lesser extent*).

von

*Although the strange quirks of computing time under Rule 6 may be an exception ....

[von]

Of course, sometimes the answer is "we make it up as we go along," which is what has happened to patent claim interpretation. (Snark.)

[Donald Johnson]

I'm glad von made the point he made, because as a nonlawyer it would sound like an amateur whining about professionals if I did it. But since a precedent has been established, just what the heck is this "thinking like a lawyer" business? i remember the actor what's his name saying that at the beginning of "The Paper Chase" and it's always sounded like ludicrous self-puffery, though impressive when he said it. The rules that govern society shouldn't be like some exceptionally esoteric problem in philosophy or mathematics--if you can't explain them in lay terms then it starts to look like the claim of a sacred priesthood skilled in interpreting goat entrails.

[dmbeaster]

Re "thinking like a lawyer" -- I think your poster either got a weak legal education or missed the boat on a rather crucial concept.

Lawyers are taught to understand the policy and logic underlying codified law or common law principles -- not to simply memorize existing expressions of law. They are taught to understand the law as an expression of those ideas, which hopefully are expressed well in textual language, but frequently is only imperfectly expressed. "Thinking like a lawyer" at its core is to understand the interplay of language and policy -- not to be slavish to the text.

In 90+% of legal disputes that a lawyer actually deals with, this type of thinking is largely irrelevant because the law is usually pretty well defined as it relates to a paticular case. It really is a matter of finding the right application as opposed to redefining the law. But when you get on the fringes of what has been decided in the law, then lawyers are taught to argue from the underlying policies of the law since that is ultimately what the law is.

Constitutional law is an exception to this 90+% concept, and much of it involves delving in uderlying policy. Therefore, "thinking like a lawyer" as I am defining the concept is esssential, rather than a weakness.

The text of the Constitution is ambiguous and vague, so doing so is essential. The Constittuion only tried to express general concepts that are not defined in the document nor were many of them "terms of art" at the time because there was essentially no prior constitutional tradition when the document was written. The Constitution deliberately uses general language that is not subject to any one clear definition (sometimes, simply to get an agreement amongst people with very different ideas on what should be in the document -- a classic flaw in "original intent" theory -- which original intent?). So a great deal of Constitutional law requires reasoning from policy, and there is plenty of room for debate as to what policy is properly implied from the general words of the document.

Many people think this "weakness" is actually part of the genius of the Constitution. The drafters knew they were crafting a vague general document that must be interpreted to have meaning, and they thought that was a good idea itself. In other words, the "original intent" included an understanding that it must constantly be re-interpreted in new siutations.

In our times, there are scholarly bodies devoted to drafting model laws for adoption by state legislatures (UCC is the most famous example), and they have gotten very good at the craft of drafting very effective texts (which, oddly, results in a lot of state law being drafted better than federal laws, becasue the state legislatures do not try to do it themselves).

If you were to compare the Constitution to that type of legal draftsmanship, the Constitution would flunk because of its vaguenesss and other inherent problems. For example, modern statutory schemes have a "definitions" section so that it is clear what the intended meaning is of the legal terms being employed.

-------

"Hard cases make bad law" -- here's an anecdote that also explains the idea. In response to an argument with an emotional appeal in it, the judge responded that "I am here to give you my legal judgment, not to do what I personally think is right or wrong."

Personal feelings that a decision should go a certain way encourages a judge to bend the law to get that result. This goes on all the time, and is not automatically a bad thing -- you want a judge who tries to blend a sense of fairness with the law. But ultimately, he is supposed to apply the concept of fairness as already embodied in existing law, rather than on an ad hoc personal basis. Hard cases torture the judge's personal sense of right or wrong to the extent the judge becomes blinded to legal judgment. Appellate judges must explain their result, and make "bad law" with their tortured explanantion since they do not admit that the decision flows from their personal feelings rather than a legal judgment.

But your poster's example to Brown v. Bd of Educ makes no sense. The concept of equal protection has a strong moral or social engineering flavor to it -- it is a vague undefined term that expresses a moral feeling as part of the law itself. To divorce those considerations from the term is to miss the boat.

[CaseyL]

"Thinking like a lawyer" is not lay thinking, von. People don't spend 3 years in law school and take bar exams just to learn and regurgitate case histories; they learn a high-order critical thinking model. If law was easy, everyone would be a lawyer. If legal thinking was easy, we wouldn't have disagreements over what laws and judicial decisions meant.

Oh, and speaking of patent claims: the latest buzz is that the USPTO is, in fact, too lax in examining and granting patents. The pendulum's about to swing the other way - more towards Japan's model, which grants only about 40% of the applications it examines.

[dmbeaster]

Don Johnson

von is right -- there is no specific meaning to the phrase "thinking like a lawyer" -- hence the confusion to laypeople.

I think it is most typically used to describe the talent of being able to see and argue effectively both sides of a question, which makes you a much more effective advocate since you sense how well your argument will match up against the other side's best argument. Or does it tend to make one duplicitous?

Note that this is not the sense in which it is being discussed in the post or in my comment above. Just more vagueness from us lawyers.

By the way, this type of thinking is important only because we rely on an adversarial method for deciding legal questions, and rely on hired advocates to present only one side of the question. It is not the only way to do administer justice.

Or as a law professor once described the adversarial system; two trains are racing toward one another on the same track, and the truth squirts out of the resulting collision like squeezing a bar of wet soap.

[bob mcmanus]

Sebastian showed some interest in the philosophical discussion of "vagueness" recently. I am sure it is already being done intensively, but the modern philosophy of language and epistemology surely could be useful here. I know little more than would give me the ability to drop names like Quine, Davidson, Rorty, tho I spend way too much time at Stanford etc trying to learn.

Crudely, there is no "real" or "ideal" meaning or interpretation of a word or concept. The meaning of a word lies in its usage and utility,epiricism and pragmatism. This does not say words mean anything an individual wants them to mean, for she can rarely get away with that.

"Unlike Brooke I'm not going to pretend to believe that using language in a manner that uniquely comports with my political preference happens to be the only way to make language "comport with reality." One could offer a long Quinean or even Rortian story about this. Or not. I prefer not." ...Yglesias, yesterday. Whatever he meant, I think he is fun.

When I say "law is politics" this is part of what I mean.

We are currently arguing over the meaning of "consensus" (on capital punishment). Originalists or conservatives want the meaning to be factual or real or ideal. I think this is part of a meta-argument on realism or idealism.But these are simply rhetorical arguments in a political process of achieving a consensus on "consensus."

There be actual philosophers here, and I should refrain
from showing my ignorance. I am not sure I made the point I wanted to anyway.

Ghandi. Ghandhi. Gandi.

[LizardBreath]

The Constitution was drafted by people working within the British system of common law, in which fundamental rights were defined by unelected judges as a matter of course. Slavery was abolished on British soil (albeit not throughout the Empire) by judicial fiat in 1772, based on the moral intuition of one judge.

Now, you can argue that this is a bad way to run things, but to the drafters of the Constitution, it was normal and expected -- the founding of the US didn't involve an abandonment of common law and switch to civil law; law was still, in a large part, what any given judge thought was right, based on the writings of earlier judges and higher courts. The Bill of Rights isn't written with the detail thatwould allow it to be interpreted like a statute. If the eighteenth century meaning of "cruel and unusual" were intended to be made permanent, a laundry-list of punishments could have been permitted and forbidden. Instead, the general concept was laid down, and the specific enforcement thereof was left to judicial discretion.

I can't see strict originalism, then, as at all faithful to the intent of the framers. They lived in and expected a legal system based on evolving judicial discretion; treating the Constitution as a statute is alien to that tradition.

[R J Keefe]

Thinking like a lawyer, it seems to me, means thinking like an insurer. Lawyers either take immense pains to ensure that their clients will never wind up in court, or they take immense pains to show - in court - that the insurance wasn't painstaking enough.

[hilzoy]

I want to reiterate part of Katherine's point, though I suspect that she and I disagree later in the story. (For the record, I am acutely aware of not having anything like the background I'd need to be confident of my views here.) If a Con Law professor said to me, "This, my friends, is nothing but politics and preaching.", I'd be appalled. I want to think like a lawyer throughout. (I haven't been through the first year of law school, so I may not know what this means, but then again I did grow up surrounded by law professors, so maybe that's a good substitute.) It is for this reason that I described myself, in the last thread, as a "textualist": I meant that while I am prepared to consider "it's all politics" as a descriptive account of past judicial practice, I am completely not prepared to accept it as a normative theory of legal interpretation.

I take this to imply exactly what Katherine says it does about "domestic tranquility" and what the L2R person said about "biweekly". And I think that to "interpret" 'domestic' to mean 'concerning the family' would be completely illegitimate, and 'judicial activism', regardless of the marvelous consequences that such an interpretation might have. So far, I'm with both Katherine and Sebastian. And I suspect I'm closer to Sebastian than Katherine when it comes to questions like: what if the most plausible interpretation of the 14th amendment shows that it doesn't protect anything worth protecting? In that case I say: pass another amendment. Laws are laws; wishes are wishes; there's a difference, and the same side of me that would protest any curtailment of Nazis' right to march through Skokie would also protest the extension of the Constitution to cases it does not cover on the grounds that it ought to, where that extension is effected by judges, not legislatures and referenda.

My big, big difference with originalists comes at a different point. As I said in the last thread, I think that if you accept the distinction between meaning and extension, then any time the authors of a text take that text to allow X and we are inclined to think it doesn't, there are two possible reasons for this disagreement. (1) We and they want to take that text to have different meanings. If we want to go with ours, then we are trying to change the meaning of the text. (2) We and they have the same meaning in mind, but differ about what is in the sets of things picked out by the various terms of the text. In this case, we are not trying to change the meaning at all. As I said in the last thread, when we allow Utah to have Senators, contrary to practice in 1789, this is not because we are changing the meaning of the word 'state'. The extension of that term has changed, and it would require a change in meaning to exclude Utah now.

One change of meaning that would allow us to deny Senators to Utah would be to substitute 'states in existence in 1789' for 'states'. These two terms had the same extension in 1789, obviously. But they did not have the same meaning, even then. And the authors of the Constitution chose to assign Senators not to "states in existence in 1789' but to 'states', period. If we were to claim that only those states in existence in 1789 get Senators, we would be proposing to change the meaning of the text just as surely as if we were to claim that only red/blue states should have Senators. The fact that the meaning we propose to substitute look 'deferential' to the authors of the Constitution should not blind us to the fact that we are proposing to substitute our views for theirs.

Moving to an example that, while still imaginary, is closer to cases of actual interest: suppose that the Constitution said: Every person who is a citizen of the United States, and who is over 18, shall be able to vote in federal elections. And suppose that they nonetheless denied the franchise to women, saying something like what the judge Katherine cited in the last thread said:

"Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor."

-- And suppose that the authors of the Constitution, as well as judges for the next century or so, interpreted my imaginary 'franchise for persons' clause not to extend the franchise to women on some such grounds. (Nature shows us that man is to be our protector, through the laws he adopts and in other ways; besides, our intellects would not be fitted to governance even if we were not wholly occupied with the management of our homes and the raising of our children. Or whatever.)

Now: I would think that in this imaginary case, I would argue that the Constitution required extending the franchise to women, on the following grounds. (a) what "nature shows us" about the subordination of men to women is nowhere mentioned in the Constitution as a reason for denying the franchise to anyone. (b) Nature does not show us what those who denied women the franchise said it does. (c) In any case, women are persons in the sense that allows us to interpret the Constitution (including not just this provision but others) in the most plausible way. (d) Therefore, the 'franchise for persons' clause implies that women should have the vote.

Note: this is not an argument that aims to change the meaning of any crucial term. On the contrary, it tries to interpret it faithfully. In making it, I would be arguing not that we should have a whole new meaning for 'person', but that a combination of mistakes about women and their natures and finding the very idea that women might vote ludicrous had prevented the authors of the Constitution from seeing this. (I find such arguments especially plausible when one can argue that the authors of a text would dismiss something out of hand as ludicrous because of prejudice: in precisely those cases one would not expect to find a reasoned, thoughtful dismissal. This affects my take on the relevance of earlier attitudes towards gay marriage.)

So the point is: in my hypothetical case, I claim to be interpreting my imaginary Constitutional clause faithfully, and coming to the conclusion that its authors were mistaken about its application. I have a story to tell about why. And if I am right, then to adopt a reading that is more deferential to their views about women is itself a form of judicial activism. It just doesn't look that way, for the same reason that restricting Senators to the original 13 states might not. But if the authors of my imaginary clause had meant their views about the extension of the term 'persons' to be binding, they would have written the clause to say so.

And this is, essentially, the view I take of interpretation generally. It's also why I regard Scalia's view as a form of judicial activism that looks deferential, but is not.

[liberal japonicus]

I've recommended this book before, but Solan's book entitled _The Language of Judges_ is quite good, and geared (I think) to the layperson. He also has a new book coming out soon, _Speaking of Crime : The Language of Criminal Justice_.

There is also Susan Phillips' _Ideology in the Language of Judges_, though I think that one requires some sociolinguistic or anthropology background.

[LizardBreath]

Now: I would think that in this imaginary case, I would argue that the Constitution required extending the franchise to women, on the following grounds. (a) what "nature shows us" about the subordination of men to women is nowhere mentioned in the Constitution as a reason for denying the franchise to anyone. (b) Nature does not show us what those who denied women the franchise said it does. (c) In any case, women are persons in the sense that allows us to interpret the Constitution (including not just this provision but others) in the most plausible way. (d) Therefore, the 'franchise for persons' clause implies that women should have the vote.

Note: this is not an argument that aims to change the meaning of any crucial term. On the contrary, it tries to interpret it faithfully. In making it, I would be arguing not that we should have a whole new meaning for 'person', but that a combination of mistakes about women and their natures and finding the very idea that women might vote ludicrous had prevented the authors of the Constitution from seeing this. (I find such arguments especially plausible when one can argue that the authors of a text would dismiss something out of hand as ludicrous because of prejudice: in precisely those cases one would not expect to find a reasoned, thoughtful dismissal. This affects my take on the relevance of earlier attitudes towards gay marriage.)

This is exactly right -- I would just like to add that, in accordance with my earlier comment, I believe that the framers recognized that the common law allowed for precisely this type of error correction.

[bob mcmanus]

SEP - Law and Language

[Jesurgislac]

italics begone!

[LizardBreath]

Italics off! Sorry about that.

[Anderson]

Not much to add here, but if Congress stepped up to the plate more often, would the Supreme Court be left with so many policy-making decisions?

[Ugh]

I think Sebastian's original point is a little different (though I don't want to put words in his mouth). I think he would say if one reads, e.g., Griswold standing alone, one would think that a huge factor that's driving the court is the the sanctity of marriage. However, if you skip to a few years later, any such notion has completely vanished from the Court's reasoning.

The same thing with Brown, which one could read that it was decided the way it was only because it involved harm to children, and the changed nature of public school in the U.S. since the time of Plessy (basically a massive change in facts). Yet later we have the court striking segregation in things like public transportation, in which there had been no change in facts since Plessy.

There just seems to be a disconnect in how you get from point A to point B when point A seemed to rely so heavily on X, which is completely absent from point B (which is supposedly a mere extension of point A).

[von]

"Thinking like a lawyer" is not lay thinking, von. People don't spend 3 years in law school and take bar exams just to learn and regurgitate case histories; they learn a high-order critical thinking model.

I disagree, at the risk of demeaning my own legal education.

Oh, and speaking of patent claims: the latest buzz is that the USPTO is, in fact, too lax in examining and granting patents.

They are. Too many patents, not enough skilled examiners, and (most importantly) an inability to get "real world" prior art into the office.

The pendulum's about to swing the other way - more towards Japan's model, which grants only about 40% of the applications it examines.

We'll see. The real pressure (on both the US and Japan) is to move toward the EU/international system.

[hilzoy]

Cool: a great mind and I think alike. From the latest in Don Herzog's series on originalism in L2R:

"The eighth amendment does not say "what we in 1790 think is cruel and unusual."  It says "cruel and unusual," full stop.  And I think it means what it says:  it refers to what actually is cruel and unusual, not to what people then or now believe is cruel and unusual.  Here textualism and originalism are profoundly at odds.  And then the "evolving standards" picture of the eighth amendment might not be wrongheaded at all.  It might simply mean, our best understanding of what is in fact cruel and unusual.  Yes, we could get that wrong, but we have to rely on our best judgment.  Try this:  your grandfather's will is opened; he wrote it eighteen years ago; he leaves you thousands of dollars and an instruction to buy the safest car available.  Do you buy the safest car available eighteen years ago?  No, of course not.  Now maybe constitutions should be read differently.  But it isn't obvious that they should."

[Slartibartfast]

The pendulum's about to swing the other way

Sorry, I've got a patent on the pendulum.

[Sebastian Holsclaw]

"So, tell me: if I accepted that the original sense of a Constitutional clause or phrase or word is binding if we can figure it out, would you guys accept that the original application is not?"

Sure, I think I've pretty much said that repeatedly. I think Hilzoy's poison example is good. If you make a law restricting poisonous liquids and later find out that mercury is a poison, it automatically becomes covered by the law. The fact that framers of the law believed that mercury was not a poison is irrelevant. This is easy with factual disputes. The problem comes when you want to talk about amorphous moral categories like fundamental rights or due process or privileges and immunities.

Privileges and immunities actually seems like a good case to look at. The framers of the amendment didn't want to allow former slaveholders to get around a specific list of citizenship traits so they made sure that everyone got all of them. The history of the clause since then is pathetic and ugly, but I don't at all go along with the idea that the phrase is a chipher. Subsequent jurisprudence is what has made it confusing--to the point now where the phrase is treated pretty much like an ugly joke.

The abandonment of the clause also led directly to the due process clause mess. The due process clause has now tried to take over all the things that the should have (but was not) protected by the idea of privileges and immunities of citizenship. You are certainly correct that Brown v. Board of Education IS perfectly good due process law, but from what I remember of my reading about the ruling, at the time (even by supporters) it was considered necessary but probably pushing right to the line of acceptable jurisprudence. As I talked about above, it was an emergency power that lawyers now want to use all the time.

But I drifted a bit. The problem with applying the poison understanding to moral issues is that it isn't always super clear when something which was once not realized to be a poison now is. That is why in such cases you often see an appeal to societal consensus. We aren't talking about scientific facts here, we are talking about societal decisions. In Thompson v. Oklahoma (saying you can't execute under 16-year old defendants) the Court appeals to a societal consensus by suggesting that every single legislature which has specifically considered an age limit has set it no lower than 16. It makes sense to incorporate things that society generally agrees on. That case was decided in 1988. I'm not sure I totally agree with Thompson, but I see the appeal of suggesting that anytime a legislature bothers to think about the issue they seem to choose an age that doesn't allow for execution of 15-year old offenders. This week's extension is a lot further than that. This week's extension uses an appeal to consensus, but the consensus doesn't actually exist. Here, legislatures have specifically considered the topic and decided that 16 and 17 year old offenders can be executed in some specific cases. Here it is quite regular even in non-death penalty states to punish offenders in that age-range with whatever punishment is most severe in that state--suggesting that the diminished capacity argument is not a consensus opinion either. So what has happened is that the Court has taken a precedent that really had some strong evidence of societal consensus and applying it in case where there is not good evidence of a societal consensus.

The problem with non-scientific questions being resolved in the poison fashion is that it is tough to tell when the categories really have changed. It isn't science, you can't just say "clearly gay marriage is exactly the same as heterosexual marriage" because that is a societal choice, not a law of the universe. The reason we fight over amendments is to signify and then ratify large changes in societal choices. Sometimes the changes come quietly, and we can say that they represent a real fundamental right. The right to travel may be somewhat like that. The problem when you have neither an amendment nor a real societal consensus is that you appeal to the authority granted by one of those two things, but you don't actually have it. A Court can probably do that a number of times, but eventually the people begin to wonder what the Court is doing. Eventually you get a gathering consensus that the Court is illegitamtely using power on a regular basis. That is a serious problem because it undermines the Court's ability to vindicate all of the more explicit rights. By trying to push through too many non-consensus and non-amendment items, you end up endangering all the other rights which are more specifically guaranteed because the authority of the Court to enforce them has been damaged.

Ugh is generally right about my thoughts. With Brown I would phrase it slightly differently. Race issues in the US have been nasty for a long time. Brown acted using a kind of emergency powers response. Using emergency powers considering the history of slavery makes a sort of sense. Trying to use it for everything that it has been used for since really doesn't.

This point is especially apt: "There just seems to be a disconnect in how you get from point A to point B when point A seemed to rely so heavily on X, which is completely absent from point B (which is supposedly a mere extension of point A)."

[bob mcmanus]

SEP - Interpretation and Coherence in Legal Reasoning

The Stanford articles can be difficult, in that the intent is to describe the current state of the discussion, including all reasonable arguments and counter-arguments. The above cites Ronald Dworkin, Robert Bork, and Stanley Fish, among many others.

Now I guess the usual procedure for a lawyer would be to have a position, and go to only one of the above, seeking supportive arguments, and leave it to his adversaries to do their own work. I am currently worrying about my reliance on cites, rather than creative thinking.

SEP articles can also be difficult to even understand, if you go in with a position and prejudices. I easily understood Stanley Fish, the rest are more difficult.

"[Fish] ...claiming that texts or originals cannot constrain judges at all in the way in which is commonly supposed, as texts do not have meanings in advance of particular interpretations of them. This seemingly radical indeterminacy is deceptive, however, for although Fish removes the constraints on interpretation provided by legal texts or supplementary norms of the judicial profession, he replaces them with the conditioning and training processes of ‘interpretive communities’, which ensure that, ‘...readers are already and always thinking within the norms, standards, criteria of evidence, purposes and goals of a shared enterprise’, such that, ‘the meanings available to them have been preselected by their professional training.’ (Fish 1989, 133)."

[bob mcmanus]

"Eventually you get a gathering consensus that the Court is illegitamtely using power on a regular basis."

Being old enough to remember the "Impeach Earl Warren" billboards, I strongly suspect SCOTUS will retain or regain some level of legitimacy, or at least as much as the other branches.

Again, I think this is a prejudice and a tool of [some]conservatives:just as they speak of a "respect for the presidency" separate from respect for the man; they want an authority for SCOTUS that actually doesn't exist, and never has. Sincerely. They like that kinda stuff.

[Some] Liberals said the Rehnquist Court was irrevocably damaged by Bush v Gore, but they apparently didn't really mean it.

[Brackets to avoid posting rule violations? Some points are hard to make without generalization.]

[hilzoy]

Sebastian: "We aren't talking about scientific facts here, we are talking about societal decisions."

This is the next point of dispute. I don't think that the alternative to "scientific facts" is "societal decisions". I can see that if you did think that, you'd end up with (something like) the following view: (a) for any non-scientific term, the extension depends on a "societal decision"; (b) unless society changes its decision about what that term refers to, the original extension stands; (c) that the approved way for society to make such decisions is via amendment. But, as I said, this only follows given a quite specific view of the alternatives to "scientific facts".

I take it to be possible for a society, and/or the authors of a text, to be wrong about the extension of non-scientific terms. Thus, I have no trouble at all with the thought that, for instance, the authors of the 14th amendment wrongly believed that it did not require the institution of marriage to be equally available to gays and straights. (We can debate later whether it does; the point here is: to me, it's perfectly conceivable in principle. This is the sort of thing about which mistakes can be made.) If I understand you, you think that the extension of the terms in the 14th (or any other) amendment is given by its authors' views, and thus that it is conceptually impossible for them to be mistaken about what its extension is. So any change would, as you say, have to be made legislatively.

Note: if I'm right, then the dispute between you and I has nothing at all to do with countenancing judicial activism, and everything to do with the possibility of error about the extension of non-scientific terms. (Or possibly: terms that aren't straightforwardly descriptive. Though I think this line is actually quite difficult to draw, and that the 'straightforwardness' of descriptive terms is less than it might seem.)

[Sebastian Holsclaw]

"I take it to be possible for a society, and/or the authors of a text, to be wrong about the extension of non-scientific terms."

Perhaps. But at that point I have to think we are hiding behind abstractions. 'Equality', 'Justice', and 'Fairness' mean different things in different contexts. We work out what they mean through a combination of explict legal wrangling and many other implicit areas of byplay.

The problem is that you are going to have serious trouble deciding between 'error' by the law's writers and 'misclassification' by advocates.

The idea of marriage is a classic example. The word describes a general practice that has been around in many cultures for thousands of years. It has grown up in specific ways in our society. If you want to support gay marriage, you define marriage as a union between two people. Most of the history of marriage in the west has been between one man and one woman--and the occasional attempt at more than one partner has been quashed (another societal decision). It is true that men and women are both people, but by trying to define marriage as between any two 'people' you aren't accurately describing the practice at all. If you want to change the practice to 'people' it isn't accurate to say that it was 'people' all along just because men and women are subclasses of 'people'. That wasn't the actual practice, and you aren't describing it properly. At this point Katherine is likely to mention Loving v. Virginia and inter-racial couples. Perhaps we could say that marriage used to be between a man and a woman of the same race. Such marriages would be seen as distasteful by racists, but well within the understandable definition. The problem with gay marriage coming about without legislation or amendment is that you get to it by misdescribing the practice as 'two people' and reasoning that two men or two women are 'two people' just like a man and a woman is. Your reasoning is correct, but you only got there because you misdescribe the term and start from a bad premise as a result.

Society could choose to expand the definition. But you can only get to gay marriage by 'extension' if you misdescribe marriage by turning it into a union of 'people'. And once again, why 'two' people? Why not 'a number' of people? Two is a number just like men and women are people. Katherine will say that discriminating against numbers of people is ok. It is now. Who knows what a judge will say tomorrow?

[tomsyl]

Although the strange quirks of computing time under Rule 6 may be an exception ....

When in doubt, I recommend following "(c) Rescinded." Hope that helps.

[SomeCallMeTim]

Wierd discussion. I've just skimmed, so maybe people have made these points, but ...

1. I don't think anyone thinks that Constitutional Law is the only area where "plain meaning" isn't plain. Every Contracts professor on earth says at one point that for every rule relating to construction, there is an equal and opposing rule.

2. My general sense is that there is widespread agreement that Brown is weak decision. But there is also widespread agreement that it is the correct decision. So, for 40-odd years after the decision, you made your name in Con Law coming up with a theory that accounts for the Brown decision. See, e.g., Ely and Democracy and Distrust.

3. To the extent that you get to a point where we are disagreeing about both the meaning of words and the way in which we evaluate the meaning of words, you end up (I believe) in the field of analytic philosophy. Unfortunately, (I believe - I'm not one) many of these people are leagues smarter than most lawyers, and move much more slowly; it's not at all clear to me that law professors don't butcher what the philospher types claim every bit as much as lit crit types apparently do. So lawyers (ala Posner) end up ignoring or misunderstanding or otherwise misusing various arguments about language. Mostly they ignore it.

4. Which leaves us roughly in the area of Hart, and the claim that law school and legal practice doesn't so much "teach you to think like a lawyer" as "acculturate your decision making process to be like those of others in the legal profession."

4 cent, and worth about precisely that much.

[Katherine]

"And I suspect I'm closer to Sebastian than Katherine when it comes to questions like: what if the most plausible interpretation of the 14th amendment shows that it doesn't protect anything worth protecting? "

Not precisely. I'm saying that:
1) if an interpretation of the 14th amendment shows that it doesn't protect anything, that's an argument against its plausibility because when you read the text it sounds like it protects quite a lot.
2) if your entire theory of constitutional interpretation leaves all of these sweeping statements in defense of individual rights not actually protecting invididual rights--a theory which you justify not because it is suggested by the text or the history but because you argue that it is the most moral way for judges to behave--it's a lousy theory.
3) if you're choosing between two equally plausible legal interpretations of the 14th amendment, it is all right to choose the one that has a more just result. But the question is rarely if ever actually presented this last way, because the Constitution is so full of values-laden language that if a provision conflicts with your sense of justice it will also seem to you to conflict with the text of the document. Hence "legal realism."
4) "Legal realism" is MUCH better as description than as guide for your own behavior. As a description I think it's pretty accurate, though not entirely so. As a guide for your own behavior, you have to be really, really careful about it. It's like the concept of objectivity in journalism: no one entirely succeeds, but it's worth making a sincere effort to try; if you stop that you're screwed. If legal realism tells you don't have to try, that's awful. But I think a healthy dose of legal realism does have two positive benefits as far as deciding cases:
a) if you acknowledge that almost all judges are results-driven, you are more likely to see it and be honest about it when you are being results-driven, and you may actually end up doing it less, not more.
b) if you acknowledge that you are make a moral choice about justice as well as a technical choice about the correct understanding text and precedent, you are more likely to take moral responsibility for the results of your decision instead of lying yourself into believing you have no choice in the matter.

A huge # of law profs tell their students, "when a decision says "clearly" or "obviously" watch out." I would give the same warning about Supreme court decisions that go on and on about the need to obey the law instead of making law, or be faithful to the original text, or really any decision that goes on and on about how we reached the result by doing our Constitutional duty instead of by choosing our preferences.

I should say: I developed this theory based on seeing legal realist judges do a better job than other sorts, not the other way around. I wondered why legal realists like Holmes and Brandeis seemed to do so much better a job, as far as both individual rights and judicial restraint, than their non-legal realist collagues. I mean, it could be a coincidence, but I don't think so.

John Marshall also seems to have a pretty wide legal realist streak.

Another source of confusion in this debate is that when some people say "the Constituion" they mean "the written document and the judicial interpretations and rulings about it", while when others say "the Constitution" they mean "the written document"; their term for "judicial interpretations and rulings on the Constitution" is "Constitutional law." And people also switch back and forth between the two usages.

"Liberals said the Rehnquist Court was irrevocably damaged by Bush v Gore, but they apparently didn't really mean it."

I said to myself before Padilla v. Rumsfeld: if they get this right, I'll forgive them Bush v. Gore. They punted Padilla but Hamdi and Rasul far exceeded my expectations.

Lawrence, Grutter, and this latest ruling also have something to do with it.

Also, more and more I blame O'Connor and Kennedy for Bush v. Gore. Frickin' lightweights.

[sidereal]

"If law was easy, everyone would be a lawyer."
Are you drunk?

Woohoo. . it's finally transformed into a gay marriage debate!

Sebastian,
"It is true that men and women are both people, but by trying to define marriage as between any two 'people' you aren't accurately describing the practice at all."

You aren't? I'd say you were with a high degree of accuracy. What you are implicitly calling for is maximum precision in definitions, but you have not attempted in any way to justify that standard.

"Your reasoning is correct, but you only got there because you misdescribe the term and start from a bad premise as a result."

'misdescribe' 'bad premise'. . you use these but you haven't justified them. You imply there's some sort of explicitly logical method to determine the proper specificity of the definition of marriage, but haven't provided it.

According to typical western conduct,
a) A marriage is a union between two mammals
b) A marriage is a union between two people
c) A marriage is a union between two unmarried people
d) A marriage is a union between one unmarried man and one unmarried woman
e) A marriage is a union between one unmarried man and one unmarried woman of the same ethnicity
f) A marriage is a union between one unmarried man and one unmarried woman of the same ethnicity and in which the man is at least as old as 10 years younger than the woman

These are all factually true, as long as one is willing to describe the Mormons as atypical. Now, you have decided that the 'correct' or 'understandable' level of specificity is at d), but have provided no evidence or any standard by which to determine which level of specificity is 'correct' or 'understandable'. Previous to this century e) was considered to be the 'correct' level of specificity. Were proponents of that belief factually incorrect? You can't say standards had changed. . miscegenation was still quite rare. We simply decided race was a typical, but not definitive, feature of marriage. We decided.

[Sebastian Holsclaw]

e) does not describe the practice of marriage in the Western World very well.

Cross ethnicity marriages were not impossible or unheard of in the thousands of year history of the pracitce. In some areas they were frowned upon, but that is a completely different issue.

[Sebastian Holsclaw]

The same goes for cross-religious marriages. If a Catholic married a Protestant in some countries, it would have been very frowned upon. You might get excommunicated. But the idea of marriage clearly encompassed cross-religious marriage, people just didn't like it.

[Justin]

Thinking like a lawyer, in my view, is like Dworkin's definition of law. It has no outside meaning AT ALL, and can only be defined internally (hence the confusion). To humanitarians studying law, it means learning how to apply logic, rigor, and structure to your thinking. To an engineer or a mathematician, it means to be able to think creative and to become tolerant to ambiguity. I think this is why the OP's off the cuff comment was so awkward, leading to confusion on both that site and this one.

[Ugh]

I said to myself before Padilla v. Rumsfeld: if they get this right, I'll forgive them Bush v. Gore. They punted Padilla but Hamdi and Rasul far exceeded my expectations.

Lawrence, Grutter, and this latest ruling also have something to do with it.

How do you throw Grutter in there (under the assumption that this is more than just a list of decisions whose result you like)?

[freelunch]

Philip Johnson is a a perfect example of the class of people who can think like a lawyer, extremely well in his case, but be completely unimpeded by any of the discoveries of science. If I recall correctly there have also been a few judges as well who have refused to allow the fact that forensic evidence proves that certain people were falsely convicted to be adequate justification to throw out the original verdict.

[von]

When in doubt, I recommend following "(c) Rescinded." Hope that helps.

Ahh, yes. Things were simplier when there were Courts had terms.

[dmbeaster]

"teach you to think like a lawyer" = "acculturate your decision making process to be like those of others in the legal profession."

Best definition yet.

[Slartibartfast]

"If law was easy, everyone would be a lawyer."

I think if you replace easy with funteresting, this could be a much more accurate statement. Not that everyone can be a lawyer, but neither can everyone be a doctor or an engineer or a nuclear physicist.

[Katherine]

Ugh--Grutter is a result a lot of liberals like, and I think the public perception of the Supreme Court is mainly results-driven.

I don't like it. I think it's a mess. There are a couple of places where the case law has become such a fragmented mess that you read an opinion, the three concurrences to the opinion, and the three dissents to the opinion, and to just about every one of them you can only answer: "this isn't right." And often also, "this isn't even wrong." (The latter happens most with Kennedy and O'Connor opinions.)

The equal protection case law is in a state like that right now. So is the establishment clause case law (that's a recent piece by Dahlia Lithwick on the subject), and so is the cruel and unusual punishment case law and the capital punishment case law in general.

[Anarch]

Another point in the Constitutional interpretation debate is: what if the writers (whether of the original Constitution) meant one thing but said another? The Equal Protection Clause leaps to mind as the archetype here. It's manifestly clear that they didn't really mean that everyone should receive "equal protection" in the literal sense -- as a number of people have pointed out here, von in particular, that's simply absurd -- but it's what they said and they didn't make any provisions to the contrary. So whatever theory of legal interpretation you employ is going to be screwed one way or the other: either you ignore the text and go for the supposed underlying meaning, or you take the text as written and ignore the intent.* You can't really do both.

[Reading the Constitution occasionally reminds me of reading homeworks from my bright-but-careless students. Yes, I think I know what they meant and yes, I think it's sort of right, but there's too much work missing to get full credit. Sloppy, sloppy, sloppy.]

* Or you make up your own half-assed partial interpretation; yes, you too can be the Supreme Court in your very own home!

[hilzoy]

Sebastian: I don't really agree with your point on marriage. But I also don't think that marriage is the crucial term needing interpretation. It's the 'equal protection' clause, which doesn't mention marriage. If one thinks that the EP clause should be interpreted to mean that privileges granted to one group by law should not be withheld from another, absent some compelling justification, then it seems to me that one has several options. One could legalize gay marriage. One could decline to do this, on the grounds that marriage is by definition between a man and a woman, but create some new legal institution which is just like marriage (legally), only between two members of the same sex. I don't really care which, myself; I see the concern about civil unions being a sort of second-class marriage, but it seems to me that courts could leave both options open.

What I think violates equal protection is to allow the institution of marriage, with all its legal privileges, to people who want to marry someone of the opposite sex, but to deny it or some exactly similar institution lacking only the historical restriction to male/female unions, to people who want to marry a person of the same sex.

[Phil]

If I recall correctly there have also been a few judges as well who have refused to allow the fact that forensic evidence proves that certain people were falsely convicted to be adequate justification to throw out the original verdict.

Oh, yes, and one of them is Antonin Scalia, who once famously remarked that "actual innocence" should not preclude the state from executing someone as long as the verdict was arrived at properly. The implications of that are staggering, and, I think, go a long way towards making Katherine's point about where the outcomes of one's theory of legal intepretation lead.

[Sebastian Holsclaw]

I don't like it. I think it's a mess. There are a couple of places where the case law has become such a fragmented mess that you read an opinion, the three concurrences to the opinion, and the three dissents to the opinion, and to just about every one of them you can only answer: "this isn't right." And often also, "this isn't even wrong." (The latter happens most with Kennedy and O'Connor opinions.)

The equal protection case law is in a state like that right now. So is the establishment clause case law (that's a recent piece by Dahlia Lithwick on the subject), and so is the cruel and unusual punishment case law and the capital punishment case law in general.

I don't get to 100% agree with you very often so I'd like to jump on this chance! I 100% agree with you.

"Oh, yes, and one of them is Antonin Scalia, who once famously remarked that "actual innocence" should not preclude the state from executing someone as long as the verdict was arrived at properly."

I would like to see the context of that idea. I would strongly suspect that it is in response to a hypothetical like: "Do you support the death penalty even though it risks executing innocent people?" with a response like "If someone were actually innocent but properly (in terms of process) convicted and it was impossible to prove their actual innocence the legal system is not precluded from executing someone by the fact that some of the people executed may be innocent."

[Catsy]

"If someone were actually innocent but properly (in terms of process) convicted and it was impossible to prove their actual innocence the legal system is not precluded from executing someone by the fact that some of the people executed may be innocent."

I realize that this is purely conjecture and that this was your hypothetical example, but as you were offering it as a potentially exculpatory context for Scalia's comment, I should point out that I don't find it exculpatory at all.

Process matters, but so does outcome. If the process is imperfect enough that we are killing innocent people in pursuit of the guilty, we have no business executing people.

[Katherine]

" But I also don't think that marriage is the crucial term needing interpretation. It's the 'equal protection' clause, which doesn't mention marriage. "

Second this. In all of these cases, LAMBDA or HRC argues that they should construe the word marriage in the statute to mean "between two adults".

Also, the "number" thing: the equal protection clause refers to "deny to any person," singular. Not persons and certainly not numbers. Nor is there any history of invidious discrimination against different-sized groups of people, nor is being in a different-sized group and immutable characteristic. Finally, I am very confident that not even Stephen Reinhardt or Larry Tribe whoever the archvillian liberal activist is these days is going to stand before the Supreme Court and argue that the basic laws of mathematics are unconstitutional. I mean, the analogy is just nonsense, on every level.

If you want to do the "polygamy slippery slope" game, it's the substantive due process-type arguments about how there is a right to marry the partner of your choice that you should use.

Anarch: What you're referring to is a literal v. purposive reading of the text, which sounds synonymous to the conflict between meaning v. intent but really isn't. When you do a purposive reading, you look at the clause and say, "what would a reasonable founder have meant by that?" Courts all do this all the time in contracts cases: "what would a reasonable party have meant by that?" As many contracts professor will tell you, "what would a reasonable party have meant" can in practice be close to indistinguishable from "what would I have meant", but there you are. In a constitutional case, where there are multiple drafters, even more ratifiers, and they're all dead, and it behinds the entire country forever, there's an stronger argument you should rely just on the text rather than whatever you can figure out about a party's original intentions.

In equal protection...I'm not sure that treating everyone exactly identically is actually the only "literal meaning." But it's basically unworkable. You can make historical argument that they're talking about protecting the rights of freed slaves from wrongful discrimination, but then you're left with a great big level of abstraction problem for which there's no completely satisfactory solution: is it supposted to protect just freed slaves, or all black people? Just black people, or all oppressed racial minorities? Just discrimination against oppressed racial minorities, or any discrimination based on race or ethnicity? Just race, or also religion? Just race and religion, or also gender and sexual orientation and all categories where there's a long history of invidious discrimination? Or all arbitrary and unfair discrimination, regardless of the history?

The least arbitrary line I can come up with is, the best sense I can make of both the history and the text is: "no invidious discrimination", or if you want something narrower or less question begging, "no discrimination of the sort that has the potential to culminate in enslavement, oppression, torture, war and the deaths of innocents." (I think it's illegal long before it gets there--as Justice Douglas says, there are a lot of cases where Constitution stops the ends of things by stopping the beginnings of things.)

These days, self-described textualists tend to say "race and race alone; colorblindness towards oppressed racial minorities and powerful racial majorites alike". This is odd because you can't get "race and race alone" from the text, and you can't get "oppressed minorities and powerful majorities" from the history. And if you look at what the widely accepted practices were, legal segregation and especially bans on miscegenation were thought to be allowed by the clause. Whereas now there is an overwhelming consensus that those things are not okay, even among originalists.

The "colorblindness" thing does give a nice clear answer and avoid the difficulty of figuring out what sorts of discrimination other than racial discrimination we ought to be suspicious of. But to me it's also pretty clearly the wrong place to draw the line--even if you grant their original assumptions, which you shouldn't. Precise but not accurate.

My understanding of this clause is probably very much informed by my knowledge of asylum law and asylum cases. Since I think they are directed towards much the same purpose, I don't think this shows a lack of integrity or what-have-you on my part. If there's another solution more faithful to both the text and the historical background, I'd certainly be receptive, but I've not heard one. As I said, the current case law is a mess.

[Catsy]

These days, self-described textualists tend to say "race and race alone; colorblindness towards oppressed racial minorities and powerful racial majorites alike".

Are men and women now considered separate races? Some would argue yes, but seriously, if you take "equal protection" as referring to race alone, I think it renders the phrase so toothless as to have no meaning. Add in gender, and you've got the beginnings of something meaningful.

In trying to infer the purpose or intent of the 14th Amendment, I come to the inescapable conclusion that "equal protection under the law" demands, as a starting point, that we not legislate discrimination based on intrinsic and unavoidable biological factors, or facts of one's birth.

Race? Out. Sexual orientation? Still subject to debate, but in my book, out. Gender? Out. Skin color, eyes, physical disabilities? Out. Who your parents were or what they did? Out.

[Katherine]

Catsy, yeah, immutability is one of the key things and I should have mentioned it in the definition itself. I think immutability + history of discrimination OR deprivation of a really fundamental right (e.g., sterilization, imprisonment, death, violation of the right to vote, access to court....some people have argued "right to education" but the Constitution is pretty much exclusively directed towards "negative human rights" so I don't know if that's so defensible.) is what ought to make the court take a long hard look at whether a law can be justifed. To treat gender and sexual orientation as no more suspicious than "owns home/rents home" or what have you seems nonsensical.

As for the execution of an innocent person: they get Texas cases all the time, it's not just hypothetical if he thinks about it. And I think he was actually saying: just because we think the defendant's innocent, if everything happened legally we have no authority to object. I may be misremembering. Scalia likes to be inflammatory and sometimes gets misinterpreted by liberals.

I am close to certain that we are executing innocent people not only because that's inevitable in any death penalty system, but because we are not willing to pay for a competent legal defense for indigent defendants. I am completely certain in Texas that people are being executed based more on their poverty, and thus the competence of their lawyers, than on the heinousness of their crimes or the lack of mitigating factors. This seems to me to be precisely the sort of harm that the 6th amendment guarantee of the right to counsel, the 14th amendment due process clause, and the 14th amendment equal protection clause are designed to prevent. Maybe also the cruel and unusual punishment clause, and certainly the cruel and unusual punishment clause as applied by some of the court's death penalty jurisdictions.

The trouble is, the death penalty cases come to the Supreme Court either challenging a statute on its face, or challenging a death sentence as applied to a particular defendant. All of the justices agree on this, and Scalia is really, really militant about it. It's hard to put the whole Texas death penalty system, as opposed to a particular defendant's death sentence, on trial. (There are good reasons for this in general. It seems really perverse though, since they've set up this ridiculously complex procedure supposedly to assure that the death sentence isn't imposed arbitrarily, that they now have to ignore all the evidence that this isn't working at all--meanwhile, they go on and on about a moral consensus against execution of minors that even I'm not convinced exists. Oy.) Anyway, I just don't think they're going to go the moratorium route again after how Furman worked out.

The right to counsel cases would be the most straightforward way to address this. The precedents on that issue are really stupid; they make it all about a personal judgment of the lawyer, so if the lawyer is completely overworked and underpaid and has no time to prepare a defense, that's taken as showing that the defendant did get adequate representation--though of course the defendant is equally screwed and got an equally bad defense whether it's the states underfunding of indigent defense or a lawyer's personal suckiness that's to blame. And so there is less than no incentive for Texas to shape up.

[Phil]

Seb, the original case in which Scalia made the comment was in Herrera v. Collins, apparently, in which he ruled that a defendant who discovered post-conviction evidence of actual innocence had no right to have that evidence examined by a court and could be legally executed. He's gone on to repeat that theory -- based entirely on a supposedly originalist reading -- many times in public. A Google search for "Scalia+'actual innocence'" will turn up plenty of legal commentary, some of which you will undoubtedly understand better than I do.

Scalia also remarked that if he were innocent and convicted of a capital crime, he'd rather be executed than spend his life in prison, because life imprisonment would, like, totally suck. I hope he was being glib.

[Bernard Yomtov]

Following up on Phil's comment, here is Scalia in Herrera:

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) "shocks" the dissenters' consciences, post, at 1, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of "conscience shocking" as a legal test.

So, according to Scalia, it is not only permissible to execute someone in the face of evidence of innocence, it is foolish to regard this as shocking to the conscience. Lovely man.

May I add that I have read this thread with great interest and considerable confusion. "Thinking like a lawyer?" My experience with lawyers, both mine and my enemies', has not given me any sense that they engage in some subtle and incomprehensible, to the layman, thought process, just that they have an understanding of rules and procedures which can be acquired by anyone of slightly above average intelligence willing to spend the time. I suspect the phrase is pure professional vanity.

If, however, it does mean something, for example, that it is possible to conclude that the segregated school system afforded equal protection of the laws, or that evidence of actual innocence ought not be allowed to be introduced whenever discovered, then I fail to see its value.

[JerryN]

Slightly OT, but here's a little SCOTUS humor courtesy of Jack Balkin.

[Sebastian Holsclaw]

Drat I just spent 30 minutes writing about the Herrara case and lost it when I pushed 'backspace'. Why does 'backspace' sometimes take you to the previous web page but usually delete the previous character? Anyone know?

In any case, the main part of my argument was that evidence of actual innocence in this case doesn't mean "Omigawd we found DNA evidence exonerating him, or look we have a tape showing someone else killing the victim". It uses evidence to mean "statements which if found to be true would have some weight on the determination of guilt". For instance if the defendant had long talks with a friend about how he could never hurt his mother, that would be evidence in that sense even if we also had his fingerprints on the murder weapon, her blood spattered on his body, and 4 eye-witnesses identifying him as the murderer. That is 'evidence', but not particularly useful evidence. The Herrara case relies on last minute affidavits regarding alleged statements of a now dead brother. Affidavits which contradict each other on important details about the murder.

Scalia's position is that you get a presumption of innocence before the jury verdict but not after. He believed that in strong cases of good evidence of innocence, non-habeas remedies would be utilized--a pardon being the main one that leaps to mind. I typically hate quoting O'connor, but for a change she is rather clear here:

Most critical of all, however, the affidavits pale when compared to the proof at trial. While some bits of circumstantial evidence can be explained, petitioner offers no plausible excuse for the most damaging piece of evidence, the signed letter in which petitioner confessed and offered to turn himself in. One could hardly ask for more unimpeachable - or more unimpeached - evidence of guilt.

The conclusion seems inescapable: petitioner is guilty. The dissent does not contend otherwise. Instead, it urges us to defer to the District Court's determination that petitioner's evidence was not "so insubstantial that it could be dismissed without any hearing at all." Post, at 444. I do not read the District Court's decision as making any such determination. Nowhere in its opinion did the District Court question the accuracy of the jury's verdict. Nor did it pass on the sufficiency of the affidavits. The District Court did not even suggest that it wished to hold an evidentiary hearing on petitioner's actual innocence claims. Indeed, the District Court apparently believed that a hearing would be futile, because the court could offer no relief in any event. As the court explained, claims of "newly discovered evidence bearing directly upon guilt or innocence" are not cognizable on habeas corpus "unless the petition implicates a constitutional violation." App. 38.

As the dissent admits, post, at 444, the District Court had an altogether different reason for entering a stay of execution. It believed, from a "sense of fairness and due process," App. 38, that petitioner should have the chance to present his affidavits to the state courts. Id., at 38-39; ante, at 397. But the District Court did not hold that the state courts should hold a hearing either; it instead ordered the habeas petition dismissed and the stay lifted once the state court action was filed, without further condition. App. 39. As [506 U.S. 390, 425] the Court of Appeals recognized, that rationale was insufficient to support the stay order. Texas courts do not recognize new evidence claims on collateral review. Id., at 67-68. Nor would they entertain petitioner's claim as a motion for a new trial; under Texas law, such motions must be made within 30 days of trial. See ante, at 400, 410; App. 68. Because petitioner could not have obtained relief - or even a hearing - through the state courts, it was error for the District Court to enter a stay permitting him to try.

Of course, the Texas courts would not be free to turn petitioner away if the Constitution required otherwise. But the District Court did not hold that the Constitution required them to entertain petitioner's claim. On these facts, that would be an extraordinary holding. Petitioner did not raise his claim shortly after Texas' 30 day limit expired; he raised it eight years too late. Consequently, the District Court would have had to conclude not that Texas' 30 day limit for new evidence claims was too short to comport with due process, but that applying an 8-year limit to petitioner would be. As the Court demonstrates today, see ante, at 408-411, there is little in fairness or history to support such a conclusion.

But even if the District Court did hold that further federal proceedings were warranted, surely it abused its discretion. The affidavits do not reveal a likelihood of actual innocence. See ante, at 393-395, 417-419; supra, at 423-427. In-person repetition of the affiants' accounts at an evidentiary hearing could not alter that; the accounts are, on their face and when compared to the proof at trial, unconvincing. As a result, further proceedings were improper even under the rather lax standard the dissent urges, for "`it plainly appear[ed] from the face of the petition and [the] exhibits annexed to it that the petitioner [wa]s not entitled to relief.'" Post, at 445 (quoting 28 U.S.C. 2254 Rule 4).

The abuse of discretion is particularly egregious given the procedural posture. The District Court actually entered an order staying the execution. Such stays on "second or [506 U.S. 390, 426] successive federal habeas petition[s] should be granted only when there are `substantial grounds upon which relief might be granted,'" Delo v. Stokes, 495 U.S. 320, 321 (1990) (quoting Barefoot v. Estelle, 463 U.S. 880, 895 (1983)), and only when the equities favor the petitioner, see Gomez v. United States Dist. Court for the Northern Dist. of Cal., 503 U.S. 653, 654 (1992) (Whether a claim is framed "as a habeas petition or as a 1983 action, [what is sought is] an equitable remedy. . . . A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief."). Petitioner's claim satisfied neither condition. The grounds petitioner offered in his habeas petition were anything but substantial. And the equities favored the State. Petitioner delayed presenting his new evidence until eight years after conviction - without offering a semblance of a reasonable excuse for the inordinate delay. At some point in time, the State's interest in finality must outweigh the prisoner's interest in yet another round of litigation. In this case, that point was well short of eight years.

Unless federal proceedings and relief - if they are to be had at all - are reserved for "extraordinarily high" and "truly persuasive demonstration[s] of `actual innocence'" that cannot be presented to state authorities, ante, at 417, the federal courts will be deluged with frivolous claims of actual innocence. Justice Jackson explained the dangers of such circumstances some 40 years ago:

"It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search." Brown v. Allen, 344 U.S. 443, 537 (1953) (concurring in result).

If the federal courts are to entertain claims of actual innocence, their attention, efforts, and energy must be reserved [506 U.S. 390, 427] for the truly extraordinary case; they ought not be forced to sort through the insubstantial and the incredible as well.

* * *

Ultimately, two things about this case are clear. First is what the Court does not hold. Nowhere does the Court state that the Constitution permits the execution of an actually innocent person. Instead, the Court assumes for the sake of argument that a truly persuasive demonstration of actual innocence would render any such execution unconstitutional, and that federal habeas relief would be warranted if no state avenue were open to process the claim. Second is what petitioner has not demonstrated. Petitioner has failed to make a persuasive showing of actual innocence. Not one judge - no state court judge, not the District Court Judge, none of the three judges of the Court of Appeals, and none of the Justices of this Court - has expressed doubt about petitioner's guilt. Accordingly, the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence. That difficult question remains open. If the Constitution's guarantees of fair procedure and the safeguards of clemency and pardon fulfill their historical mission, it may never require resolution at all.

[Bernard Yomtov]

All very well, Sebastian, but that is O'Connor, not Scalia.

I do not think the excerpt I provide is out of context. Scalia does not speak of "insubstantial" evidence. He speaks of evidence, period. To pay attention to newly discovered evidence, regardless of its quality, is not only wrong, but worthy of a sneer, according to this celebrated jurist.

We are supposed to rely on the pardon process? Get serious.

[Katherine]

The more I think about it the more it IS like contract law. In addition to originalism/non-originalism, the key debate, re-cast in contract law terms is:

Is it ever acceptable to do a purposive, as well as a literal, reading of the Constitutional text? To what extent is it acceptable?

There are "strict constructionists" who would claim the answer to this is "no." But anyone honest has to realize that sometimes the answer is "yes."

This is least controversial when it comes to areas of technological change. The protoptypical Con Law class example is that no one reads the clause authorizing the formation of an Army and a Navy, and concludes that the federal government lacks the power to establish the Air Force.

Another obvious example where technological changes forces you into a purposive reading is the Second Amendment. Assume you've accepted a constitutional challenge to the federal assault weapons ban. Staunch gun control supporters might argue that "the right to bear arms" should be applied only to the "arms" available in 1789. This seems very silly to me, and I think it's fair to say to most of us. Hard-core gun-rights people might argue that, since "the right to bear arms" applied to all weapons available in 1789, it ought to apply to all weapons available today. This seems even sillier to me because if logically extended it leaves you with a right to own nuclear, biological, and chemical weapons.

The literal text "the right of the people to keep and bear arms" does not give us any basis choosing between these extremes or for drawing a line between them. We have to do a purposive reading. In this case, unlike many amendments, there is a modifying clause:

"A well regulated Militia, being necessary to the security of a free State."

I'm going to leave aside the argument that "a well regulated militia" shows this is not an individual right at all--it's a whole other can of worms, and I hate when Clarence Thomas does that with the Establishment Clause so I won't do it here.

Okay, so we do seem to have a statement that the ultimate purpose of the right to bear arms is "the security of a free State".

But against whom are we trying to protect "the security of a free State"? I can see three possibilities:
1) Criminals, rebels and traitors?
2) External invaders?
3) The federal government?
Or some combination of the above?

If it's mainly the first one, that suggests that's there is a right to bear such arms as are necessary to protect yourself against criminals, so muskets and flintlocks really are not going to do the trick anymore. It also suggests that there's no right to own weapons that law-abiding citizens really could not use in self defense against criminals, but criminals could use to threaten or violate the security of law-abiding citizens. So WMD are right out, as are land mines. Probably also large bombs, cluster bombs, land mines, and rocket propelled grenades, heavy artillery, and full-on machine guns--most of those are much more useful to someone trying to kill a lot of people than to someone trying to protect his family or home. As far as current gun control laws, it seems like you could make good a case that it's all right to outlaw armor piercing bullets, but if the NRA can prove that the assault weapons ban is easily evaded if you're willing to disobey the law, then that's much harder to justify.

If we're also talking about security from foreign invasion or the federal government, on the other hand, then that would suggest that a much, much greater number of weapons would be protected--though still not a limitless amount.

The placement of the clause in a collection of rights individuals and to a lesser extent states have against the federal government suggests it might mean the federal government. But since Congress can call state militias into its service, and since the national government also has a power and implied duty to repel foreign invasions and insurrections, and since surely they're not trying to protect the state governments' right to dissolve the very union they're trying to form, and since this could increase the risk of rebellion and criminal activity.

On the other hand, even if they didn't WANT the states to rebel or secede, maybe they wanted the states to have some means to resist usurpations by a federal government when their last experience with a strong central government had led to, in their view, tyranny. Also, when the clause was written they were figuring on not having a standing army, and transportation and communication took much, much longer. So states and individual citizens probably did need to possess such arms as you could use to fight a military invasion, because they would be the first line of defense. The text's use of the term "security of a free state" also suggests that they are talking about more than merely protection against criminals. So maybe based on these facts we should make the test: "such arms as would be necessary to protect yourself against a foreign invader or a domestic tyrant".

But here we run into a host of other problems:
--those arms no longer exist. There is no weapon that can protect you against a smallpox terrorist attack or North Korean nuclear warhead or the U.S. military.
--those conditions about calling up the militia that led us to this interpretation no longer apply. If we are invaded, our military will be able to respond much faster and much more effectively than individual citizens ever could, even if we have the same range of weapons available to us.
--While requiring that all weapons available to foreign governments be made legal would put citizens at the mercy of not only criminals, but also the only form of "foreign invasion" that this country now has any reason to fear: a terrorist attack.

So if that was their purpose, it's now impossible to fulfill it, and it would undercut their other plausible purpose which it IS still possible to fulfill. So we'll go back to the "such arms as are reasonably necessary to protect yourself against a criminal" test. The ban on assault weapons is invalid because it would aid criminals at the expense of law-abiding citizens, but the ban on armor piercing bullets is sustained because it aids law-abiding citizens at the expense of criminals.

To von and Sebastian and any textualistss or originalist reading: have I faithfully applied the text of the Constitution, or have I just made a policy decision better left to the legislature? If the latter, was there any way I could have avoided it?

More specifically:

1) I started out on this path because of a change in technological conditions, but I ended up discussing changes in social and historical conditions. Was I wrong to do that? Was there a way I could have avoided it? In this case the social and technical changes were closely intertwined, but is that ever not true?

2) I keep talking about the founders' purposes. Am I actually looking at the founders' purposes, or am I using talk about their purposes to pretty up what is essentially a legislative, policy-type decision that I have no business making?

As it happens this outcome does NOT reflect my political preferences; gun control is not a real big issue for me because I don't think it accomplishes much compared to the political costs, but if Congress wanted to require something far more invasive than the assault weapons ban--individual bullet fingerprinting, a ban on handguns, whatever--and it wouldn't kill the Democrats politically, I would be totally cool with it. I don't think gun ownership is a meaningful safeguard of liberty, other than the liberty to own a gun, anymore. And I think the availability of handguns leads to many more crimes and accidents and deaths than it prevents. I'd oppose a ban on hunting rifles and target shooting, but I'd do it for the same reasons and with the same intensity that I'd oppose a ban on fishing, baseball, football, or skiiing.

So that's not what's going on here. But to someone who didn't know my views, it could sure LOOK like that's what's going on here.

I think what's actually going on is the following:
When a judge is dealing with a contract dispute that stems from changed circumstances that make it impossible or impracticable to fulfill the contract, and the parties cannot reach a settlement, one of the options available to the judge is to imply a term to the contract that reflects what a reasonable party would have done if he had anticipated these circumstances. As my contracts professor asked: in practice, is this any different from the judge implying a term to reflect what HE would have done if he anticipated the circumstances?

Probably there isn't. And yet, what's the alternative? You can ask the parties what they would have done, but they're obviously not going to give you the same or similar answers, or the case would've settled. It'd be good if you had a statutory default rule for situations like this, but there isn't one.

A purposive analysis of the Constitutional text asks: what would a reasonable founder or ratifier have done, if he had known about these changed circumstances? And you can certainly make an argument that there's probably not much functional difference in asking, what would I have done?

But I don't see an alternative.There's no way to call up James Madison or take a poll of the ratifiers, and even if they were available to testify they'd almost certainly disagree. Listing the weapons that were available and/or legal in 1789 doesn't get you anywhere, because you'd still be deciding that a reasonable founder would have wanted to make those the ONLY weapons you had a right to. Or you'd be assuming that a reasonable founder's ideas about whether to make all technologically feasible weapons legal would not have changed based on how the technology changed--it's mind-reading just as much as my approach is mind-reading. And those assumptions, unlike my assumptions, are stupid.

Still, I can understand the desire to limit judicial discretion. And I think there are four ways of keeping yourself honest.

One is that, if you really can determine what the meaning-as-sense of the original term is, you are obligated to follow it.

The second is, if you're doing a purposive reading of the text, you have to be reasonably precise and specific about what purpose you're imputing, and where you're getting it from. You can't just say you read the whole Constitution and it clearly is meant to establish "liberty" or "individual rights" or "minority rights" or "democracy", and then go ahead and impose the decision that best protects "liberty" or "individual rights." Griswold is horrendously sloppy about this. There are other "emanations and penumbras" in Constitutional Law, but they arose because they were thought to be clearly implied from, or necessary to protect rights that were specifically protected--where it would make no sense to protect A and not B, or you can't really protect A without B. They were individually justified, case by case; there's not a general authorization to create an emanation or penumbra when you think it's convenient, and that's what it looks like he's doing. He talks about "the right to privacy" and the "right to be let alone"--but that's so vague that it tells you nothing useful about where this right came from or where it's going. What couldn't be included in a right "to be let alone"? What amendment couldn't be said to support it?

I do still think he's getting at something that you can make a real case is constitutionally protected--but let's leave that argument aside for now. The point is, as written it would be generous to say it comes out half baked. Douglas is sloppy and Goldberg is worse. The fact that they all agree that this right exists, but can't get their story straight on what it is or where it came from, here or in later cases, further undercuts their credibility.

Which brings me to the third thing: I think the reason the privacy decisions are such a mess and are so controversial is that rather than letting this "emanation and penumbra" be defined gradually over time from the logic of the cases that can stand on their own merits, they try to build it from scratch. It's very different from the way the first amendment "emanations and penumbras" have worked, and I think that's one of the major reasons why many of those first amendment cases(as far as free speech, not the religion clauses) are pretty widely accepted across the political spectrum and among all nine Supreme Court justices, whereas the "right to privacy" is not. The other reason, obviously, is that it touches on abortion and now also gay rights.

The fourth thing is, I think it's all right to consider and discuss changed circumstances explicitly, and this includes historical and social circumstances as well as technological change. But I think you should restrict to yourself to either:
1) historical facts or changes in knowledge that can be proved to be true, or reasonably close to it
2) matters of historical interpretation, understanding and morality about which there is a real social consensus.

By #1 I mean: the Brown court shouldn't have been citing those silly educational studies when it had no intention of confining its holding to education. There was plenty of hard historical evidence available which it could have used to show that in practice, separate never was equal, never was meant to be equal, and there was no way for courts to make it equal.

Note that when it comes to questions of scientific or historical proof, I don't think you need universal acceptance of those truths. Obviously people in the South would have argued strongly against the Brown Court deciding that separate was not equal and never meant to be equal. I still think it would've been legitimate for the court to consider the evidence. As far as current case law goes, I would be willing to assert that just as we now know that the snail darter is an endangered species even though we did not when the ESA passed, we now know that:

--sexual orientation is an immutable characteristic.
--a fertilized but unimplanted embryo is not a life.
--there is no scientific basis for teaching intelligent design in biology class,
--The state of Texas is imposing death sentences in a way that reflects the income of the accused much more than the severity of a crime, has executed people in cases where a preponderance of the evidence available at the time of death showed the likelihood of their innocence, and has executed people in cases where their attorney's failure to present mitigating evidence was probably decisive in the jury's decision to impose a death sentence.

By #2 I mean:
as far as historical interpretation:
--Americans share a common historical understanding that slavery, legal segregation, and the denial of voting rights to women and black people were immoral mistakes that should never be repeated.
--Americans share a common understanding that the policies of the Soviet Union, the Taliban, Communist China, and Nazi Germany are illegitimate and deeply immoral and to be avoided at all costs.
--Americans do not share a common historical understanding about the economic policies this country has pursued, in really any decade.
--Americans do not share a common historical understanding of the lessons of the Vietnam War.
as far as morality:
--there is no societal consensus that abortion is a right.
--there is no societal consensus that execution is cruel and unusual.
--there is a societal consensus that torture and the whipping post are cruel and unusual.

If it passes the test for either #1 OR #2, I think it's legitimate to treat it as a change in the circumstances that should be considered in applying the constitutional text, just as it is legitimate to treat the technological change in weaponry as a change in the circumstances that shouldc be considered in the interpretation of the constitutional text.

Voila: that's my theory of interpretation. If you want to see court cases that I think follow this theory, the best place to go to the website of the South African Constitutional Court--keeping in mind that they're interpreting a Constitution that is much more recent, more detailed, and more liberal than the United States'. And the Supreme Court justice I think does the best job is Souter, followed by Ginsburg, but I didn't steal this approach from their decisons like I did from the South African court's.

[Timmy the Wonder Dog]

Brown v. Board of Ed. simply isn't a hard case

Easy as pie, just a reversal of a previous SCOTUS ruling. I wish the decision, itself, was similarly constructed. Stare decisis comes into play somewhere in the legal conversation.

[hilzoy]

This has nothing to do with Katherine's very interesting last comment; it's more to Sebastian's earlier 'scientific fact/societal decision' point.

I'm sure this must be a standard example, but it only just occurred to me: Consider the 8th Amendment's ban on 'excessive bail'. The straightforward meaning of excessive is: too great, or in the case of bail, too high. And I take it that was the meaning in 1789 as well. The most obvious way to take it, I think, is as an instruction to judges not to set bail too high, and a provision of a basis for appellate judges to strike down decisions about what bail to require of someone as 'excessive'.

But what counts as 'excessive bail'? This is obviously not a scientific/descriptive term. It's not like 'endangered', or 'poison'. It refers us to some norm that says something like this: bail should be set high enough to provide a reasonable assurance that the accused will show up, but not (much) higher, and how reasonable an assurance you need will depend in part on the severity of the crime and the resulting importance of not losing track of the accused. Or something like that. But that's not in the Constitution. That's just a principle that (it seems to me) makes sense, given what bail is for (and was for in 1789), and given that appealing to 'what X is for' is a good way to figure out what would count as 'excessive X'.

Is there an alternative to the 'judicial activism' involved in using this principle to interpret 'excessive bail'? Well, we might instead say: whatever actual sum of money counted as excessive in 1789 will count as excessive today. (Maybe in inflation-adjusted dollars.) After all, since 'excessive bail' is not a scientific term, but instead reflects a 'societal decision', and thus if we change our views about what's 'excessive', we should amend the Constitution. -- This, however, would require us to ask: if the authors of the Constitution meant to rule out bails over a given amount, why not just say so? If it would be too long, why not just say 'the bails commonly set in (insert reasonable jurisdiction here)?

The answer that leaps to my mind is: because that's a different concept altogether, albeit one that had the same extension in 1789. Had the authors of the Constitution wanted to set guidelines in dollars, they could have done so. Instead, they referred us to a norm: they told us not, 'don't set bail above this amount', but 'don't set excessive bail'. This leaves it to us to interpret what 'excessive' means. And it does so, I think, on purpose.

It's not all that hard to interpret 'excessive bail'. (Coming up with a specific rule that works in all cases might be, but getting the basic idea against which any such rule would have to be tested is not.) On my view, the sort of interpretation I did in my 3rd para. above respects the meaning of what was written more than the originalist alternative in the next para.: it takes 'excessive bail' to mean what it plainly does mean, namely 'bail that's too high', rather than substituting the quite different concept 'bail that people in 1789 believed was too high', and it has the additional advantage of not requiring endless amendments to keep track of changes in the amount of bail that it takes to reasonably assure that someone will show up in court.

It's a simple example, but I think it shows both why I reject the 'scientific fact/societal decision' dichotomy (and that without my having to get into metaethics and moral objectivity, which I'm sure is a relief to everyone); and also why I think originalism is not in fact faithful to texts.

[Sebastian Holsclaw]

Katherine, now that is a theory of jurisprudence I can really think about. Which is what I'm going to do. :)

[Mark Shawhan]

Hilzoy -- I'm not actually sure you're describing originalism accurately in this last post. My understanding, from reading some originalist writings (Randy Barnett in particular) is that they subscribe to your meaning/extension distinction, and would agree with you on the correct way to interpret "excessive bail" and similarly mutable concepts.

[Catsy]

Drat I just spent 30 minutes writing about the Herrara case and lost it when I pushed 'backspace'. Why does 'backspace' sometimes take you to the previous web page but usually delete the previous character? Anyone know?

It has to do with focus.

If your focus is in a text box, as mine is now while I'm typing, then Backspace is a command to delete a single character (or your whole selection, if you have a block of text selected). If you focus is on another part of the UI, such as the web page itself (you've just clicked on a link or some such), then Backspace takes you to the previous web page in your history.

This might not make much sense if you don't know what focus is in a programming sense, so to get the idea, browse to the ObWi main page, then click on any of the articles to go below the fold. Click in the text box and start typing a comment, then press Backspace. Should delete a character. Then click somewhere outside the text box--like the blue space bordering the outside--and press Backspace. Your browser should navigate back to the main page.

This works in IE and Firefox.

[Sebastian Holsclaw]

Thanks Catsy, that makes sense. When I'm writing long comments here I tend to have 4 or 5 windows open so I can look at quotes, cut and paste, see other comments, all without scrolling around all the time. What probably happened is I clicked onto the window with the main comment box, saw that the cursor was where something I wanted to delete was (when I left it to check something out, and pressed backspace.

[hilzoy]

Aw, Sebastian, no tabs? I never used to understand what all the fuss was about, but I now think tabs were invented for bloggers.

[Catsy]

Hey, IANAL, but I do work in a NOC. :)

[Catsy]

Tabs are one of those inventions that I never used to think much of (I used to dislike MDI), but after having gotten used to them, I wouldn't want to go back. Kinda like mousewheels.

[liberal japonicus]

Actually, I think if you accidentally backspace out of a page, you can click the arrow to move foward to the page you were working on and I think your post will still be there. It works that way in Firefox.

[Catsy]

It should, unless the page content was created by form submission.

IOW, it should always work on ObWi, which is not dynamic content.

[ral]

It seems one can obtain a legal education just by reading Obsidian Wings.

In one episode of The Paper Chase, Hart (the student) gives an impassioned speech about, if I recall correctly, a gardener who was mentioned in a will, where a judge made an obviously unjust ruling against the bequest based on a very clear statute. The question is, what is justice? Hart proposes that a creative judge, one who was truly great, would have found a way to render justice.

We live in an imperfect world, where decisions are rendered by imperfect human beings. How are we to arrange a society that somehow produces just results, where people accept the law without resort to violence on a large scale? This has come up before in other threads -- the very founding of this country was a resort to violence, but was justified based on ideas and written down with an appeal to reason and "a decent respect for the opinions of mankind."

The power of an argument, even in the Supreme Court, is the power to convince. This is not something that can come out of a computer, or a textual analysis, or a resort to brute force. You may call this "judging by results," but I think it is more than that. The Supreme Court has no army, nor even a police force. Its rulings have power because people on a large scale (including other branches of government, especially the Executive) are willing to give them credence.

In the drama, Hart is one of a very few who receive an A from Professor Kingsfield. I believe that the series was based closely on reality.

By the way, try "undo" (ctrl-Z) if you press a backspace you didn't mean. It won't always work, but sometimes it does.

[Anarch]

IOW, it should always work on ObWi, which is not dynamic content.

It frequently doesn't work in IE for reasons I've never fully understood.

[hilzoy]

Yeah, but who uses IE?

[ral]

I really should read more carefully before I post on technical matters. But, why do you compose in a browser? Why not use an editor, then cut and paste it in when it's ready?

[liberal japonicus]

That's a good question. I don't know why I don't do it, but I do compose in the browser. Part of it, I suppose is screen space, the other is that I usually don't set out to write a really long post. Does anyone write in an editor and paste it in here?

[hilzoy]

I don't know about anyone else, but it's much quicker for me to compose in a browser than to fire up a different program. This is clearly true for comments, but it's even true for writing posts: when I'm cutting and pasting from sources online, it's quicker to tab back and forth.

By the way, my last comment was meant to have fake 'mac snob' html tags, but the browser seems to have taken them literally and made them disappear, despite the fact that they showed up fine in preview. Oh well.

[Gromit]

Hilzoy: Aw, Sebastian, no tabs? I never used to understand what all the fuss was about, but I now think tabs were invented for bloggers.

I don't use tabs for a couple of reasons. One is habitual: Every time I try tabs, I end up closing the window at some point, forgetting that I have other open tabs, which is very frustrating. The other is that I use Exposé nearly constantly to navigate windows. For me it fills the same role as tabs but more efficiently, and tabs defeat the purpose by hiding visual content. To each his own, of course.

[ral]

Every time I try tabs, I end up closing the window at some point, forgetting that I have other open tabs, which is very frustrating.

The later version of Mozilla on my laptop (1.7.5) gives a warning prior to closing a window with multiple tabs, but the older version on my desktop does not. I really should upgrade *sigh*.

[Anarch]

Does anyone write in an editor and paste it in here?

Notepad, baby. Once you've programmed C++ in it, you can never go back. Although I'll compose directly in the browser for short missives because, let's face, I'm lazy.

[Chris]

Hi, I'm a little late to the discussion, but let me add a little weight to the thought that the original sense/connotation/intension is binding, but the original reference/denotation/extension is not. I have a manuscript defending the idea--if anyone's interested, send me an email.

Here's the theory as explained by Justice Sutherland in 1926 in Euclid v. Ambler Realty:

"[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…"

Here's the theory as explained by Justice Widener of the Australian High Court in 1959 in Ex Parte Profession Engineer's Association (quoted, e.g., here):

We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.

For a few other comment threads, see here, here, here, and here.

[Chris]

Sorry, that's Justice Windeyer.

[Slartibartfast]

Once you've programmed C++ in it, you can never go back.

What C++ compiler comes without an editor? And don't tell me g++, or I'll have to beat you over the head with my Cygwin man pages.